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Categotry Archives: Music Industry

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Do You Need a Music Publisher?

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Categories: Articles, Business, Music Industry, Music Publishing, Tags: , , , , , , , , , ,

Some musicians have music publishing deals, some musicians have their own publishing companies, and some have both. For many independent musicians, owning their own publishing companies often means nothing more than just having name for publishing matters rather than a fully functioning entity. Musicians often ask me the difference between handling their publishing themselves and what a music publisher will do for them.

1. Manage your catalog

A publisher will handle all copyright registrations, filings with performing rights organizations and mechanical rights collection societies, and other more procedural aspects of owning intellectual property. A publisher will also receive any license requests to use your music and handle the contracts associated with these uses, negotiating the best price they can, which makes sense because they get to take a cut of the proceeds. A publisher will also fight against any unwarranted uses of your music, including suing for infringement if necessary. Again, this is because the publisher usually has a stake in the copyright ownership and income generated from your compositions. A publisher will also have relationships with foreign companies and can enter into agreements so that your music can be promoted and administered in those countries, thus creating more opportunities for you and expanding your fanbase.

2. Promote your catalog

A good publisher that believes in you and stands to profit from your music will find ways to promote it and help you (and them) make more money. This will usually include pitching your music for use in TV and film, pitching your music to other artists in order to get those artists to record your compositions, arranging for sheet music or other reprints of your music for sale, and any other opportunities to promote your compositions and get them recorded.

3. Pair you with co-writers

Some writers mostly write alone, some only write with others, and some may write alone and with others. Sometimes, writing with other people can help a songwriter break into a new genre or get new creative juices flowing when the two writers can vibe on each other’s energy. A publisher will help to facilitate these relationships, as the more great songs its writer writes, the more everyone stands to benefit. Also, if you are a promising writer who has a deal but are still building your resume, your publisher may be able to pair you up with more seasoned writers to help advance your career.

4. Collect income

From a logistical standpoint, this is one of the most important functions of the publisher because an experienced publisher understands all the different revenue streams in the business, how to collect these revenues, and how and what you should be paid. A publisher can also pursue monies you should be receiving but haven’t, and audit your label or other companies with which you’ve collaborated to make sure you are getting paid correctly. In addition, if you are to pay any co-writers or other collaborators, your publisher can take care of this for you so that you don’t have to worry about understanding the complexities of the royalty streams and who gets paid what, as well as dealing with the minutiae of the task, leaving you more time to focus on creating great music.

 

In my opinion, the functions of the publisher can be grouped into two very important areas: promoting your music and taking care of the business end (registrations, contracts, and royalty collection and payment). Both of these aspects are helpful to you and allow you to focus your time on creating music instead of promoting or bookkeeping. A publisher’s relationships and connections can be key to moving your career forward, and any reputable publisher will have administrative systems already established so that the business side runs smoothly. However,most music publishing deals require you to give up all or a portion of your copyright ownership, and all publishing deals will require a percentage of your publishing income as payment for their services. For independent songwriters without a publishing deal or who want to retain full ownership of their compositions, the next best option is to hire a great music lawyer to handle the business part of the equation, but the promotional aspects will still be up to the songwriter. Only you can decide whether these trade-offs are right for your career, or if retaining full ownership and spending more of your time on business work makes you more comfortable.

 

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. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-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 act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

 

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How to Get Legal Help if You Can’t Afford a Music Attorney

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Categories: Business, Law, Legal Issues, Music Industry, Tags: , , , , , , , , , , , , , ,

Hopefully you’ve read my most recent article where I explained how to choose the right attorney for you. Even though you now know what qualities to look for in an attorney, you may still wonder whether hiring one is possible if you are on a tight budget. As I discussed last time, don’t try to handle the matter yourself, and having a non-music or non-entertainment lawyer handle your matter is less than ideal because only a lawyer experienced in music and entertainment will know the specific nuances that pertain to your situation. While the best solution is still to hire an experienced music attorney to handle your situation, here are three less costly options for independent musicians to get their legal needs met.

1. Ask the lawyer you want to work with if there’s any flexibility on payment policies

After finding out the lawyer’s customary rate, you can ask if he or she can do the work on a flat-fee basis, has discounted rates for independent musicians, or has a payment plan where you can pay the fee in installments.

You can also ask if the attorney would be willing to work on a percentage basis, but know that many attorneys will only work on percentage for high net worth clients. Don’t expect the attorney to work for free or try to sell him or her on the premise that the attorney will somehow make a lot of money once you’re famous. The music industry is a speculative business, and a new client without a proven track record will often not produce a return on a lawyer’s investment of time and skill.

If your matter involves a lawsuit (most often for copyright infringement or breach of contract), you can ask the attorney if he or she works on a “contingency,” meaning that the attorney doesn’t get paid unless he or she wins your case. There are some lawyers who still work on contingency, but most don’t. Keep in mind that even if an attorney does work on contingency, you will most likely still have to pay court filing costs, which can be expensive on their own.

