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Erin M. Jacobson published in Billboard

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Categories: Articles, Honors and Awards, Legacy, Music Industry, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

I am proud to announce that my most recent article, Attention Legacy Artists: 6 Things You Need to Know to Recapture Your Copyrights, has been published by Billboard!

 

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Attention Legacy Artists: 6 Things You Need to Know to Recapture Your Copyrights

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Categories: Articles, Business, Copyright, Legacy, Legal Issues, Music, Music Catalogues, Music Contracts, Music Industry, Music Publishing, Royalties, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was first published on Billboard.com.

There has been a lot of buzz recently about songwriters and artists (or their heirs) recapturing copyright ownership of their songs – and youcanbelieve the hype.  Copyright law provides a chance for authors (or heirs of authors) to recapture ownership of the copyrights to works granted away many years ago, and the window allowed by the law to recapture those rights is now.[1] Recapturing rights can allow for an author or author’s heirs to negotiate better deals with higher royalty splits in their favor, sell catalogues for large sums of money, or finally regain control of how a catalogue is exploited and increase profits with the right team in place.

However, recapturing rights is a complicated business filled with many requirements and nuances.  Here are six things authors need to know about recapturing rights.

  1. Dates Matter

An author (or author’s heirs) can terminate grants of copyrights made before January 1, 1978 during a window beginning 56 years and ending 61 years from the original copyright date.[2]  However, notice of termination must be served on the current owner anytime between ten and two years before the date the author intends the rights to revert.[3]  For grants made after January 1, 1978, the calculation of when rights can be recaptured is based on the date of the grant, not the original copyright date.   These post-1978 grants may be terminated beginning at 35 or 40 years after the grant date (depending on the language in the grant)[4]with a five-year termination window. Again, notice of termination must be served on the current owner anytime between ten and two years before the date the author intends the rights to revert.[5]

Being proactive is one of the most important factors when it comes to recapturing rights.  As mentioned above, serving notice on the current owners of the copyrights is required to recapture rights.  Because of the additional requirement that this notice must be sent between ten and two years beforethe date the rights will revert, anyone intending to recapture rights must look at leasttwo years ahead.  If someone intending to recapture rights misses the notice window – rights cannotbe recaptured and the opportunity is forever lost. 

  1. Works for Hire Need Not Apply

If an author signed a work for hire agreement for the works in question, don’t bother.  Copyright Law specifically states that works for hire are not eligible for termination.[6]

  1. U.S. Rights Only

The termination provisions that are the subject of this article are part of United
States Copyright Law and therefore only apply to U.S. rights.  That means one can recapture U.S. rights, but not foreign rights.  Also, as of this writing, the chance to recapture is only applicable to U.S. contracts.[7]

  1. Masters are an Uphill Battle

Most discussions around recapture of copyrights refer to composition copyrights because compositions are generally more straightforward to recapture than master recordings.  Most record company contracts say that masters are works made for hire for the record company, and as explained above, works made for hire are not eligible to be terminated.  However, copyright law dictates that works made for hire must meet certain requirements to qualify as a work made for hire:  (a) it must be made by an employee within the scope of their employment, or (b) it must be specially commissioned by the owner of the work for hire, it must be agreed in writing, and the type of work must fall within one of nine categories designated by the law.[8]  “Master recordings” is not one of those nine categories.

While there have been a few instances where labels have quietly relinquished rights to masters and sworn all parties to secrecy, most record labels refuse to release rights to masters and instead negotiate with the artist to increase their royalty rates.  A higher royalty rate does not help artists whose masters are not being exploited and not earning money, but it is all in an effort for the labels to avoid setting a precedent.   Master recordings are record labels’ main assets and businesses cannot give away their assets without also giving away power and profit.

Unfortunately, this is an issue that will only be decided by litigation and/or copyright reform, and neither of those has happened yet.

  1. Relationships Matter

For pre-1978 grants, one author’s share may be terminated, rather than requiring co-writers to terminate together.  However, if an author’s heirs are the ones effecting termination, then a majority of those heirs must terminate together.

Post-1978 grants signed by more than one author require a majority of those authors to terminate the grant together, and if any one of more of those authors is deceased, then a majority of the heirs of each deceased author must sign instead.   However, there are exceptions to this rule if separate grants were signed.

