
Erin M. Jacobson, Esq. has been named to Billboard magazine’s “Top Music Lawyers List” for 2021. Ms. Jacobson was also recognized on this list in 2020.
The full article can be seen here.
Thank you to Billboard for this prestigious recognition!
Categories: Honors and Awards, Music Industry, Tags: best music lawyer, Billboard, Billboard magazine, billboard top music lawyers, billboard top music lawyers list, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., the music industry lawyer, top female attorney, top music attorney, top music lawyer, top music lawyers list, top music lawyers list 2021, top woman music attorney, top women attorneys, top women music attorneys
Erin M. Jacobson, Esq. has been named to Billboard magazine’s “Top Music Lawyers List” for 2021. Ms. Jacobson was also recognized on this list in 2020.
The full article can be seen here.
Thank you to Billboard for this prestigious recognition!
Categories: Copyright, Music Contracts, Music Industry, Music Publishing, Tags: copyright, copyright law, copyright ownership, copyright registration, copyrights, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., music attorney, music attorney la, music attorney los angeles, music book, music business, music business attorney, music business book, music business lawyer, music contracts, music industry, music industry book, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, music publishing, music royalties, the music industry lawyer, top music lawyer
Don’t Get Screwed! How to Protect Yourself as an Independent Musician by Erin M. Jacobson, Esq. is now available in both print and ebook versions.
About the Book:
There’s a lot of confusing information in the music business: copyright, different types of royalties, how to get paid, and how to not sign over rights you shouldn’t. Now there is a single resource that explains these concepts in an easy-to-understand format.
Written by Erin M. Jacobson, one of the music industry’s top lawyers, this book is a plain English, straight to the point, primer on the topics you need to understand to make important decisions about your music career.
This book explains:
– what copyright really means and why you should register yours,
– the different types of royalties and how they actually apply in the real world so you can understand how and when your music earns money,
– how to collect the money your music earns,
– the contracts most needed by independent musicians and why they are important,
– traps to avoid, and
– real examples of mistakes musicians have made and how you can avoid making them too.
This book provides information from an industry insider that is not available in other publications, and is an empowering resource for new, upcoming, and seasoned musicians.
Categories: Articles, Copyright, Infringement, Music Industry, Trademark, Tags: copyright, copyright infringement, copyright law, copyright registration, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., music attorney, music industry lawyer, music law, music lawyer, music lawyer los angeles, the music industry lawyer, United States Copyright, US copyright law
By: Erin M. Jacobson, Esq.
Music creators and rights owners ask me on a daily basis about whether their musical compositions and recordings are properly protected by copyright. Lately, there have been some companies popping up claiming to offer protection for musical works, and these companies are promoting misinformation that actively hurts music creators and rights’ owners. In this article, I set the record straight.
Copyright Protection
When a work created with sufficient originality to qualify for copyright protection and is “fixed in a tangible medium of expression,” it technically has copyright protection under the law. “Fixed in a tangible medium of expression” means that the work has been reduced to a physical format capable of being reproduced, such as writing it down, recording it on an audio or video recording, etc.
However, even though a work may have copyright protection when it is created, registering works with the United States Copyright Office provides certain benefits that one only has with a federal registration. These benefits include:
Let me emphasize two of these points again:
A person (or company) cannot sue in federal court for copyright infringement without a registration with the U.S. Copyright Office, and the date of creation listed on a federal registration certificate is the strongest evidence a court will consider.
The Nature of Copyright “Registration” Companies
To be clear, there are some companies that will provide the service of filing copyright registration applications with the U.S. Copyright Office on a creator’s behalf. While one should still do one’s due diligence on these companies to make sure they are experienced and will file the registrations correctly, the services these companies provide is not the focus of this article.
In this article, I am specifically talking about companies that offer “registrations” with their own service in order to “protect” a work. There are companies offering a “date stamp” – some of them even advertise an encrypted date stamp – to show evidence of the date of creation of a work. These companies charge just a few dollars per registration and make it appear that using their service will save the user a lot of money in comparison to the fees of the U.S. Copyright Office (currently ranging from $45-65 per application).
However, here is the problem:
First, as already explained, the date of creation listed on a federal registration certificate is the strongest evidence a court will consider. While a court may look at other outside evidence, there is absolutely no guarantee they will accept this evidence, and a court will still want the federal registration certificate. When I have inquired with these companies about whether they have any instances of a court accepting the registration they offer as valid, I have not received a response, and the fine print on these companies websites will state there is no guarantee their registration will be accepted as evidence by a court. In other words, the answer here is no.