2. Use a reputable online legal resource

Usually, I advise non-lawyers to proceed with extreme caution when downloading or using templates from the internet because these templates are often poor quality and usually not designed for independent musicians. Plus, drafting changes to template agreements without proper legal training can often lead to unforeseen consequences that could be detrimental to your income, copyright ownership, and career.

Here is the exception: in my dealings with many independent musicians, I saw that many musicians needed but didn’t have access to resources to meet their legal needs due to cost or other prohibitions preventing them from hiring an attorney. Therefore, I started Indie Artist Resource (currently only available for California residents) to offer template contracts, intellectual property registration services, and legal consultations all specifically designed to address the unique needs of independent musicians.

Despite the varying quality of most online templates, I’m confident in recommending the templates and services from Indie Artist Resource, as I have personally developed all of the templates with the needs of independent musicians in mind, and I oversee all operations of the business, including handling the consultations. While the nature of template agreements means that a template isn’t tailored to each individual user’s specific needs, some protection is better than no protection – and I’d rather see a musician using a well-drafted template than proceeding without any agreement in place.

3. Contact a legal clinic for the arts

There are some nonprofit organizations that offer free or low-cost legal services to musicians. You can research online whether your state has such an organization and contact the organization to see if what they offer meets your legal needs. Some of the lawyers at these organizations are very competent attorneys who service high-level clients and enjoy volunteering their time to help independent musicians. Of course, others are newly licensed and may or may not be reputable. I cannot comment on the caliber of service you will be getting because it depends on which state you are in, the quality of the organization, and the attorney handling your case. However, if you want to work with someone on an ongoing basis throughout your matter and you can’t afford regular attorney’s fees, then this might be a good option for you to investigate.

 

Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. Her clients range from Grammy and Emmy Award winners to independent artists, record labels, music publishers, and production companies. Ms. Jacobson also owns and oversees all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection offering template contracts, consultations, and other services designed to meet the unique needs of independent musicians.

This post first appeared 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. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-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 act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

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How Much Do Artists Really Earn Online?

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Categories: Business, Music Industry, Tags: , , , , , , , , , , ,

Ever wonder how much artists really earn from those millions of streams on Spotify?  Ever wonder how much you as an independent artist need to sell or stream in order to make a living off of your music?  Wonder no more:

IIB_Musicians_2015_final

This lovely graphic and data is from Information is Beautiful.  For more information on the numbers, visit the findings.

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How to Choose a Music Attorney Who’s Perfect for You

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Categories: Articles, Business, Law, Legal Disputes, Legal Issues, Music Industry, Tags: , , , , , , , , , , ,

 

Before choosing an attorney, you first want to determine whether you actually need a lawyer. The basic rule of thumb is that if you’re presented with a contract, or alternatively, if you feel your contractual or intellectual property rights have been violated, you need a lawyer. Once you’ve determined which services you would like that lawyer to provide, you’ll want to consider several factors to determine whether a particular lawyer is the right fit for your career, especially if this is your first time working with a lawyer.

Your attorney is your representative, and thus, an extension of you for business purposes. You want to choose someone you enjoy working with, is qualified for the services you need, has a rate you can afford, and who will reflect the right image to achieve your goals. Here are eight of the most important considerations when choosing an attorney.

1. Practice area

Is your lawyer a music lawyer, or is it your brother’s friend’s cousin who’s a real estate/personal injury/construction attorney and is willing to look over the contract for free? While this cousin’s generosity is appreciated, you need to say, “Thanks, but no thanks,” and hire an attorney experienced with music contracts. The entertainment industry has very specific contract terminology and industry practices that only pertain to the entertainment industry. This field is so nuanced that even music contracts and film contracts differ enough that some artists have different attorneys for their music and film deals. An attorney who does not focus on music and entertainment contracts will not be familiar with these industry-specific terms and will miss crucial points that separate a good deal from a bad one. This could cost you to lose copyright ownership and/or a lot of money in royalties in addition to other undesirable consequences.

2. Your needs as an artist

Different types of lawyers perform different services. Some lawyers are “transactional” lawyers that draft, review, and negotiate contracts, as well as advise you on career decisions. Having a lawyer handle your contracts is important because even though some contracts may seem fairly simple, contract language is actually very complex and can contain consequences unforeseen to the untrained reader (or drafter). Lawyers endure many stressful years of schooling and training to interpret this language and understand how it affects you. In practice, you may need an attorney to review or draft only one contract for you or you may need him or her to be an ongoing member of your team for all career developments and opportunities, as well as to work with your manager or agent if you have one. Many artist lawyers can also help you set up any business entities you decide to form.

Other lawyers are “litigators,” which means they handle lawsuits by either suing others on your behalf and arguing your case or by defending you from someone suing you. This is the type of lawyer you would hire when someone has violated your contractual or intellectual property rights. A lawyer who understands these types of lawsuits can assess whether you have a valid claim, if you have the proper proof needed to win your case, and represent you through a settlement and/or trial. Note that the ability to bring lawsuits is often regulated by a “statute of limitations,” meaning you’ll often only have a certain amount of time to file the suit. This amount of time varies depending on the type of lawsuit and sometimes by state, so it’s best to consult with a lawyer promptly.