Requiring multiple parties to sign the termination notices can be problematic if co-writers, or heirs fighting about estate issues, no longer speak.  Even if the parties may have lost touch over the years, it benefits everyone involved to coordinate and cooperate to recapture rights.

  1. Don’t Try This at Home, Kids

If not already apparent by reading this article, assessing eligibility for filing terminations and carrying out the proper procedures to recapture rights is extremely complex.  Furthermore, there are numerous nuances and requirements not discussed here that could also affect whether an author or an author’s heirs may recapture rights. Anyone seeking to recapture copyrights needs an attorney specifically focused on the music industry that also has extensive experience with assessing these issues and recapturing rights.  Not all entertainment attorneys understand music and not all music attorneys are experienced with terminations.

I regularly recapture rights for my clients, as well as advise them on protecting and revitalizing their catalogues, as I am in a unique position where I am deeply familiar with both older music and how to navigate those catalogues within today’s marketplace.  Being in this space also means I frequently see legacy artists and their heirs who have been misguided, who have lost their chance to recapture their rights, who don’t realize their catalogues are under-earning, and who don’t know where to start.   The right advisors are tantamount to a successful recapture process and future for the catalogue.

There is only one chanceto recapture copyrights, one chanceto regain control of one’s legacy, and one chance to get it right.  Choose wisely.

_____________________________________________________________________

[1]Depending on the circumstances of each individual work, as some works are not yet eligible, no longer eligible, or not eligible at all to recapture.

[2]U.S.C. 17 §304(c)(3) (1992).

[3]U.S.C. 17 §304(c)(4)(A) (1998).

[4]Post-1978 grants are terminable at 35 years after the date of the grant, however, if the grant’s language includes the right of publication for the work, then that five-year period begins either on 35 years after the date of publication, or 40 years after the date of the grant, whichever is earlier.

U.S.C. 17 §203(a)(3) (1998).

[5]U.S.C. 17 §203(a)(4)(A).

[6]U.S.C. 17 §304(c) (1992); U.S.C. 17 §203 (1998).

[7]There have been a couple of high profile disputes on this matter involving U.K. contracts (namely Duran Duran in one instance and Sir Paul McCartney in another), but Duran Duran lost in a U.K. lower court and subsequently settled, and McCartney settled without litigation.  Some other countries do have their own provisions for recapture of rights, but they vary by country and differ from U.S. law.

[8]U.S.C. 17 §101 (1992).

 

Disclaimer:  This article does not constitute legal advice.

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Erin M. Jacobson re-elected to AIMP Board of Directors

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Categories: Honors and Awards, Music Industry, Music Publishing, Tags: , , , , , , , , , , , , , , , , , , , ,

I am happy to announce that I have been re-elected to the LA Board of Directors of the Association of Independent Music Publishers (AIMP).

wb-aimp-luncheon-global-industry-110216AIMP is an industry group focusing on independent music publishers and songwriters.  Members (my colleagues in the industry) vote for Board members, so I am honored to have been chosen.  Keep an eye on the AIMP website for future events and to become more involved with this great organization.

 

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Erin M. Jacobson has been named a 2018 Rising Star and one of the Top Women Attorneys in Southern California by Super Lawyers.

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Categories: Honors and Awards, Press, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson has been named a 2018 Rising Star and one of the Top Women Attorneys in Southern California by Super Lawyers.

Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations.

Erin will be featured in Los Angeles Magazine as a Super Lawyers Rising Star, and again later this year as one of the Top Women Attorneys in Southern California.

Erin M. Jacobson, Esq. in Los Angeles Magazine as 2018 Super Lawyers Rising Star

Erin M. Jacobson, Esq.  Los Angeles Magazine  2018 Super Lawyers Rising Star

Erin M. Jacobson, Esq. in Los Angeles Magazine as 2018 Super Lawyers Rising Star

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Erin M. Jacobson Speaking at Taxi Road Rally

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Categories: Music Contracts, Music Industry, Music Libraries, Speaking, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

I will be speaking at the 2017 Taxi Road Rally, November 3-4, 2017!

