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Erin M. Jacobson, Esq. a Top Woman Attorney in Southern California

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

As previously announced, I have been named one of the Top Women Attorneys (Rising Stars) in Southern California for 2018 by Super Lawyers.  The listing for this honor is in this month’s Los Angeles Magazine.

Thanks to my colleagues and Super Lawyers for selecting me.

Erin M. Jacobson, Esq. named one of the Top Women Attorneys in Southern California by Super Lawyers.

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How Amazon’s Twitch.tv Cheats Music Creators

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Categories: Articles, Copyright, Infringement, Legal Issues, Music, Music Industry, Music Publishing, Performance, Record Labels, Royalties, Streaming, Videos, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was originally posted on Forbes.com.

Music creators (songwriters and performing artists) and rights’ owners (music publishers and record labels) are not collecting a new and substantial source of income – and most of them are not aware they are not collecting it. Enter Twitch, the website exploiting creators and owners without paying for a single cent of music usage.

What is Twitch

Twitch, a subsidiary of Amazon, is a live-streaming video platform that has “over two million broadcasters and 15 million daily active users.” Anyone can become a Twitch “broadcaster,” meaning users set up their own channels and live-stream various content, which includes, but is not limited to, video-game play, card games, pranks, craft tutorials and more.

The broadcasts start out as live streams and are saved on the channel for re-broadcasts and on-demand watching. Watching videos and channels on Twitch is free and publicly accessible to anyone with an Internet connection. Anyone can become a Twitch broadcaster for free and earn money directly from viewers. Broadcasters that contract with Twitch to become a partner or affiliate will earn money from Twitch directly, as well as from viewers. All revenue streams are described in the next two sections.

Income Earned by Twitch and Twitch Partners/Affiliates

  1. Ad Revenue: Twitch serves ads on all video content, which includes video-on-demand and pre-rolls, and collects ad revenue from showing these ads.
  2. Subscriptions: Viewers can subscribe to a particular broadcaster’s channel at pricing tiers of $4.99, $9.99, and $24.99, with these charges recurring monthly.These subscriptions allow viewers to support broadcasters and use special emotes (chat icons like emojis) that are accessible only to subscribers of a particular broadcaster’s channel.
  3. Bits: Viewers can contribute “bits” to a broadcaster during a stream. Bits are a digital currency within Twitch bought by users for real money, and contributing these bits to a broadcaster is basically like adding money to that broadcaster’s tip jar.
  4. Amazon Prime: Because Twitch is owned by Amazon, Prime members can use “tokens” from their Prime membership to subscribe to broadcaster channels on Twitch. Tokens renew every month, so a Prime member can re-subscribe to a broadcaster’s channel on a monthly basis using Prime tokens.

Twitch and the broadcaster split all income from subscriptions, bits, and Prime tokens, usually on at least a 50/50 basis.

Income Earned Directly by Broadcasters

  1. Donations:Viewers can contribute money directly to a broadcaster through third party services like StreamLabs, Muxy or StreamElements without buying bits.
  2. Media Share: Viewers can make “media share requests” through StreamLabsand StreamElements, meaning viewers can request a broadcaster to play a certain song, YouTube video, or other media within a live stream (hereinafter “Media Share(s)”). Prices for Media Shares are set by the broadcaster, and some broadcasters will start their pricing at $5 per request.

A Twitch Broadcaster’s Earnings

Twitch’s most popular broadcaster is 26-year old Tyler Blevins, known on Twitch as “Ninja.” Ninja reportedly earns over $500,000 per month on Twitch revenue alone, not counting his recent sponsorship deals by Red Bull and Uber. A recent Forbes article reported Ninja’s earnings calculation: “160,000 subscribers at a higher $3.50 rate per sub means he’s pulling in $560,000 a month from that revenue stream alone. Not counting Twitch bits. Not counting donations. Not counting 4 million YouTube subscribers.”

Ninja and most other broadcasters also use music in their streams. None of this music is licensed and none of this money is going to the music creators or rights’ owners.

Music Licenses Required

Platforms with user-generated audiovisual content require performance licenses for the compositions from performance rights organizations ASCAP, BMI, SESAC and GMR. Music users must obtain synchronization and master use licenses from the music publishers and record labels, respectively, along with paying negotiated fees to “synchronize” the audio with the visual elements. Also, rights’ owners may share in ad revenue in addition to or in lieu of those fees.

It should also be considered whether a broadcaster who repeatedly uses a particular song as a theme song or channel staple (like when Ninja does a victory dance at every game win to the song, “Pon Pon Pon”, performed by Kyary Pamyu Pamyu) is implying an association with or (false) endorsement by an artist, similar to when political candidates use certain songs in their campaigns.