Still yet, there are other attorneys who “shop” artists, which means that they submit your music to record labels and sometimes other music companies to try to get you a deal. Note that many attorneys do not shop, so it is wise to check the attorney’s website or ask the attorney for his or her shopping policy before requesting that the attorney shop you. Be careful here: some “shopping” attorneys will send out anyone’s music for a fee. Music companies know who these attorneys are often don’t take them or their submissions seriously because the company executives know these submissions are not based on the attorney’s genuine endorsement of the music.

3. Personality

Aside from skill, personality is the other most important aspect in choosing the right lawyer for you. You want to make sure:

  • You actually like this person
  • He or she communicates with you in a way you understand
  • He or she understands and keeps your career goals in mind
  • You feel that you can trust him or her
  • You feel he or she has your best interests at heart
  • You feel comfortable letting him or her handle your important business matters

4. Reputation

Just like you hopefully maintain a good reputation in the industry, you want your attorney to have one as well. You can do an online search for an attorney you’re considering to see if his or her website is appealing and professional. You can also find out if he or she has any articles published or does speaking engagements to get a feel for his or her expertise.

More importantly, you want to know whether your potential attorney is honest. You can’t always find this out upfront, but you can ask around to your colleagues to see if anyone has worked with that person and what their experience has been. Also, you can search the attorney’s name on the State Bar website for the state in which the attorney is licensed to see if any disciplinary action has been taken against him or her. Further, an online search may also yield some information in the form of articles or news stories if the attorney has been involved in any unsavory activities.

5. Negotiation style

When you envision your attorney, what do you see? There are many different negotiation and business styles and it’s important to consider which style fits your preferred attorney profile and your business image as an artist.

Some styles include:

  • Screamers: These attorneys scream at everyone to get the job done and intimidate people to get their way. Some are effective, and some are just plain annoying, actually hindering the progress of deals due to their unpleasantness.
  • Bulldogs: Similar to the Screamers, Bulldogs are tough, fierce, and stubborn. They may not scream, but they can be just as difficult.
  • Partiers: These are the ones you see partying on the tour bus with the band. Many music attorneys are actually frustrated musicians, so the Partiers fulfill their unmet dreams of fame by living vicariously through their clients. Partiers may still be great attorneys during the day, but it’s a personal preference whether you want your attorney partying alongside you after the show.
  • Friends: Many attorneys become friends with their clients. This may include hanging together outside of work, but it just may extend to asking, “How’s the family?” when on a business call. It can be up to you how much you want to discuss your personal life outside of work, but it can make for a more enjoyable business experience.
  • Paper-pushers: These are the ones who stay in the office pining over comma placement. If you’re not looking to socialize and just want someone to stick to drafting, this might be your pick.
  • Combination: Realistically, most attorneys are a combination of some of the above. Some attorneys might be nice until they have a reason to scream. Some may spend most of the time at the office but accept your invitation to the afterparty at next week’s show.

Again, it really is about how well you work with the person and what you want in your relationship with him or her. However, style is an important point because having an attorney with the wrong style may end up breaking deals instead of making them on your behalf.

6. Similar clients

You might consider an attorney who already has clients in a similar style and genre to your music.This isn’t essential, but it is a good starting point for an artist who does not currently know any attorneys and wants to do some research on who to further pursue. In addition, an attorney with similar clients may also have already established connections and relationships with other artists or companies you’d like to work with, which can work to your advantage.

7. Price

Attorneys have different billing rates that are usually based on their experience and number of years in practice. Some attorneys only bill hourly and/or require retainers (upfront payments of estimated fees), while some will also charge a flat fee or take a percentage of your income or a deal. Ask the attorney for his or her rates and fee structure. Take serious consideration of what the attorney quotes you and whether you can afford it. Attorney services can be expensive, but it’s important that you pay your attorney for his or her work as he or she has invested time and skill in completing tasks on your behalf, even if that task is answering questions over the telephone. Legal advice is not free; your attorney is providing you a service based on many years of training, knowledge, and experience.

8. Location

Attorneys are licensed by state, so you want to be cognizant of whether the attorney is licensed in your home state, as licensing restrictions may prevent an out-of-state attorney from completing tasks on your behalf or may require the involvement of another attorney licensed in your state, which can mean added fees for you.

While a lot of correspondence with your attorney can often be done over telephone and email, you may also want to make sure the attorney’s office is in a convenient location if you have to travel to his or her office.

Now that you’re aware of what to look for in an attorney, you might wonder where to find one. Next time, I will discuss how to find potential attorneys as well as options for musicians who need legal services but are not quite ready to add an attorney to their teams.

This post first appeared 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. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-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 act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. Her clients range from Grammy and Emmy Award winners to independent artists, record labels, music publishers, and production companies. Ms. Jacobson also owns and oversees all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection offering template contracts, consultations, and other services designed to meet the unique needs of independent musicians.

 

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Warner Music Group Submits Class Action Settlement For Digital Royalties Suit

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Categories: Legal Disputes, Legal Issues, Music Industry, Record Labels, Royalties, Tags: , , , ,

“The Warner Music Group has submitted a settlement to the class action lawsuit filed by artists who claimed they were entitled to be paid on a licensing bases instead of a royalty bases for download and mastertones.” Read the full article at Billboard.

