Call NowEmail Now

by

Contract Language Explained: “In all media now known or hereafter devised”

No comments yet

Categories: Business, Digital Distribution, Law, Music, Music Contracts, Music Industry, Music Publishing, Record Labels, Tags: , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

music-791631_640It’s possible that you have seen or heard of the contract phrase “in all media now known or hereafter devised” or some similar variation.

In music contracts, this language is usually used to define in what media your music can be used.  This phrase allows a company that has the rights to your music to use the music in the formats currently used at the time the contract is signed, as well as any new formats that are invented in the future (and may or may not be known at the time of signing).

For example, pretend that this is 1995, the most popular music format is still CDs, and MP3s had not hit the scene yet.  If you signed a deal at that time that said the company had rights to your music “in all media now known or hereafter devised,” then that company also had the rights to start reproducing and distributing your music in MP3 format once that medium started being used circa 1998.

If you are signing a deal now with that language, the company can probably use your music on vinyl, cassette, CD, MP3/other digital file formats, and whatever they think of next.  So when they start implanting microchips with music, you can bet your music will probably be on that too.

Got questions on your contract?  Schedule a consultation now to get answers!

 

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or mattersThis article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice.   The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on,act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

by

Erin M. Jacobson on USC’s Music Career Panel with Randy Jackson

No comments yet

Categories: Music, Music Industry, Speaking, Tags: , , , , , , , , , , ,

I had the privilege of speaking on the Music Career Panel put on by USC’s Thornton School of Music.  The event was moderated by Randy Jackson, producer and former judge on American Idol.

Here are some photos from the event.

by

January Music Business and Legal Round-Up

No comments yet

Categories: Articles, Business, Copyright, Digital Distribution, Legal Disputes, Legal Issues, Music Industry, Royalties, Tags: , , , , , , ,

cowgirl, lasso, roundup

Image via freeimages.com

I’m trying something new where I do round up at the end of the month of some interesting stories or issues that have occurred during that month in the music industry. Please let me know if you like this new feature believe in the comments below.

First, you’ll want to check out my articles for January:

In other news:

The reports are in from 2015, and the industry numbers are actually up thanks to streaming, although digital sales have dropped. Some artists, like Adele, have proven they don’t need streaming to sell records.

Although streaming has upped some numbers, the artists aren’t getting paid. Spotify was hit with two class-action lawsuits for failure to properly pay royalties. They have now just instituted a new system for tracking and paying royalties. Some accusations claim that Spotify has not properly licensed much of the music that it plays and further that Spotify apparently doesn’t know who to pay. While there are issues that sometimes arise in the industry where finding the proper rights owner can be difficult to find, the majority of rights owners are easily able to be located and paid by those who take a few minutes to look for them.

Spotify has enough money to fight these lawsuits and they’ll probably be some sort of settlement along the way, however Spotify should’ve put a system in place in the very beginning to ensure streamlined and proper payment. This seems like the beginning of a lot of legal hassle for Spotify, but if truly not paying legitimate royalty recipients, it’s a legal hassle that they deserve.

And here are some predictions for 2016.  Let’s see if they come true…

 

by

Why Posting a Cover Song on YouTube is Copyright Infringement

4 comments

Categories: Articles, Copyright, Infringement, Legal Issues, Music, Music Industry, Music Publishing, Royalties, Social Media, Tags: , , , , , , , , , , , , ,

by Erin M. Jacobson, Esq.

Erin Jacobson music attorney music industry lawyer youtube cover song copyright infringement

New artists trying to get discovered will frequently cover famous songs and upload videos of them performing these songs on YouTube. Many artists do not realize that without securing the proper permissions, posting a cover song on YouTube is actually copyright infringement.

User-generated cover song videos require permission to use the composition and permission to synchronize the audio elements with the video.*

To cover a composition, one needs to get a mechanical license. A mechanical license allows someone to record a song that has already been recorded and distributed by another artist. A mechanical license is most often obtained through the Harry Fox Agency. The related royalty stream is called a “mechanical royalty” which is a royalty payable to a composition owner for the privilege of being allowed to record that composition. This is the 9.1 cent royalty often mentioned in the music business.

However, the mechanical license only covers audio recordings of the original composition. It does not cover the synchronization of the audio with the video portion, for which one needs to obtain a synchronization or “sync” license. This is where most people get tripped up because they don’t get a synchronization license from the composition owner (usually the music publisher).

