Call NowEmail Now

by

A Short Overview of My Article “360 Deals and the California Talent Agencies Act: Are Record Labels Procuring Employment?”

No comments yet

Categories: Articles, Legal Issues, Music Industry, Record Labels

(Full article in the Articles tab.)

Many record labels are using 360 Deals to maintain revenue during the continuing uncertainty of the music industry.  Instead of making money mostly from record royalties and the exploitation of master recordings, 360 Deals allow the labels to either own or to share in the profits from all areas of artists’ careers, including: music publishing, live touring, merchandising, sponsorships, endorsements, websites, fan clubs and their associated ads, literary rights and acting.  Record labels have an incentive to solicit opportunities for artists in these areas because they share in the profits.  However, labels’ actions to create opportunities for artists may rise to the level of procuring employment in violation of the California Talent Agencies Act.

The California Talent Agencies Act (the “Act”) requires any person (including any company) who procures employment for an artist to become a licensed talent agent or agency by the California Labor Commissioner. See Cal. Lab. Code § 1700 et seq. (2008). Any person who is not licensed as a talent agent or agency is prohibited from procuring employment for the artist.  However, neither the Act nor any other analyses I have found actually define procurement.  Based upon my research, I created a definition of “procurement,” which is featured in the full article linked below.

In the music industry, as opposed to the television and film industries, music agents secure live performance engagements while managers handle all other aspects of the artists’ careers. Manager’s activities to secure employment opportunities for artists run in violation of the Act because most managers are not licensed talent agents.  Now with the popularity of 360 Deals, record labels are often pursuing some of the same opportunities that a manager would, such as securing sponsorships and endorsements, positions on tours, co-branding opportunities, and various other opportunities as outlined in the article.  These actions are also in violation of the Act since the labels are not licensed as talent agents or agencies.

The scope of violations can run across various aspects of an artist’s career, including live touring, merchandising, sponsorships and endorsements, fan clubs, video games, and so on.  The consequences of a lawsuit against a record label for violating the Act could void the entire 360 Deal, or sever the offending areas of the contract and cause the record label to relinquish all commissions earned from the illegal activity.  Backlash from artists and accompanying litigation in this area is just getting started, but there is definitely more to come.

Click below to read the full article:

“360 Deals and the California Talent Agencies Act:  Are Record Labels Procuring Employment? ” by: Erin M. Jacobson Published in Entertainment and Sports Lawyer, A Publication of the ABA Forum on the Entertainment and Sports Industries, Vol. 29, No. 3, Fall 2011

by

New article published!

No comments yet

Categories: Articles, Law, Legal Issues, Music Industry, Record Labels, Tags: ,

I am pleased to announce I have a new article published in the current issue of Entertainment and Sports Lawyer magazine.  If you would like to read the article, please click the link below.  There is also a link under the Articles section of this site.

Thanks for reading and I welcome your comments.

“360 Deals and the California Talent Agencies Act:  Are Record Labels Procuring Employment? ” by: Erin M. Jacobson Published in Entertainment and Sports Lawyer, A Publication of the ABA Forum on the Entertainment and Sports Industries, Vol. 29, No. 3, Fall 2011

by

Client Edgar Allan Poets at top of Roadrunner Records chart

No comments yet

Categories: Clients, Music, Tags: , , , , , ,

My client, Edgar Allan Poets, is currently on the top of the rock charts on the Roadrunner Records A&R page!   Please visit their page to check out the band’s music, as well as leave a great review and vote for them!

Here is the video for the band’s song “Cryptic Code”

by

UMG pays artists $0.08 on a music download

No comments yet

Categories: Business, Music, Music Industry, Record Labels

Digital Music News has posted some charts from Chuck D.’s lawsuit of how UMG calculates artist download royalties.  According to these charts, a UMG artist is paid $0.08 on a $0.99 download.  Why is this so low?  Part of the reason is that UMG takes a “container charge” deduction for these downloads.  A container charge is basically code for a “packaging deduction,” or in other words, the deduction labels would take for the cost of packaging (jewelcases, etc.) on actual physical product like CDs.  Why is UMG taking a packaging deduction on digital downloads that have no packaging?  Because they can.  They also take several other bogus deductions to make this entire calculation ridiculous.  I’m not saying every UMG deal is like this, but at least this one is.

On the other hand, artists distributing through TuneCore get $0.70 on a $0.99 download.

And people wonder why my clients like to be, and why I advise them to be, DIY.

View the accounting charts here.