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Interview with Michael Eames of PEN Music Group

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Categories: Business, Music, Music Industry, Music Industry Interviews, Music Publishing, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

I’m happy that the first post of 2014 is an interview with Michael Eames, President of PEN Music Group.

Michael Eames, President of PEN Music Group

Michael Eames, President of PEN Music Group

Founded in 1994, PEN is a full-service independent music publishing company with a worldwide presence who is celebrating its 20th Anniversary in 2014.  PEN offers efficiency and personal attention as a boutique company.  With PEN’s A-list music contacts in film, TV and advertising, and a success rate that continues to grow (with 100+ placements each year), it is an effective alternative to the large multinational publishing companies.  PEN has formed strategic partnerships with several record labels to leverage collective strengths and has joint ventures with other respected companies.  PEN’s songs have also been recorded by artists including The Black Eyed Peas, Celine Dion, the cast of GLEE, Selena Gomez, Miley Cyrus, kd lang, Santana, Christina Aguilera, Corinne Bailey Rae, Faith Hill, Paulina Rubio, Macy Gray, Kenny Rogers and Luther Vandross, among countless others.

 

1.  Describe a typical day at the office.

I am not sure there is a truly “typical” day which is why I like being a publisher.  But generally for me the office day starts at 8:00 am after I drop my son off at middle school.  Then the day for me will typically involve all of the following in no particular order:
– responding to emails from Europe or overseas that came in overnight
– seeking approvals from clients for requests for use of their music that we receive
– tackling some sort of software programming with our state-of-the-art copyright and royalty system called CORE so that I can continue to try to make our administrative processes as efficient as possible
– pitching our music to any needs or searches that we get (and we can sometimes get as many as 5 a day)
– seeking out new clients and business opportunities via either online research or reaching out to lawyers and business managers about their clients that may be looking for deals
– responding to inquiries from existing clients who have questions or needs
– meeting either individually or as a group with our staff so that we can keep focused on all the items that need to be done, both on the administrative side and the creative side.

 

2.  What is your favorite part of your job?

 

Even though we have been placing music in film/TV/ads for our entire 20 year existence (since 1994), nothing beats the email that we receive when someone says they want to license something and need a quote, etc.  You then feel all the effort is worthwhile and you can’t wait to let the client know that a use may happen.  And since things sometimes fall out in the mix, the ultimate satisfaction is tuning into TV and hearing our music and or in a film in a theater, etc.  There’s a sense of pride in knowing that that use would not have happened without our efforts and it’s a great feeling.

 

3.  What are some projects that you are currently working on that you can discuss?  

 

Since 2014 is PEN Music Group’s 20th anniversary, a lot of the projects these days are internal projects that we are doing to acknowledge and capitalize on the anniversary.  For example, in late January 2014 we are going to launch Phase 1 of our new website that we have been working on for a year.  There will be a few phases after this initial rollout, but we’re looking forward to getting this out there.  We are also always planning and refining our CORE software that handles all our copyright and royalties so that we can handle as much volume as possible with as little human interaction as possible.  This Spring we are also launching our web-based pitching system which completely integrates with CORE.  This will enable us to only have to enter certain data on a song once and then all that data gets pushed out to our pitching system so that as long as we have access to a browser on a laptop or mobile device, we will be able to search our catalogue of music and create pitches that we can send to music users who are in need of music for their projects and then we can track who streams what, who downloaded what, and generally see how the outside world is interacting with the music that we assemble and pitch.

 

4.  What do you think are the most important issues facing songwriters and publishers at this time?
I think the overall topic that we must address is the constant fight to devalue music.  And that fight is both with external forces as well as internal ones.  Let me explain.  First, it is clear we are moving towards a streaming-based world.  And fast.  Right now the streaming rates are crap, especially given that there seems to be more and more evidence that streaming is displacing sales that have historically given us our mechanical royalties.  We must work together as content owners as well as with the digital services to structure rates that are fair and that allow digital services to flourish.  I fear it is going to get a bit worse before it gets better, but I think ultimately this is going to be a lucrative world but it’s one in which music must be properly compensated for.  On the internal side, especially in the world of synchronization, there is a constant erosion of fees.  And this is partly due to some artists and publishers continuing to allow their music to be used for lesser and lesser fees for the increased broad media rights that producers need these days.  This is a tough one – because if you say no, there are probably 10 other companies right behind you who will allow their music to be used and you want the use to happen as opposed to not happen.  But sometimes you just have to take a stand and explain how your music is worth more than what is being offered and you can’t allow it to be used except for a fair price.  Every time you allow your music to be used for free or practically free, another content producer goes off thinking for their next project that they don’t need a big music budget because they can always get music for free or next to free.  This is a losing battle and if we are to maintain (or maybe even increase!) the value of music, we must think carefully now about what our individual and collective actions are doing to the perception of music’s value.

 

5.  Everyone is now on the “placement” train, where they think the only viable way to make money is to get placements in TV and film.  Do you agree with this?  