Second, also as already mentioned, a federal registration certificate is required to pursue a copyright infringement claim in federal court. If one does not have a federal registration certificate and an infringement (or potential infringement) occurs, the owner of the allegedly infringed work will then have to immediately register the work with the U.S. Copyright Office in order to pursue the claim, AND, will have to rush the application to pursue that claim timely. The Copyright Office calls this rushed status “Special Handling,” and charges a fee of $800 to rush the application.
While someone thought spending less than $5 on a “registration” with a private company was saving money, that person would end up having to pay $845-865 just to obtain a federal registration to have the ability to defend an infringement for one work. If the person initially registered the work correctly with the Copyright Office, the fee would have been $45-65, and would have come with all the protections afforded by federal registration, saving that person $800 (plus the money already spent on the other “registration” company).
A Note about Trademarks
Trademarks, which in the music space mostly apply to band names and company names, have a little more leeway here because trademarks can gain protection by use “in commerce”, i.e. out in the marketplace. However, the same benefits outlined for federal copyright registrations apply to trademark registrations as well.
Therefore, while these trademark “registration” services provide an example of using a name at a certain time, they do not provide the good will that can only be built by using the mark in commerce, which could include performing under that name, selling music under that name, etc. Plus, one also cannot sue to protect a trademark in federal court with out a federal trademark registration.
Therefore, the same arguments above also apply here as to why these companies are a waste of money.
What if There Is No Federal Registration?
For both copyrights and trademarks without federal registrations, there may be some protections under state “common” law, however, these protections only extend within a certain state (hugely important in the case of trademarks especially), and provide a much lower level of protection than federal registrations.
Conclusion
Music creators and rights’ owners receive bad information all the time — from friends, other people in the business, and the internet. However, what really makes me mad is when companies – many of them owned by musicians or former musicians – make promises to music creators and rights’ owners under the guise of helping them, when really the “service” they provide does not afford the level of protection suggested and is profiting off the ignorance of music creators who are simply trying to protect their work.
Are these companies malicious in their intentions? Probably not. They probably just saw what they thought was a creative business idea. As I mentioned, the fine print usually indicates that these services only provide an indication of a date of creation and no guarantee of acceptance as evidence by a court, but let’s face it, almost no one is going to read the fine print. Independent musicians already working with smaller budgets do not need to spend money on worthless date notations when they should be putting their money toward receiving all of the benefits afforded by federal copyright registrations.
A person can file one’s own registration applications with the U.S. Copyright Office, and those on a budget may be able to file some applications containing multiple works (if certain conditions are met). However, because the details of such registrations can often become nuanced, one can also hire an experienced music attorney to assist with correctly protecting one’s works.
All music creators and rights’ owners deserve the real and true information on how to protect their works. The correct information is available and can be obtained with a little research or by working with professionals acting in accordance with the definitive procedures provided by U.S. Copyright Law.
Creators and rights’ owners owe it to themselves to protect their work correctly, rather than looking for a cheap solution that will ultimately leave them and their work unprotected when it counts.
This article does not constitute legal advice.
Categories: Music Industry, Music Libraries, Music Licensing, Music Publishing, Royalties, Speaking, Tags: americana, americanafest, digital age, digital music licensing, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., music attorney, music lawyer, music licensing, music licensing in the digital age, thriving roots
Erin will speak on the panel “Music Licensing in the Digital Age” at the virtual Thriving Roots conference, produced by the Americana Music Association.
Panel information:
“Music Licensing in the Digital Age”
Date: September 18, 2020
Time: 3:15-4:45 PM Central
Panelists:
Jeff Brabec, Esq., BMG, & Author of Music, Money, and Success
Todd Brabec, Esq., Author of Music, Money, and Success
Erin M. Jacobson, The Music Industry Lawyer
Kirk Schroder, Schroder Brooks Law Firm
Categories: Music Industry, Press, Tags: Billboard, Billboard magazine, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., top music attorney, top music lawyer, top music lawyers, top music lawyers 2020, top music lawyers list
I can finally announce that Billboard has named me to its Top Music Lawyers List for 2020.
It is an honor to be recognized by Billboard, who has served as an authority in our industry for many years, and to share this honor with my colleagues.
Here’s a link to the full article.
Thanks to Billboard and to all of my clients, and you who are reading this!