Here is my schedule:

Friday, November 3, 2017 from 2:45-4:15 pm / La Guardia Room (Mezzanine Level / 2nd Floor)

Don’t Get Screwed! How to Protect Yourself as an Independent Musician with Erin M. Jacobson, Esq.  An explanation of the most common types of ways independent musicians and songwriters get screwed and how to protect yourself before it happens. This class will include real examples from artist’s careers, as well as a discussion on what contracts are necessary to prevent these scenarios, along with an opportunity for Q&A with music attorney Erin Jacobson.

(I will also participate in the mentor lunch on Friday.)

Saturday, November 4, 2017 from 4:30-6:00 pm /  La Guardia Room (Mezzanine Level / 2nd Floor)

Understanding Music Library Agreements with Erin M. Jacobson, Esq.  Music attorney, Erin M. Jacobson will talk about the types of deals offered and explain what contract terminology and certain clauses mean. You may bring printouts of particular clauses that have you stumped and Ms. Jacobson will read them and explain what they mean! This class could save you a world of hurt down the road. It’s a Do-Not-Miss session if you’re pitching to music libraries!

Looking forward to seeing you there!

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This Trial Will Determine Songwriters’ Income Over the Next 5 Years

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Categories: Copyright, Music, Music Industry, Music Publishing, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was originally posted on Forbes.com.

When a song has millions of streams on Spotify and views on YouTube, most people think “Wow, that artist must be making a ton of money!” It’s easy to make that assumption when music superstars are seen on television wearing designer clothing and leaving the hottest nightclubs in town, only to drive away in their Bentley to charter a private plane to their yacht.

What most people don’t realize is that the above is 1) often an image, 2) accessible to only a small number of music creators within the music business, and 3) there are songwriters who wrote those hit songs and the music publishers that represent those songwriters who are earning a mere $10 per 1 million Pandora streams.

Here’s how the structure works. A songwriter writes a composition, which is usually owned or co-owned by a music publisher, a company that handles the management, exploitation and royalty collection for that composition. The music publisher and songwriter split the income from that composition. The main royalties paid for a composition are mechanical royalties for the reproduction of that composition on CDs and via digital means on iTunes and streaming services, and performance royalties paid when a composition is performed in public. Synchronization fees come into play when a composition is used in television or film, but that is a negotiated contract fee separate from a royalty.

While performance royalties have recently been in dispute, this article focuses on mechanical royalties. Mechanical rates are set by the United States government, specifically by a panel of judges called the Copyright Royalty Board (CRB). The CRB determines the royalty rates paid to songwriters and music publishers for every sale of a composition via CD or digital service like iTunes, as well as every time that composition is streamed on services like Spotify, Pandora, etc. The current mechanical rates are 9.1¢ for a sale (split by the music publisher and the songwriter), and streaming mechanicals are fractions of a cent per play.

This month, the CRB has opened hearings to set new mechanical royalty rates, which will be in effect from 2018 through 2022. The CRB will hear testimony from both music creators and music users and will make its decision in December 2017.

While this trial may not be hot news for anyone outside of the music industry, it will determine the amount of money music creators can earn for the next five years.

The music users’ side includes representatives from digital giants like Google, Spotify, Pandora, Amazon and Apple. These companies are lobbying to further decrease the royalties paid to music creators. For example, Apple wants to pay a flat fee of 9.1¢ per every 100 streams on Apple Music. Companies like Google, Amazon and Apple make billions of dollars per year, and Spotify and Pandora are not profitable but have billions invested in them, yet not one of these companies is willing to allocate more money towards the people that create the music on which they have built their businesses. It is also worth noting that not only have these companies built their business models on music but also are using music to promote their services, such as Amazon using free music streaming to sell Prime subscriptions.

The National Music Publisher’s Association (NMPA) and Nashville Songwriter’s Association (NSAI) are representing music publishers and songwriters at the CRB hearings. “[Tech companies are] creating new ways to distribute music [and] they are also fighting in this trial to pay as little to songwriters for the songs that drive their businesses,” wrote David Israelite, president and CEO of NMPA in a letter to songwriters. “[A] rate structure that allows global tech companies to build their empires on the backs of songwriters, without providing those songwriters with fair compensation, is unsustainable.”

The NMPA has issued an open letter to the digital giant companies, urging them to work with songwriters and music publishers instead of fighting against them. The letter is accompanied by a petition, which has already received over 7,800 signatures.