An artist who does not get permission from the owner of the song he is covering to synchronize his cover version with the accompanying video is infringing the copyright of the original composition.  [tweetthis display_mode=”button_link”]Failure to get a sync license for your YouTube cover song video is copyright infringement.[/tweetthis]

The consequences of posting a cover song without the proper synchronization license vary. In some instances, the copyright owners of the original composition don’t know about the cover on YouTube or they choose to do nothing about it. In other cases, the copyright owners will send a DMCA takedown notice to YouTube and have the video taken down. Further still, someone who posts an unauthorized cover might get a cease-and-desist letter or the threat of legal action, and might actually get sued, leading to liability for a lot of money in copyright infringement damages.

Do you have more questions or need a license for your project?  Contact Erin now to get your questions answered.

* In the case of a cover song, the original master recording is not used because someone else is making his or her own recording of the song and therefore no label permission is necessary. If one plans to use the original master recording in a video, that person would have to go to the master owner (usually the record label) and get a master use license to be able to pair the master recording with the video. I won’t discuss the performance right here since YouTube and similar websites have blanket licenses from the performance rights organizations. However, if an artist is uploading these videos to his or her personal website, that artist is also liable for the payment of performance royalties.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or mattersThis article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice.   The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on,act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

 

by

New Interview on the Break the Business Podcast

No comments yet

Categories: Interview, Legal Issues, Music, Music Contracts, Music Industry, Music Industry Interviews, Tags: , , , , , , , , , , , , ,

music business podcast erin jacobson music lawyer attorney entertainment los angeles

I am honored to be featured on the Break the Business Podcast where I was interviewed about legal help for musicians and how to get it.  Listen to the episode Online or on iTunes.

Break the Business Podcast (Online / iTunes)

 

 

by

Everything You Need to Know About Using Album Artwork

2 comments

Categories: Articles, Business, Copyright, Music, Music Industry, Record Labels, Tags: , , , , , , , , , , , , , ,

cd-s-1481476-640x480

Image via freeimages.com

Artists seem to have a lot of confusion as to what artwork can and cannot be used on album covers and also who owns album artwork. In this article, I will cover the most common sources of album artwork and how that artwork is owned.

For the sake of convenience, I will refer to both artwork and photographs as the “work” or “works,” as the principles discussed herein apply to both.

1.  You created the work.

In this case you would likely create a piece of art and or take a photograph that you use on the album cover.  Absent any unusual circumstances, you should own and have the rights to use artwork you created or photographs you took.  If you are part of a band, it gets a little more complicated because one must note which member of the band created the work and what the agreement is within the band as to how the work will be owned.  A particular band member may retain ownership of the work as an individual and license the rights to the work to the band, or may assign ownership of the work to the band so that the band owns the rights.  If more than one member of the band created the work, they may be able to sign a simple Artwork Ownership Agreement, but again, it still needs to be determined whether those members will retain ownership of the work or assign ownership to the bands as an entity.  A band owning the work created by a single member or multiple members may be determined on a case-by-case basis or it might be based on a band agreement.

2.  Someone else created the work for you.

Usually this scenario plays out in one of two ways: either someone is hired by you or your band to create artwork for your album, or you hire a photographer to take photos of you or your band and then use the photograph(s) on the album.

Paying for something does not equate to ownership of it under copyright law. You may own a physical copy of the work – a photo print, a painting, a CD – but that does not automatically give you ownership rights in the copyright of the work itself.  If you have hired and paid an artist or photographer to create a visual image for your album cover, that artist or photographer will still own the copyright in the work unless that creator has assigned the copyright ownership of the work to you or your band.   The assignment of copyright will often include a higher fee and/or a payment of future royalties in exchange for the creator giving up his or her intellectual property rights.

If there was no transfer of copyright and the artist or photographer retains ownership of the work, you would need to get a license from the creator to use the work for your album cover, as well as for promotional and other uses associated with the album.  Again, this usually will involve a fee and/or possibly a royalty payment. Keep in mind that if the creator retains ownership, (s)he will be able to use or license the work for other purposes besides your album cover.  An example of this would be the creator giving a magazine permission to use a photograph of your band that the creator photographed.

Whether working with a photographer or artist, you should get the terms of the agreement in writing.  If the creator has given you a contract to sign, it would be wise to have a good music lawyer make sure the proper rights for uses related to album covers are granted in the language.   If not, these rights will need to be added.  If the creator retains copyright ownership, your lawyer may also be able to limit other uses granted by the creator. If the creator does not give you a contract, you should have your lawyer draft a contract so that the terms that are spelled out clearly.