Categories: Articles, Tags: entertainment lawyer la, entertainment lawyer los angeles, erin m. jacobson, erin m. jacobson esq., find a music attorney, la music lawyer, music business lawyer, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, music publishing, the music industry lawyer
Categories: Honors and Awards, Press, Tags: attorney, beverly hills, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., female attorney, find a music attorney, lawyer, los angeles, music attorney, music attorney la, music attorney los angeles, music business, music industry, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, Rising Star, southern California, Super Lawyers, top attorney, top female attorney, top woman music attorney, Top Women Attorney, top women attorneys, top women lawyers, top women music attorneys, top women music lawyers, woman attorney
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.
Categories: Articles, Business, Infringement, Legal Disputes, Legal Issues, Music Industry, Music Publishing, Royalties, Streaming, Tags: bluewater, Blurred Lines, bob gaudio, can't take my eyes off of you, copyright infringement, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., forbes, four seasons, frankie valli, gaudio, infringement, lowery, Marvin Gaye, mechanical, music attorney, music attorney la, music attorney los angeles, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, music publishing, nmpa, notice of intent, richard busch, royalties, sherry, spotify
By: Erin M. Jacobson, Esq.
This article was previously published on Forbes.com.
When you stream music on Spotify, are you aware that as you are enjoying your favorite song, Spotify might not be paying the person who wrote that song?
Spotify has been sued for upwards of $345 million by Bob Gaudio and Bluewater Music Services Corporation for failure to pay mechanical licenses when their compositions are streamed on Spotify. Gaudio, a former member of Frankie Valli and The Four Seasons, wrote and publishes some of the group’s biggest hits including “Sherry,” “Big Girls Don’t Cry,” and “Walk Like a Man,” as well as Valli’s solo hit “Can’t Take My Eyes Off of You.” Bluewater administers the publishing for compositions like Player’s “Baby Come Back,” Miranda Lambert’s “White Liar,” and Guns ‘N Roses’ “Yesterdays.”
Streaming requires several licenses –sound recording licenses from the record labels; performance licenses for the compositions from performance rights organizations such as ASCAP and BMI; and mechanical licenses for the reproduction of the compositions. While Spotify has deals with the major labels, and blanket licenses with ASCAP and BMI, Spotify has not complied with the requirements for mechanical licenses and payments for all compositions streamed on its platform. Obtaining a mechanical license in the United States is compulsory, meaning that a person or company wishing to reproduce a composition must follow the guidelines in Section 115 of the United States Copyright Act to serve a “Notice of Intent” on the copyright owner and pay said owner the compulsory license fee. Spotify has followed this procedure for compositions affiliated with the Harry Fox Agency (the closest body the United States has to a mechanical rights society), but there are many compositions not affiliated with the Harry Fox Agency that Spotify would need to contact and pay directly – and Spotify largely has not done so.
This is not the first time Spotify has come under fire for its inadequate licensing practices. In 2016, Spotify reached a $30 million dollar settlement with the National Music Publisher’s Association (NMPA) for unpaid mechanical royalties, and Spotify just settled another class action suit for $43.4 million dollars. While maximum statutory damages rates are $150,000 per infringed composition, Bluewater claims that Spotify will only have to pay songwriters $4 per infringed composition after litigation fees are paid. Per the previous settlements, Spotify must also implement a better system to properly track and pay mechanical royalties, and Bluewater asserts this has not yet happened.
The attorney for both Gaudio and Bluewater is Richard S. Busch, most recently in the news for his representation of Marvin Gaye’s estate in the “Blurred Lines” case. Echoing my previous sentiments, a press release citing Busch’s complaint sums up the issue in a single sentence: “Songwriters and publishers should not have to work this hard to get paid or have their life’s work properly licensed, and companies should not be allowed to build businesses—much less billion-dollar businesses—on the concept of ‘infringe now and ask questions later.’”
*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. Ms. Jacobson also serves on the boards of the California Copyright Conference (CCC) and Association of Independent Music Publishers (AIMP).
Categories: Articles, Copyright, Legal Issues, Music Industry, Music Publishing, Royalties, Tags: ascap, bitcoin, blockchain, copyright, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., find a music attorney, global repertoire database, grd, isrc, iswc, metadata, micropayment, music attorney, music attorney los angeles, music data, music database, music industry, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, music metadata, music rights, music rights database, performance rights organization, pro, prs, royalties, sacem, song data, song metadata, the music industry laywer
By: Erin M. Jacobson, Esq.
This article was originally published on Forbes.com.