 

Generally speaking I do agree with this.  But I think it depends on what kind of artist and songwriter you are.  Albums aren’t selling what they used to so everyone is looking at synch to make up the difference (see previous answer directly above).  And the synch world can still be a lucrative area, especially in ads and trailers where the fees are still higher generally than uses in TV and film projects.  TV uses are also in many ways the only “radio” that many artists receive these days given the corporate dominance in mainstream radio programming.  A successful TV show using your music can mean 10 million+ people hearing your song in one night.  That kind of exposure can’t be beat, especially if it’s a placement where you can actually hear the song as opposed to it just being background in a bar for example under dialogue where no one will hear it.  But successful touring artists can still make a lot of money off their music and never get a placement.  I talk to the indie artists about the concept of the “superfan” – strive to find, develop and maintain a direct artist-fan relationship with 1,000 people who love what you do so much that through the year they will spend $100 on you (whether that be in CD sales or digital downloads, tickets to a show, merchandise, etc.).  If you can do that, that’s $100,000 a year and you are successful at music and you’ve been able to do that with just 1,000 people and no placements.  It can be done.  And then there are some artists that are just synch-focused and they work hard and make a good living.  It can be done a number of different ways, but either way it takes commitment and a dedicated work ethic.

 

6.  What other avenues are still profitable for publishers and writers?

 

Other than the placement world, I think everyone is looking to YouTube to be a new frontier of sorts in generating income.  And you can generate a lot of income on YouTube but it takes a LOT of views to have a decent financial impact.  We are in a visual world now – any artist who wants a fighting chance should plan on making videos of their songs – whether they are gimmicky videos that go viral or not.  It’s all about getting the exposure.  But once you can get it (however you do it and it can be done outside of the major label paradigm), it’s how you use it and manage it that will determine your financial success.  As mentioned before, successful touring artists sell records still and that generates mechanical income.  It all feeds upon itself – the trick is figuring out where an artist or songwriter will first connect and then you take that and run with it.

 

7.  What types of deals are mostly being offered now among the independent publishers?

 

I think generally speaking the deals fall into 1 of 3 types: 1) the placement/licensing deal; 2) the admin deal; and 3) the co-publishing deal.  Regarding the placement/licensing deal, as the name implies this deal’s main focus is synch.  The publisher generally doesn’t get involved in any aspect of the writer/artist other than synch.  This can be a way for a publisher and artist to develop an initial working relationship to scope each other out.  But one word of caution to the artist is non-exclusive deals that get offered that involve re-titling the songs.  This is increasingly being frowned upon for a variety of reasons, so consider deals of this nature that are offered very carefully.  Then there’s the admin deal.  In this scenario, the writer/artist owns everything 100% still and the publisher takes on the administrative and hopefully creative responsibility to make things happen for the artist.  The more things that happen, the more income is earned for both parties.  Then lastly there’s the co-pub deal.  In these deals the publisher and the writer/artist split the publishing 50/50 and this deal generally involves some sort of upfront financial payment or investment in the writer/artist.  This is the highest level of commitment and as long as you feel you have the right partner who believes in what you are doing, this deal structure can work out well.  It all depends on what you as the writer/artist feels comfortable with.  Meet lots of publishers and go with who you feel “gets you” and who is offering what you feel is a fair deal.

 

8.  What is an independent publishing company looking for when considering signing a new artist?

 

Speaking for us as PEN Music Group, we are looking for great music in genres that we don’t have much of.  We don’t like to take on too many artists of the same genre where they will be cannibalizing each other in the opportunities we bring to them.  But it has to be music that we all connect and react to.  This is sometimes hard to put into words – it’s just a gut feeling.  But you know it’s good when you hear it.  Then we want to spend the time getting others to hear the music since we feel they will like it.  We are also looking for writer/artists who know how much hard work is involved in this career and don’t expect that if we take them on we will do all the work for them.  No one will ever work as hard for what they do as they should.  And if we see someone who is smart and organized and business savvy on top of being creatively unique, then we know we have something.

 

9.  Is there any criteria an artist/writer needs to have to even be considered for a deal?

 

Existing income and activity is always nice, but in the end it comes down to the music.  It has to be great music.  If we don’t react to it, then we won’t fight for it.  It’s all about commitment.  If they have committed to doing the best music possible and that shows, then we will want to get involved whether there is any existing income or not.  Because at that point we believe we can generate the income.

 

Thanks to Michael for this very informative interview.   Learn more about PEN Music Group here.

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“Blurred Lines” — It’s the Hottest Case in This Place

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Categories: Articles, Copyright, Legal Disputes, Music, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , , , , , ,

Summary of the Legal Saga

“Blurred Lines” by Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. was released in March of 2013.  It quickly caught attention for it’s catchy hook; fun, danceable beat; and seeming similarity to Marvin Gaye’s “Got to Give It Up.”  (For ease of reading, I have referred to the writers of “Blurred Lines” as “Thicke,” but please note that all writers of “Blurred Lines” are included in the lawsuits discussed.  Instances involving Robin Thicke individually will be referenced as “Robin Thicke.”)