© 2011 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, please provide a link to www.erinmjacobsonesq.com or a direct link to the post for others to read it.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.

by

Hangover II will be released on schedule

No comments yet

Categories: Copyright, Film, Infringement, Legal Disputes, Tags: , , , , , ,

The judge in the Hangover II dispute has ruled that the movie will be released in theatres as scheduled for Memorial Day weekend.

While the injunction to block the film’s release was denied, the film’s DVD release could still be stopped at a later date.  The copyright infringement suit is also allowed to proceed.  Judge Perry who is presiding over the case has commented that Whitmill has a good chance of succeeding on the merits of the copyright case.

Whitmill asked Warner Bros. for a $30 million settlement (finally, some settlement talks!), but it is predicted that number will decrease substantially now that the injunction has been denied.

More details here.  It will definitely be interesting to see how this case progresses.

© 2011 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, you may provide a link to www.erinmjacobsonesq.com or a direct link to the post for others to read it. You may not reprint this article without written permission from Erin M. Jacobson, Esq.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.

by

Hangover II Dispute Continues…

No comments yet

Categories: Copyright, Film, Infringement, Legal Disputes, Tags: , , , , , ,

Warner Bros. has asked the judge presiding over the Hangover II case not to enjoin (stop) the release of the movie.  (Article here.)  Warner Bros. claims Whitmill, the tattoo artist, would not win on the merits of the case because (amongst other reasons) he did not dispute the tattoo appearing in the first movie and it’s use in the sequel is a parody falling under the fair use defense.  While applying the tattoo on Ed Helm’s face for comedic value in the sequel may be a parody, is it really enough to be considered transformative?  In the 2 Live Crew case regarding Roy Orbison’s song “Pretty Woman,” the court ruled new value was added to “Pretty Woman” by updating the material with a more modern attitude.  Here, the tattoo has been given more comedic value, but it is unclear whether a court would view that as enough to be transformative.   It is also unclear as to what effect the film will have on the market value of the tattoo.  Are people going to flock to tattoo parlors to have their own facial version of this tattoo?  In addition, the entire tattoo was used in the film, which is being released for commercial (i.e. money-making) purposes.  Both of those weigh against a finding of fair use, so it will be interesting to see how the court will rule on fair use grounds.

There is also some discussion about copyrighting tattoos — the artwork is copyrightable, but that doesn’t mean the artist can have control over the tattoo-wearer’s body.  As previously posted, Whitmill has an agreement with Tyson in which Whitmill retains all ownership in the tattoo’s artwork.  I have not seen that document, so my question is — did that document also grant Tyson the right to reproduce, distribute, display and adapt the tattoo; allowing Tyson to use the tattoo in any way he saw fit since, after all, it is on his face? It would be hard for Tyson to not automatically do these things since he is filmed and photographed on a regular basis and the tattoo is freely visible at most times.

This suit is a great way for Whitmill to get some publicity, but why stop the release of a movie that will yield millions of dollars?  If Whitmill’s goal is increased publicity, being the man who stopped the release of a highly-anticipated film would not be the kind of publicity I would want.  Getting a settlement payment with points on the backend would be much more profitable.

Hangover II is set to open next weekend, so a decision should be forthcoming shortly.  Do you think the film’s release will be stopped?   Please let me know your thoughts in the comment thread.

© 2011 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, you may provide a link to www.erinmjacobsonesq.com or a direct link to the post for others to read it. You may not reprint this article without written permission from Erin M. Jacobson, Esq.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.

by

Tattoo Suit for Hangover II

No comments yet

Categories: Copyright, Film, Infringement, Legal Disputes, Tags: , , , , , , ,

Tattoo artist S. Victor Whitmill designed Mike Tyson’s unique facial tattoo.  He is now suing Warner Bros. Ent. for the (obviously fake) reproduction of the tattoo on Ed Helm’s face in ads for the film and the film itself.

Photo from here.

Whitmill had an agreement with Tyson that Whitmill would retain all ownership rights in the copyright to the tattoo.  According to copyright law, anyone who wishes to use the artwork owned by Whitmill has to contact Whitmill for a license to use the artwork.  Warner Bros. did not get permission to use the artwork.  The use may infringe several aspects of copyright ownership, including reproduction, distribution and adaptation.

Whitmill seeks an injunction — an order to stop the movie’s release.  Warner Bros. has not issued a comment.  While this could go to trial, I doubt it will.  Anyone else smell a settlement?

Original story here.

© 2011 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, you may provide a link to www.erinmjacobsonesq.com or a direct link to the post for others to read it. You may not reprint this article without written permission from Erin M. Jacobson, Esq.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.

by

Interesting Industry Updates

No comments yet

Categories: Legal Issues, Music Industry

I realize it has been a while since I have posted, but I have to attribute that to being busy taking care of matters for my clients.  I will be making an effort to post more regularly.  Please let me know if there is anything specific you would like to see on this site. ~Erin

To jump back in, here are some newsworthy industry updates that may interest you:

TuneCore Collects Performance Royalties:  It’s not just for distribution anymore.