Today’s hot topics in the music industry are more about data and payments than sex, drugs, and rock ‘n’ roll. As previously discussed, payments to musicians, songwriters, and the companies that represent them are unfairly low. Aside from the rates, the other problem with getting paid fairly relies on the accuracy of the data relating to music.
Digital uses of music require various types of data embedded in and tied to digital music files – called metadata. Metadata includes data like the copyright owners of the compositions and master recordings, ISRC codes (unique identifying codes for master recordings), ISWC codes (unique identifying codes for compositions), performance rights organization affiliations, and other information. One large problem with current metadata within the industry is a problem of matching. Music publishers and record labels often need to match data so certain sound recordings are matched to the composition embodied within them, or that certain uses can be matched to the exact sound recording and composition used. However, there is not yet a good system in place for totally accurate matching, which means a lot of extra work for rights’ holders to identify uses of their works in order to collect the payments associated with those uses.
The other problem is the lack of correct metadata. Oftentimes, identifying correct metadata is like identifying the correct message in a game of telephone. Between the publishers, labels, distributors, and other involved entities, metadata that may have been correct at the beginning of the chain is often incorrect by the time it reaches a stage of usage, resulting in incorrectly identified (or unidentified) owners who don’t receive payments because it is unclear who to pay.
Metadata is often incorrect for several reasons: (1) human error of employees incorrectly inputting data, and (2) lack of communication stemming from either rights’ owners not being clear on their shares of ownership or co-owners not sharing ownership information, (3) companies that have been sold or gone out of business with no clear successor, and (4) people who claim ownership of shares to which they do not actually have rights. In addition, many rights owners (often songwriters) do not want their ownership shares made public because they feel the ease of third parties figuring out what they earn will decrease their bargaining power.
There has been a longstanding argument within the music industry for the need for a centralized database containing all relevant ownership information for all songs. There was an initiative to create the Global Repertoire Database (GRD) to solve this problem, however, the initiative failed reportedly due to companies not providing their data, side initiatives focused on mini-GRD projects, and lack of funding. Although the GRD failed, there are other possible alternatives. CISAC, which is a worldwide collective society of author organizations, supports CIS-NET, a global network of ownership information powered by Fastrack. CIS-NET will be available to CISAC member societies, but not the general public or digital service providers.
Significant attention has been focused on using Blockchain technology to create an open database that is not governed by any one body and can be contributed to by multiple sources. This is a similar principle to the Wikipedia model. The advantages of using Blockchain technology for a centralized music rights database include: the data on the platform is encrypted and run across multiple computers making it difficult to hack; its Bitcoin protocol supports micropayment amounts, making it easier for rights owners to receive that $0.0007 payment and receive it directly; and its decentralized nature allow for rights’ owners to correct information on the rights they own.
However, in my opinion, there needs to be a centralized body to oversee the database to protect against bogus claims and try to discern correct data when inconsistencies are present. Further, while it is great that Blockchain technology can pay artists and writers directly, the technology needs to be implemented in such a way that representatives of rights’ owners like performance rights organizations, music publishers, record labels, attorneys, etc. are not circumvented, as those representatives are essential to handling important business functions for artists and rights’ owners who need to spend their time creating instead of drowning in the minutiae of administration.
The music industry needs a central database with correct information, splits, metadata, etc., both for cohesiveness within the industry and for information transparency to increase the efficiency and reliability of receiving payments. While Blockchain puts forth some real advantages, there is one element that Blockchain or any other database will never have – the human element. The music business is a business of relationships, a business run by people who manage and guard the rights of the music. Therefore, we can only achieve a winning proposition if the business can implement the technology in a way that supports the structure of and the people within the music business.
Categories: Music, Music Industry, Speaking, Tags: artists, bass, drums, elvis, elvis presley, Erin Jacobson, erin m. jacobson, erin m. jacobson esq., esq., fender, find a music attorney, gibson, guitar, music, music attorney, music attorney la, music attorney los angeles, music business, music industry, music industry lawyer, music law, music lawyer, music lawyer la, music lawyer los angeles, music publishing, musicians, namm, national association of music merchants, performance, rickenbacker, speaking, sync, synchronization
Last weekend I had the pleasure of attending and speaking at the annual National Association of Music Merchants (NAMM) convention in Anaheim, CA (right by Disneyland!). NAMM is a fantastic time to see incredible instruments, hang with musicians and industry folk, and conduct business.
Check out my video above where I take you behind the scenes at the convention, and here are some fun photos from the weekend below.