In May of 2013, Robin Thicke gave an interview to GQ magazine where he talked about how “Blurred Lines” came about, stating:

 “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it . . . . Him and I would go back and forth where I’d sing a line and he’d be like, ‘Hey, hey, hey!’ We started acting like we were two old men on a porch hollering at girls like, ‘Hey, where you going, girl? Come over here!’”[1]

On July 9, 2013, Robin Thicke told Billboard:

“Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up,’ that kind of feel ’cause it’s one of my favorite songs of all time.”[2]

At the beginning of August 2013, the song “Blurred Lines” and the album of the same name both reached No. 1 on the charts.  However, the success was not without turmoil.  There was a lot of controversy floating around that Marvin Gaye’s estate (managed by Gaye’s children) felt the song “Blurred Lines” infringed the copyright of “Got to Give It Up” and there was also talk of infringement of Funkadelic’s “Sexy Ways.”[3]  News reports stated that Thicke had offered the Gaye Estate a “six-figure settlement” to quash the case, but the family turned it down.[4]  In mid-August, attorneys for Thicke filed a lawsuit to win a declaration that “Blurred Lines” did not infringe on the copyright of “Got to Give It Up” and “Sexy Ways.”[5] Thicke took the approach that “Blurred Lines” evoked the same “sound”[6] as “Got to Give It Up,” but that it did not infringe any copyrights of Gaye’s composition.  Thicke accused the Gaye Estate of trying to claim ownership of an entire genre, as opposed to a specific work.[7]

“Sexy Ways” writer and Funkadelic leader George Clinton is on Thicke’s side.  He tweeted “No sample of #Funkadelic‘s ‘Sexy Ways’ in @robinthicke‘s ‘Blurred Lines’ … We support @robinthicke @Pharrell!”[8]

In further support of Thicke, George Clinton announced on Twitter that he was taking his position to TMZ.[9]   On TMZ, Clinton said he wishes he wrote “Blurred Lines,”[10] and admitted that in comparing Thicke’s composition to “Sexy Ways” he did “hear a similar tone of voice, style, and a few notes, but not enough to sue.”  Clinton also made it clear that it was his publisher, Bridgeport Music, who was suing on behalf of Clinton and that Clinton himself did not support the suit.[11]  When asked about the similarity between “Blurred Lines” and “Got to Give It Up,” Clinton saw where people would make the correlation, but said he would testify in defense of Thicke.[12]  Since then, mentions of any infringement of “Sexy Ways” have quieted.

In October 2013, the Gaye Estate (minus Marvin Gaye III)[13] responded aggressively to Thicke’s lawsuit.  The Estate not only maintains its claim that “Blurred Lines” infringes on the copyright of “Got to Give It Up,” but also has filed another claim asserting that Robin Thicke’s song “Love After War” infringes on Gaye’s song “After the Dance.”[14]  The Gaye Estate also argues that Robin Thicke’s song “Make U Love Me” is similar in theme to Gaye’s song “I Want You,”[15] although the Estate did not add this supposed infringement to the list of formal claims in the lawsuit.  The Gaye Estate even said that Robin Thicke has a “Marvin Gaye fixation.”[16]

In addition to going after Thicke, the Gaye Estate is also dragging EMI April (now owned by Sony/ATV) into the dispute.[17]  EMI is the music publisher for “Blurred Lines” and also the music publishing administrator for Marvin Gaye’s catalogue.[18]  The Gaye Estate accuses EMI of having a conflict of interest since it represents both songs, and chastises EMI for failing to bring a suit to protect “Got to Give It Up” and for trying to intimidate the Gaye Estate from bringing a suit themselves.[19]  This puts EMI in a very difficult position as one wonders how the company could assert complete loyalty to both songs, from which it stands to make a profit.  EMI understandably doesn’t want to rock the boat, but after this messy fight it may lose one or both clients as well as one or both songs – plus the related profits.

The Gaye family now also claims there was never a six-figure settlement offered to them and that was a false story planted in the press to make the Gaye family seem unreasonable.[20]

Thicke’s lawyer, Howard King, released a statement to The Hollywood Reporter saying the Gaye Estate actually has no standing to sue on this matter and that three musicologists have reported that while the songs sound similar, their notes are different.[21]  However, Judith Finell, another well-known musicologist issued a report stating: “The two songs’ substantial similarities surpass the realm of generic coincidence reaching to the very essence of each work,” and offers a preliminary conclusion that “‘Blurred [Lines]’ was not created independently of ‘[Got to] Give It Up.’”[22]

On November 26, 2013, Marvin Gaye III filed his own lawsuit for infringement of “Got to Give It Up” by “Blurred Lines’” and infringement of “After the Dance” by “Love After War.”[23]  Unlike his siblings, he did not include a claim against EMI.  He did also mention the “Make U Love Me” / “I Want You” similarity, as well as the undeniable relationship between Robin Thicke’s song “Million Dolla Baby” and Gaye’s “Trouble Man.”[24]

Analysis

Robin Thicke’s interviews with GQ and Billboard are not going to bode well for his position in this case.  Anytime one says that a certain work inspired his newly created work it is going to fuel the fire of the other side’s infringement argument.