As I have previously written, the music industry will continue to wither without fair compensation to its creators and those that represent them. Creators of music are not all rich superstars. They are regular people with amazing talents to create music that impacts lives around the world. They are people with families and mortgages and bills to pay. They may not work a 9-5 office job, but that doesn’t make them different than the average American, who earns money from a job, and why shouldn’t songwriters and their representatives earn as well?

*This article does not constitute legal advice.

Erin M. Jacobson is a music attorney whose clients include Grammy and Emmy Award winners, legacy clients and catalogs, songwriters, music publishers, record labels, and independent artists and companies. She is based in Los Angeles where she handles a wide variety of music agreements and negotiations, in addition to owning and overseeing all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection.

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How Influential Are You?: How Music Creators and Companies Can Leverage Branding and Online Influencing

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

By: Erin M. Jacobson, Esq.

Today’s music industry is no longer about income from sales. Artists, writers, and the companies that represent them need to find innovative ways to generate additional income streams. In addition to sales, many on the music side have discovered the value of getting synchronization (sync) placements in TV and film. However, this discovery has led to the sync market being oversaturated, and in many cases, reduced fees for sync placements.

Another avenue for artists and rights’ owners involves the branding and influencing space.  Sponsorships and endorsements, as well as social media influencing, have become different strategies brands can use to market their products via influence from traditional celebrities or “ordinary” people with a substantial online following. Celebrity endorsements tend to focus on the celebrity status boosting the brand or using the celebrity’s image to make the brand relevant to a target demographic.   However, the celebrity’s career does not have to have anything to do with the type of product(s) they are endorsing. Influencers are more specialized—they will promote products within certain circles and related to their expertise. For example, a fashion blogger and influencer would promote fashion-related products.

Consumers today want transparency in advertising and recommendations to come from personalities they trust. However, much of the advertising they see appears more transparent than it really is. The Federal Trade Commission (FTC) has issued guidelines for social media and other advertising. In endorsement deals I have done for my clients, there are often provisions stipulating that social media posts promoting the brand are accompanied by certain hashtags to clarify that there is an agreement between the brand and the artist to promote that brand. However, as these guidelines are just that, they don’t seem to be heavily enforced and a lot of product promotions are posted without such notification leading the consumer to believe the recommendations are organic and without any connection to or financial backing from the company.

In addition to transparency in advertising, consumers and fans want personal connections to personalities they admire. They want to share in the commonalities, hobbies, and lifestyle as it makes them feel emotionally closer to the personality and feel like they are able to live a similar lifestyle to the personality. Lifestyle brands often stem from a specific image and way of life stemming from a certain individual and material they are creating, but as society moves toward touching the inner need of individuals to express themselves, artists like Lady Gaga are combining the traditional model of selling the lifestyle of the celebrity and using the celebrity’s values to promote the fan’s expression of individuality.

While artists can tap into commonalities in the lifestyles of fans, doing so for rights’ holders like music publishers and record labels is slightly more difficult. Rights’ holders can seek these opportunities for their artists or writers to involve them as the “face” of a campaign, but in the case of a writer, this plan doesn’t work if the writer is not also a performer. However, in these situations, rights’ holders can seek to use the music as the “soundtrack” of a particular brand by using the sound, feel, and what the music represents to showcase a brand or lifestyle that appeals to consumers. This can be a symbiotic relationship where a more established brand can help break or boost a newer musical talent, but also where more established music can help to break or boost an up-and-coming brand. In most cases, sync rights will be involved in these campaigns, but the relationship can be extended for more than just a single placement. Taking it a step further, having the music or artists involved in events, stores, and activities in which the demographic participates and then having product to monetize at these venues can help to bring the campaign full circle. Both artists and companies like labels may be able to leverage online influencers by having them attend and post about the artist’s concerts or other events.

Opportunities on the Internet continue to expand, as social media now incorporates music and short videos and audio clips in addition to photographs. While some of the monetization of the use of the music in these posts can be questionable, short clips of audio and video can be the gateway to monetizing other avenues with more substantial revenue like concert tickets, merchandise, sales, and other participation that leads to larger opportunities.