The Faults of Facebook Music:  Why Facebook Music is overreaching, inconvenient and hasn’t quite figured it out yet.

Rob Zombie and the Rick James Estate lead a class action against UMG for digital download monies:  More litigation stemming from the Eminem case that categorized digital download monies under a record deal to be that of a license rather than royalties for record sales.

FCC Improperly Fined CBS Over the Janet Jackson Wardrobe Malfunction:  Does anyone even care about this anymore?  Apparently so.

© 2011 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, please provide a link to www.erinmjacobsonesq.com or a direct link to the post for others to read it.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.

by

Band Together 3 out now!

No comments yet

Categories: Charity, Clients

My client, Band Together, is an organization that uses music to bring attention to important issues affecting today’s world.  Band Together chooses music through an annual contest in which independent musicians submit their music to be judged by prominent industry leaders.  The winners of the contests are featured on the Band Together albums.  This year, all proceeds will benefit Youth Service America (www.ysa.org) and the What’s Your Issue Foundation (www.whatsyourissue.tv).

The newly released Band Together 3 album is available on iTunes and Amazon.  I hope you will support independent music for a great cause.  The official press release is below with more information on Band Together, the artists and this year’s supported  charities.

Band Together 3 Album Debuts to Encourage Youth Service

Young musicians from the US and UK win competition to inspire their peers to action

WASHINGTON, DC, September 15, 2010 – Six musicians between the ages of 13 and 25 are finalists in the 2010 What’s Your Issue competition for their original songs about the social and political issues that concern them. Through the resulting album Band Together 3, they hope to inspire their peers to take action in their communities.

British rapper Dan Bull (age 24) is one of the contributors, recording the song “America” to advocate for a new American healthcare system. After he fell seriously ill with peritonitis in 2008, he relied on the UK’s National Health Service for recovery.

“The competition gave me the incentive to put my thoughts together to try and dispel the myths about universal healthcare, and from first hand experience, show people in the USA how vital it is,” Bull said. “Having a ‘pre-existing condition’ myself, I wouldn’t have been insured in the USA. I believe I would now be dead if I had been an American citizen when I fell sick.”

Other musicians featured on the album are Hayley Reardon (age 13) from Marblehead, MA; Kimberly Paige (age 17) from Jacksonville, FL; Georgia Napolitano (age 18) from Los Angeles, CA; Cameron Ernst and Devon Feldmeth (age 21) from Los Angeles, CA; and Tiffany and Whitney Taubman (age 25 and 22) from West Hills, CA. Their tracks touch on issues ranging from middle school bullying to civil rights.

“We believe in the power of music to touch hearts and change minds on issues,” says What’s Your Issue founder HeathCliff Rothman.

Adds Steve Culbertson, President and CEO of Youth Service America: “This is great music, but it is only the first step. This album is about more than listening – it is about calling youth to service for important issues. We’ll be working to engage youth in more than 100 countries this year through Global Youth Service Day to address issues in these songs.”

Youth can learn more about the musicians, their songs, and how to take action to create positive change at the website www.geturgoodon.org, an online community led by Miley Cyrus and Youth Service America that connects music and community service.

Band Together 3 is the result of a global contest produced by the What’s Your Issue Foundation, with the support of YouTube, Apple, Sony Pictures and others. After youth submitted their songs through YouTube, a judging panel chose the final tracklist. The panel included industry insiders Pat Magnarella, the manager for the popular band Green Day, Jonathan McHugh, vice president of Island Def Jam Records, and Joe Lamond, the President and CEO of the National Association of Music Merchants.

The songs span the genres of rock, rap, pop and country, and can be downloaded via online stores including iTunes and Amazon. Proceeds from album sales will be split between Youth Service America and the What’s Your Issue Foundation.

About Youth Service America

Youth Service America improves communities by increasing the number and the diversity of young people, age 5-25, serving in substantive roles. Learn more at www.ysa.org.

About What’s Your Issue Foundation

The What’s Your Issue Foundation is a national not-for-profit organization which runs an internet-based film and song competition, as well as Y/E, The Young Entrepreneur Network and a program of Video Tutorials. Learn more at www.whatsyourissue.tv.

About Band Together

Band Together empowers musicians to impact social causes through benefit albums and innovative non-profit and corporate partnerships. Learn more at www.bandtogether.org.

1 2 10 11 12 13 14 15 16