Thicke’s primary filing was a surprising move, as usually the party accusing infringement files first.  In this case, the writers sought to declare their innocence before the other parties filed against them.  It’s an interesting approach and I applaud Thicke’s attorneys for their proactive nature.  However, that first filing probably came across to many, or at least to Gaye’s children, as an aggressive move that elevated the level of the dispute.  It may also look suspicious to some observers when a supposedly innocent party has to loudly announce his innocence despite the law providing for a person’s innocence until proven guilty.

The Gaye family retaliated hard and seems to want to show everyone that they are taking this seriously and won’t go down without a fight.  Some people have asked me whether this will still settle out of court.  The truth is that it might – one never knows the direction a dispute like this will take.  However, I think for that to happen the monetary figure would have to be substantially large and might also involve the Gaye Estate gaining all or a portion of the “Blurred Lines” copyright.  Aside from that, I think the Gaye family’s stance portrays an image that they are more than willing to go to trial if necessary and will battle this issue until the end.

As stated above, at least three of the musicology reports are supposedly in Thicke’s favor, but have not been released.  Conversely, Finell’s report is not in Thicke’s favor.  In lay terms, Finell’s preliminary conclusion means “Blurred Lines” does infringe on “Got to Give It Up.”  (Note:  This is my interpretation of Finell’s report and based upon the contents of the report alone.  While I do know Ms. Finell, we did not discuss the details of the case or her report.)

Under copyright law, two similar works can be created independently of each other without infringement.  For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music.  After all, there are only so many notes and chords that can be played.  However, in an infringement suit, here are some elements a court would examine:

1.  Copying

 One would have to show that the accused infringer directly copied the prior work.  This can be difficult to prove and is a point of contention in this case since Thicke claims they were only trying to evoke a sound[25] and did not expressly copy Gaye’s song.  However, Robin Thicke’s interviews with GQ and Billboard don’t help their case since Robin Thicke specifically said that “Got to Give It Up” was his favorite song[26] and he wanted to create “something like that.”[27]

2.  Access:

Even if direct copying cannot be proven, courts will assume that copying did occur if it is shown that the accused infringer had access to the supposedly infringed composition.  This could actually be a slam dunk point for the Gaye family since Robin Thicke admitted it is his favorite song in the GQ and Billboard interviews.

However, even if Robin Thicke did not admit his love for “Got to Give It Up,” the song’s fame and prominence in pop culture would satisfy this element.  The song has been played on the radio and is widely known, so the court will make the assumption that Thicke has heard it simply because it is a famous song.

Here’s another real world example:  In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[28] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[29]  The court didn’t require actual proof that Harrison had heard  “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[30] – coincidentally at the same time The Beatles were becoming famous.[31]  The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[32]  The court went on to further conclude that it did not believe Harrison deliberately copied the song,[33] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[34]  For those of us well versed in Beatles trivia, it is also known that the lads were fans of the early-60s girl groups and Phil Spector’s production style, later hiring Spector to produce the album “Let It Be.”  In an ironic and amusing turn of events, Harrison eventually purchased the copyright to “He’s So Fine,” making him the owner of both compositions.

3.  Substantial Similarity:

Another factor to look at is whether a lay person (i.e. a regular music listener) would view the two songs as similar.  Again, Finell’s report shows that the two compositions are very similar to each other, and much internet buzz has shown that most listeners are immediately able to pick up on the similarity (provided they are familiar with Gaye’s song).

To further complicate matters, it seems Robin Thicke has a pattern of releasing songs that sound like songs by Marvin Gaye.  A simple online search yields several websites showing the undeniable similarities between “Million Dolla Baby” and “Trouble Man,”[35] as well as the other three mentioned compositions.  However, Robin Thicke had permission from the Gaye Estate for “Million Dolla Baby” and the song credits list Gaye as a writer.[36]  Therefore it is probable the family is receiving royalties for that song and thus would not sue for that composition.[37]  What bothers me as a music appreciator is that I like some of Robin Thicke’s music.  With this pattern cropping up of multiple songs sounding like Gaye, I think it makes him lose credibility as an artist/writer and may end up hurting his career.  There is already talk within the industry that he may not win awards this season because of this legal battle.  It would be sad to see him lose future success because of this emerging pattern.

The first time I heard “Blurred Lines,” I realized the similarity to “Got to Give It Up,” but personally felt that it was evoking a sound more than direct infringement.   What strengthens the “evoking a sound” argument is the number of other songs that also have similar elements to both “Blurred Lines” and “Got to Give it Up.”  “Sexy Ways” was released in 1974.  “Got to Give It Up” was released in 1977.  The Jacksons then released “Shake Your Body (Down to the Ground)” in 1978, which has a similar “woo!” to “Blurred Lines.”  Michael Jackson’s 1979 hit “Don’t Stop ‘Til You Get Enough” has yet another similar “woo!” as well as a similar rhythm and use of cowbell as “Blurred Lines.” Marvin Gaye didn’t sue Michael or any of the other Jacksons for these songs, which made me wonder why Thicke is now a target for “Blurred Lines.”  Also, all of the songs just mentioned (with the exception of “Sexy Ways”) are from 1977-1979.   The 1970s was a distinct era and had a recognizable sound that “Blurred Lines” does evoke.