In summation, today’s means of reaching consumers extends beyond traditional demographic analyses. Today’s marketing and ancillary income relies on finding ways to emotionally connect artists and music with consumers in an authentic way and enabling consumers to feel like they are able to express themselves and their ideal lifestyle through their association with the artists and music they consume.

Click here to contact Erin to review and negotiate one of these agreements on your behalf, or counsel you on your specific situation.

 

 

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. 

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Ask a Music Lawyer: How to Actually Hire a Lawyer

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Categories: Articles, Music, Tags: , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was originally published on Sonicbids.com.

I’ve previously discussed what to consider when hiring an attorney and how to find the right attorney for you. Some questions have been asked about what the hiring process actually looks like once you have found the attorney with whom you want to work. Overall it’s fairly simple, however, the process can be filled with uncertainty if you’ve never hired an attorney before. Procedures vary slightly between attorneys, but here’s an idea based on the general landscape and my own personal experience.

1. Speak with lawyer about fees, how those fees are paid, and make sure you are able to pay those fees

As I discussed in a prior article, attorney fees typically range from $250 to $1,000 per hour. When you pay an attorney hourly, you’re paying for that attorney’s time and skill provided during the time spent on your matter, which usually includes phone calls, correspondence, and advising you, in addition to drafting or reviewing an actual document. The attorney will usually use a timer or other program to keep track of the exact time spent on your matter.

Some attorneys will charge certain tasks on a flat fee or charge on an overall percentage basis. While hours are not tracked under these models, the principles of paying for the attorney’s skills are the same. Percentage clients are usually those making sizable incomes and receiving large advances, as otherwise the attorney would be putting in a lot of time in exchange for pennies.

Hourly and flat-fee models will often require an upfront retainer, which is an advance payment of fees by the client. The attorney will then consider the funds “earned” after completing the work covered within that month’s billing cycle.

If there are still funds left in the retainer, those can be carried over to future work or refunded to the client. Some attorneys do still allow for payment after the work has been done, but that has become rare. Attorneys working on a percentage are usually paid by the client’s business manager.

2. Sign the engagement letter and complete any attorney paperwork

When you’ve communicated to the attorney that you would like to hire him or her, the attorney will most likely require you to sign an engagement letter or fee agreement.

This letter is an agreement between the client and the attorney and is there for the client’s protection. The letter usually explains what services the client is hiring the attorney to perform, the agreed-upon fee, an explanation of billing practices and other charges, as well as office policies. You have the right to have this letter reviewed by another attorney.

Other attorneys require some other forms as well, such as information forms to keep a client’s contact and other relevant information on file for convenience. The attorney will let you know what forms are required and how you should submit them.

3. Send contracts/agreements

Once you’ve officially hired the attorney, you can then send whatever contracts or other information you need the attorney to review. The attorney can also start making phone calls or otherwise acting on your behalf.

The exact actions will vary based on your matter, but the gist is that the attorney cannot do any work for you or act as your representative until officially hired by you.

4. Introduce the attorney to other team members

If you have a manager, agent, or other team members you work with and they haven’t already been introduced to your attorney or know that you have hired a particular attorney, they should be notified and introduced to your attorney. Ideally, this would have already occurred so you could have made sure everyone on the team would work well together.

5. Be respectful of the attorney’s time and business practices

Most attorneys keep fairly regular business hours, and in the music business that usually means about 10:00 a.m. to 5:00 or 6:00 p.m. Be respectful of your attorney’s time and don’t expect him or her to return your phone calls or emails outside of these hours unless you know that your attorney keeps a different schedule or is on-call 24/7.

Also remember that you’re not the attorney’s only client, so allow a reasonable amount of time for the attorney to respond to you before following up. Also, don’t assume the attorney’s phone number is a cell phone, so don’t text your attorney unless you know it’s okay to do so.

In addition to being respectful of the attorney’s time, be respectful of your attorney’s payment policies. For example, if the attorney requires a retainer, don’t fight to pay only after work has been completed.

Also, be mindful of how you are being billed (hourly, percentage, flat fee) and what you are being billed for (phone calls, emails, drafting, hourly minimums) so there are no surprises later.