3.  You got the work from the Internet or another source.

If you purchased a stock photo on the Internet, you will need to check the license provisions that come with that photo. Some photos do not allow for commercial uses, while others do allow for commercial uses, and yet others allow for commercial uses but with higher fees required.  You will have to choose a photo that allows for the rights that you will need for using the photo on your album cover and associated promotional uses. Using a photo that you like from the Internet without getting permission to use it is copyright infringement, even if you credit the source.

If there is a work that you like on the Internet that is not from a stock photo website or that you find offline, you will need to find out the identity of the owner of the work and contact that person to get a license for permission to use that work on your album cover.  Transfer of copyright ownership is probably a long shot in this scenario, but some creators might be willing to transfer ownership for the right price.

Again, consult with a good music attorney to make sure you are getting the rights you need for your specific situation.

Do you have questions that you’d like to get answered in an upcoming “Ask a Music Lawyer” article? Please send topic requests to askamusiclawyer@gmail.com. Please note that specific case advice cannot be given, and if you have questions pertaining to an issue you are personally experiencing, you should seek a consultation with a music attorney.

This post was originally published on Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

by

What Does “In Perpetuity” Mean?

No comments yet

Categories: Articles, Copyright, Law, Legal Issues, Music Contracts, Music Industry, Tags: , , , , , , , , , ,

Hand Time Pocketwatch Forever Perpetuity

Image via freeimages.com

There are certain contract terms that come up regularly in music and entertainment contracts and people often ask me what these common terms mean. One of the most common is the phrase “in perpetuity.” According to Black’s Law Dictionary, the definition of “in perpetuity” is “… that a thing is forever or for all time.”

In practice, the phrase “in perpetuity” usually applies to a transfer of rights or clauses that survive contract termination. For example, under a contract you might grant the rights to use your name and likeness in perpetuity, meaning that the company to which you granted those rights can use your name and likeness forever.

This phrase is also used in situations where certain contract clauses will survive termination of the contract. Contracts usually have an agreed upon term length, upon which the contract terminates after that duration has passed. For example, a contract might have a term of two or three years after which the contract ends and the parties stop working together. However, there may be other clauses within the contract – maybe a non-disclosure clause — that the parties have to abide by forever even though the actual term of the agreement is over and the parties are no longer working together. There are other clauses that are often stipulated to survive the contract term, however, they are mostly part of the “boilerplate” sections of the contract.

I’ll be doing more of the short articles explaining a few other common contract terms. If you like it please leave a comment below letting me know.

Do you have more questions about contract language or especially language specific to your situation? If so, please contact Erin today to schedule a consultation.*

 

*Consultations are available for CA residents only.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice.   The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

by

New Photos

No comments yet

Categories: Uncategorized

I recently took some photos for the website with fantastic photographer Allison Knight.  You’ll see some of the photos throughout my website, but here are a few more.

 

Clearly, the results speak for themselves!  Allison is also very personable and easy to work with.  To view more of Allison’s profile or book a session, visit her website Allison Knight Images.

by

How to Prove Someone Stole Your Band Name (Or Find Out if YOUR Band Name Is Causing a Legal Conflict)

No comments yet

Categories: Articles, Law, Legal Issues, Music Industry, Trademark, Tags: , , , , , , , , , , ,

Image from freeimages.com

Image from freeimages.com

Many musicians know that they need some protection for their band name, but are confused as to what type. In fact, musicians often ask me, “Do I need to copyright my band name?” Copyright, however, is a protection for creative works: compositions, recordings, films, artwork, merchandise designs, etc. Trademarks and servicemarks are what distinguish and identify sources of goods and services. In the case of band names, a trademark for a specific band name reflects back to what that band provides – a certain type of music, an image, a feeling or community for its fans.

For example, Van Halen and Aerosmith are both registered trademarks with the United States Patent and Trademark Office. They’re also both classic rock bands from the same time period, but a music listener knows he or she will be getting a different kind of music, feeling, image, etc. from each of those bands. As a non-music example, Coca-Cola and Pepsi are both brown-colored sodas, but a consumer knows that these two drinks and the expectations associated with them are different.