Some of my colleagues think it would be a travesty if federal judges did not police copyright more strictly and rule against Thicke in this case, fearing that it could allow more cases of actual infringement to slide through the cracks, or worse, be deemed acceptable and set a precedent for others to willfully infringe.  On the other hand, part of the purpose of copyright is to create a benefit or award to creators[38] of “original works of authorship,”[39] but that protection is also limited in duration.  Copyright is not meant to stifle creativity, so I think the challenge in this case is balancing the protection of existing compositions without stifling the creation of new works.

There are a variety of possible outcomes in this case and I will continue to provide my analysis as more details emerge.



[1] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[2] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[3] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[4] Alex Pham, “Blurred Lines” Legal Battle:  Marvin Gaye’s Family Rejected Robin Thicke’s Six-Figure Offer, THE HOLLYWOOD REPORTER, ESQ., August 23, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-legal-battle-marvin-613551.

[5] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[6] Id.

[7] Id.

[8] Posting of George Clinton to Twitter, https://twitter.com/george_clinton (August 15, 2013); Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[9] Posting of George Clinton to Twitter, https://twitter.com/george_clinton/status/369826118456467456 (August 15, 2013).

[10] Interview by Harvey Levin with George Clinton, on TMZ, (August 19, 2013), http://www.tmz.com/2013/08/19/tmz-live-lindsay-oprah-winfrey-lohan-thomas-gibson-lebron-james-robin-thicke-george-clinton-robert-pattinson-katie-couric-kim-kardashian-jennifer-lopez-the-calling/

[11] Id.

[12] Id.

[13] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[14] Eriq Gardner, Blurred Lines” Lawsuit:  Marvin Gaye Family Now Claims Robin Thicke Stole Two Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., October 30, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-lawsuit-marvin-gaye-651427

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Report from Judith Finell, Judith Finell Music Services, Inc., Preliminary Report:  Comparison of “Got to Give It Up” and “Blurred Lines” (October 17, 2013) http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

[23] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[24] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382; Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[25] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[26] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[27] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[28] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).

[29] Id.

[30] Id. at 179.

[31] Id.

[32] Id. at 180.

[33] Id. at 181.

[34] Id.

[35] Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[36] Id.

[37] Id.

[38] Craig Joyce et al., Copyright Law 2 (7th ed., LexisNexis)(2006).

[39] Id. at 3.

© 2013 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, please provide a link to www.themusicindustrylawyer.com or a direct link to the post for others to read it.

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Why the CD is Still Important

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Categories: Music Industry, Record Labels, Tags: , , , , ,

Forbes recently reported three main reasons why the CD is still important.

image by Ulf Hinze, Hannover, Germany feel free to use it for anything!1.  Last year, there were at least 211 million CD sales in the US yielding at least $2.5 billion in revenue.  I say “at least” because these numbers were taken from official RIAA data and didn’t include independent musician sales at shows and on websites, including other sales not tracked by SoundScan.  Not too shabby.

2.  There are still people that would rather buy a CD, especially those in country and hard rock markets.

3.  Reviewers (even blog reviewers) still want CD submissions rather than digital.  Plus, now there are services where you can press CDs as needed rather than having to place large orders upfront; a more economical system for independent musicians.

The CD may be old, but it isn’t dead yet.

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5 Music Companies That Will Disappear Within 5 Years

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Categories: Business, Digital Distribution, Music Industry, Record Labels, Tags: , , , , , , , , , , ,

Paul Reskinoff predicts that Pandora, one major label, Spotify, Live Nation, and MySpace will all be just a memory within the next five years.  Why?  According to Reskinoff, Pandora does not have a sustainable business model and its founder Tim Westergren has been liquidating his available shares.  The major label model continues to crumble in the digital age; Spotify and Live Nation have been continually losing money, and MySpace has lost its relevance.  Keep a watch on these companies to see if Reskinoff’s predictions become realities.

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EFF Asks Essential Questions Regarding Digital Copyright Ownership

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Categories: Copyright, Digital Distribution, Legal Issues, Music Industry, Tags: , , , , , , , , , , , ,

A recent panel featuring Electronic Frontier Foundation‘s Julie Samuels, Techdirt‘s Mike Masnick and American University Washington College of Law professor, Michael Carroll posed some very interesting questions regarding future ownership of digital content.  The panel’s topic was prompted by the Megaupload decisions.  The panelists asked who owns digital content and that if you upload content to a website that has terms and conditions to own the content you upload (or changes those terms to own the content after you have already signed up), does that digital content become digital assets able to be seized by a bank in bankruptcy proceedings if the company/website folds?  What happens to and who owns a person’s digital content when he dies?  The panel further explained that they don’t feel copyright law is progressing fast enough to keep up with the speed of technology, although it appears lawmakers are open to change.

I know many folks in this business do not like the EFF because they feel the EFF is usually too radical in it’s approach to copyright, however, I think everyone can agree that the questions posed are ones definitely worth answering.

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