6. Be professional.

Your relationship with your attorney is a professional one, so act accordingly. Attorneys are allowed to be friends and socialize with clients, but don’t make sexual advances towards your attorney, call your attorney names, telephone your attorney when intoxicated (unless you need to be bailed out), or exhibit other non-professional behavior.

Be organized and make sure the attorney has the information needed to do the work for you. Not only does it make the work flow smoother, but it cuts your costs because the attorney doesn’t have to spend his or her time chasing you for information.

Remember, information you give your attorney is confidential. It is important to be honest about all information with your attorney, as your attorney cannot adequately represent you or handle a situation for you if you withhold information.

If you don’t know how your attorney wishes to handle something, what your attorney’s particular policies are, or if there’s something else you don’t understand – ask! As in all relationships in life, honesty and communication are the best policies.

7. Value your attorney and the contribution he or she makes to your career

Your attorney has had years of rigorous scholastic training and experience in the real world. In the case of the music industry, attorneys needs to have a deep understanding of a very complex set of laws (intellectual property, contracts, etc.) in addition to the business and intricate payment practices of a very unique industry.

When you hire an attorney, you’re getting the benefit of the attorney’s vast amount of knowledge and experience. You’re not just paying for a physical product like a contract, you’re paying for the attorney’s expertise and the ability to handle a complex issue effectively and efficiently.

If there’s a legitimate problem with the work or a bill, then by all means address it, but don’t ask your attorney to handle a matter and then complain about what it cost, as it’s insulting to the attorney and the service he or she provides to you.

Overall, just use common sense and be respectful. Your attorney is there to look out for your best interests and is one of the most important relationships of your career.

 

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.

 

Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. She protects clients ranging 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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Don’t Get Screwed Over : 3 Scenarios Where a Handshake Deal Isn’t Enough

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

Get It In Writing - Erin M. Jacobson, Esq.

Musicians often ask me when they need to “get it in writing” as opposed to just having a verbal agreement or handshake deal. The real answer to that question is that you should always get agreements in writing, but there are three frequently occurring scenarios where it’s essential. Doing so will provide you with much needed protection later on when money or fame create unanticipated problems. Here’s how to handle each situation.

1. Co-writing songs

When co-writing songs with others, it’s imperative to have a songwriter split agreement. This is a short agreement listing the writers of the song and in what percentages they are sharing ownership and royalties. There are longer versions of this agreement that lay out more terms, but a songwriter split agreement is the minimum that you should have in place.

This agreement is important because it offers some proof if someone who’s not a writer tries to claim he or she is owed a credit or portion of ownership or royalties on a song. Here’s a story of an actual situation that happened to a band several years ago.

A new band wrote some songs for their first album while in the studio. As is fairly common, the band had some friends and band members’ girlfriends in the studio with them. One of the songs the band wrote that day in the studio ended up being a huge hit for them that produced a large amount of royalties. The band never completed a songwriter split agreement.

A short time after the song became a hit and the money started rolling in, a girlfriend – now ex-girlfriend – of one of the band members contacted the band and said that the band had promised her 10 percent ownership of the song for contributing a certain line. The band said that they never promised her anything, but she threated to take them to court. The ex-girlfriend had no proof she actually contributed to the song, but the band had no proof that she was lying.

In order to avoid an expensive lawsuit, the band had to give her the 10 percent she wanted. While a written agreement doesn’t prevent someone from making a claim, if the band had completed a songwriter split agreement at the time the song was written, they would have had some sort of proof that the ex-girlfriend was not one of the writers of the song or owed any ownership interest in it. They could have potentially avoided giving up 10 percent ownership and income to someone who didn’t earn it.

2. Working with a producer

Musicians often come to me with problems they’re having with a producer. Often, the producer isn’t turning over the masters because there was a misunderstanding between the parties, or sometimes a producer’s claiming more ownership or income share than he or she should.

The source of these problems is usually that the band didn’t get the terms of the agreement with the producer in writing. As a result, the parties had different understandings of what they each thought the agreement entailed, important terms hadn’t been discussed and left to work out at some later date, or someone changed his or her mind because he or she didn’t have anything in writing to dispute the new terms.

Producer agreements are really important because the creator of the music is bringing in a third party who contributes (some more significantly than others) to the masters and sometimes to the compositions. Producers sometimes have claims to master ownership or require a songwriting credit when they haven’t written part of the song. Producer fees and royalty structures can vary based on genre, stature of the producer, and whether there’s a record deal involved. So, again, having the payment clearly defined is essential.