Whether you’ve already registered your band name or think you might register it in the near future, it’s important to understand the basics of trademark infringement lawsuits to avoid potential conflicts. Here are the three ways to prove an infringement on your band name – and to determine whether you’re infringing on someone else’s.

(Please note that I’m not a litigator and this explanation is only a general overview of the basic principles considered in a trademark infringement suit. Actual cases may include nuances not discussed in this article.)

1. Plaintiff owns the trademark

The plaintiff (the person bringing the lawsuit) must show that he or she owns the trademark that’s allegedly being infringed. A plaintiff is required to have a federal trademark registration in order to sue in federal court, and showing the federal registration creates a presumption of valid trademark ownership, although this presumption can be rebutted. Things start to get trickier when there are unregistered marks involved, bringing up common law state issues as well as examination of the prior uses of the marks.

2. Plaintiff has priority to use the mark

The proof required here is similar to that explained in the previous point. Someone with a federally registered trademark has a legal presumption that his or her mark is senior to the allegedly infringing mark, and that they therefore have priority of and exclusive rights to the mark in question. Again, this can be rebutted and can be complicated by unregistered marks and/or other issues.

 

3. The defendant’s mark will create a likelihood of confusion

Likelihood of confusion is the real meat of a trademark dispute. Basically, the court will compare the two trademarks to see if their similarity would be confusing to a consumer, and thus harmful to the senior mark. In relation to bands, it would depend on whether the two band names would cause confusion about which band is which.

Here are the factors:

Strength of the senior user’s mark

A court will look at the strength of the mark used in commerce first. Again, we can use Aerosmith as an example. The word “Aerosmith” doesn’t have any real meaning in the dictionary and is also not likely to be commonly associated with rock music; therefore, the name “Aerosmith” is very distinctive in identifying the band. This is much stronger than something like “Steven’s Band” or “Joe’s Rockin’ Band,” which could be applied to any musicians named Steven or Joe.

Similarity of the marks

This one is fairly self-explanatory, but the court will look at the degree of similarity between the two names. Aspects like whether the names sound or are spelled similarly, as well as whether the names might look the same or have similar meanings, are all considered.

Similarity of the products or services

This factor will look at what’s being offered by the mark owner. In the case of music, both bands would be offering music. To look more specifically, both bands could be offering rock music, or alternatively one might play death metal and one children’s music. If only one party is a band, maybe that party plays rock music while the other party offers clothing or high-end power tools. A court will look at how both names or brands are being marketed and whether they are to the same audience.

Proximity of the goods and services

This factor looks at the physical proximity (location) in which the two goods or services are sold. Using the example above, let’s say the two marks in dispute are the maker of power tools and a band. Power tools will be sold at a hardware store, whereas CDs will be sold at a music store, making their physical proximity farther apart and confusion less likely. However, two bands with similar names would both be sold in music stores, making confusion between the two marks more likely.

Likelihood the senior user will also offer the same type of products as the junior user

Again, let’s stick with the same example. If a band comes along with a similar name to a power tool company, less confusion would be evident if the band sticks to only making music and not offering power tools as part of their merchandise items. However, if the senior user is a clothing brand, it’s probably very likely the band will want to sell T-shirts or other apparel at their concerts and on their website, making the likelihood of confusion between the two marks stronger.

Evidence of actual confusion

People confusing one band’s album for another or buying tickets to one band’s concert thinking they were going to see the other band would be examples of actual confusion. Evidence of someone actually confusing the two marks isn’t required, but it may be compelling to show that there is actual confusion.

The junior user’s intent in adopting the mark

Did the junior user adopt his or her mark with good intentions because he or she really felt it was the right name for the band, or did he or she do it purposely to try and ride the coattails of the other band’s fame or to purposely confuse consumers? Trying to profit off of another band or brand’s established mark will not work in the junior user’s favor.

Sophistication of the buyers/degree of care likely to be exercised by the consumer

This looks at how much care a consumer will take before making the decision to purchase the goods or services. For example, someone buying a $2 million airplane would probably put a lot more care into his decision than someone buying a bag of potato chips. A court will look at how much care fans will take in selecting purchases from a band.

 

These are some of the basic principles to consider so your band name doesn’t conflict with another band or brand name, or if you feel that someone may be infringing on your trademark. All trademark registrations should be handled by an experienced attorney or a service like Indie Artist Resource. All potential or actual trademark infringement suits should be handled by an experienced litigator.

This article was previously published on Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

 

1 2 5 6 7 8 9 10 11 12 13 15 16