A band came to me recently after working with several producers on their album, with no written contracts. After spending a lot of money on recording, the band had allowed the main producer on the album to dictate terms of compensation with all the other producers. When the album was finished, the band was left with only 10 percent ownership of all compositions and masters on the album when they were the main songwriters and only performers.

I asked the band why they didn’t seek my counsel or other assistance earlier instead of waiting until this point, and their answer was that they had hoped things would improve on their own. Had the band sought advice on this situation earlier and gotten producer agreements in place with fair terms, this situation could have been avoided.

3. Forming a band

Band agreements are also really important because every band is different. In some bands, everyone writes and all members share equally in royalties, and in other bands, only the main members share credit and royalties while other members are treated more like employees. Bands also have unique issues regarding the band name and who can use or perform under that name if the band breaks up or a member leaves.

The time to create a band agreement is right in the beginning stages of the band when all members are still on good terms with each other. The conversation about the issues covered in a band agreement may seem uncomfortable at first, but ultimately clarifies expectations and protects everyone in the band. If certain band members are unreasonable or cannot agree during this initial conversation, that’s a red flag you’ll be glad you discovered sooner rather than later.

Although being in a band is a creative and fun experience, what many musicians forget is that it is also a business, and needs to be run as such in order to stay organized and find success.

Here’s a story about why having a band agreement is important: I received a call from a musician whose band was in the process of breaking up. The band had been together for several years, and this musician wanted to know if he could continue earning income from the band’s songs and whether he could use the band name in the future.

I learned the band didn’t have an agreement and hadn’t discussed ownership of compositions, masters, artwork, the band name, or how any of these things would be treated if the band broke up. The relationships between the members had turned contentious, and there was no way any of them were in an emotional state to agree on anything.

Because the members weren’t talking, it would have taken a lot of investigation or possibly litigation to figure out how the material should be split and who could use the name going forward. It was very probable this musician would no longer be able to profit from the hard work he had contributed to this band over the last several years.

Had the band created a band agreement in the beginning, they could have discussed these issues and decided how all of their material would be treated in the event of a breakup. While the agreement wouldn’t have prevented a breakup, it would have clearly explained how the material was to be treated and how the members could proceed when the event occurred instead of potentially stripping the members of the proceeds of their contributions.

How and where do you get it in writing?

The best option is to hire an experienced music attorney to draft these agreements with language and terms specific to the situation at hand.

If you cannot hire an attorney due to the cost or other reasons, you can download high-quality contract templates drafted by a music attorney at Indie Artist Resource. Each template covers the most common issues faced in those situations by musicians and comes with instructions to facilitate easy completion of the agreement.

If a formal contract is still not possible, having some evidence in writing is beneficial. You can follow a verbal conversation with an email saying, “To recap the terms of what we discussed…” and then briefly summarize the terms so there is a written record of it. While it is not the same as or as strong as having an actual signed contract, it does help to leave some trail of proof if things go wrong down the line. This is a good idea especially for situations where contracts aren’t always used, like casual agreements with venue talent buyers or promoters.

This article 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.

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June Music Legal and Business Roundup

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Categories: Copyright, Infringement, Legal Disputes, Legal Issues, Music, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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Here’s a recap of my article’s this month:

 

The most talked-about topic in the music legal world this month was certainly the copyright infringement case where band Spirit is sued Led Zeppelin over allegations that “Stairway to Heaven” infringed on Spirit’s song “Taurus.”  The good news is that Led Zeppelin Wins ‘Stairway to Heaven’ Jury Trial!

Here’s a recap of the week’s trial coverage:

What was also exciting is the recent push by artists to urge online content providers like YouTube to #valuemusic.  This call to action also involves the request to reform the Digital Millennium Copyright Act (DMCA) which allows safe harbor provisions for YouTube and other online content providers.

In other news, those on the other side of the spectrum are filing lawsuits to force certain musical compositions into the public domain so that they don’t have to pay the license fees for them.  This is one of a few lawsuits to follow the “Happy Birthday” case.  This is certainly not a way to #valuemusic.

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