How Music Rights are Being Violated

First, there is no evidence that Twitch has valid performance licenses in place from ASCAP, BMI, SESAC, or GMR (although they may be working on it). Therefore, Twitch is not paying for the repeated performances of music to audiences of millions.

Second, it is not known that any broadcaster using music on Twitch obtains synchronization or master use licenses, or pays any fees for the use of music. Also, neither Twitch nor the broadcasters are sharing ad revenue with rights’ owners.

Third, Twitch does not have its own content ID system like YouTube to track and claim uses of music. Twitch leverages Audible Magic to track audio uses after a live stream is over and will mute infringing content in the on-demand re-broadcasts, but not all content is recognized and removed. Also, there is no system to flag these infringing uses or mute them during a live stream.

All of the money earned by Twitch and its partner/affiliate broadcasters for subscriptions, bits, and Prime membership is retained entirely by Twitch and its partners/affiliates, and money earned from donations and Media Share song requests is kept entirely by the broadcasters. None of these funds are allocated to music creators and rights’ owners whose music is being used in these broadcasts.

Current State of Affairs

On June 22, 2018, the Twitch community received a shock when a group of its most popular broadcasters were banned from Twitch for playing a leaked version of a new song by rapper Juice Wrld that was initiated via Media Share song requests. Interscope Records issued DMCA takedown notices, and per Twitch policy, each infringer was banned for 24-hours.

This incident has shed a light on the use of uncleared music by Twitch broadcasters, but many have either continued with playing uncleared content or will not include certain music in the broadcasts. Ninja has turned off music content so he can then repost videos to YouTube in order to avoid YouTube claims by rights’ owners and keep his YouTube ad revenue. Ninja has publicly stated, “I’ve already reached out about getting rights to music … you can still get screwed over for playing music that doesn’t belong to you. … It’s such a nightmare, that it’s just not worth it.”

Interscope later supposedly stated the DMCA takedowns were an accident and Juice Wrld apologized to the Twitch broadcasters, saying “I will do what I can to prevent it from happening again.”

The National Music Publisher’s Association (NMPA) is rumored to be in negotiations with Twitch for licensing, but has not confirmed or commented as to the details.

Furthermore, Twitch isn’t the only site on the market. There are other, similar sites such as Mixer (owned by Microsoft), Facebook Gaming, YouTube Gaming, and Caffeine. There are also other music-centric sites, like Smule, using music in audiovisual content purportedly without permission or payment. More of these websites, as well as phone apps, with user-generated content, continue to emerge and the rate at which more new platforms are introduced is unlikely to slow due to the prevalence of streaming.

The Real Problems

First, rights’ owners are not enforcing their rights and making sure they receive payment for uses of their content. As stated at the beginning of this article, many creators and rights’ owners do not even know about these infringements. Those rights owners’ that are aware, like Interscope, have allowed the rumors of “accidental” takedowns to be the last word on the subject instead of taking a stand to protect their rights.

Second, Juice Wrld is an example of at least one artist condoning the Twitch broadcasters’ unauthorized use of his work instead of getting paid. Artists and songwriters can and should benefit from these uses, and condoning the infringing behavior allows for more of it, as well as a further loss of income to the creators and rights’ owners.

Third, streamers are often ignorant of how to obtain permission. Noah Downs, a video game lawyer at McDonald, Sutton & DuVal in Richmond, VA observes, “Some broadcasters reach out to artists directly, thinking that if the artist tweets ‘Sure, use my music!’ then it must be okay to use. It does not matter if a broadcaster has that kind of permission from the artist – generally the decision is up to the label.”

Fourth, many streamers feel entitled to play music without permission under the belief they are actually helping artists by giving them exposure. Famous artists and songs do not need free promotion from Twitch broadcasters – they are already famous. While exposure might be helpful for new artists to gain fans, it still doesn’t need to be for free.  For example, music service Pretzel Rocks and music company Monstercat have agreements with artists allowing music to be played legally on Twitch broadcasts with compensation being paid to the artists and songwriters.

In an ironic twist, Twitch viewers and broadcasters frequently use and repurpose clips of other Twitch broadcasters’ content without permission. The broadcasters complain about this practice and will submit content claims when their content is used without permission, but they fail to realize that they are doing the same thing to music creators and rights’ owners. Downs agrees, stating, “In many ways, broadcasters and musical artists are the same, and both deserve to be paid fairly.”

The bottom line is that allcreators and rights’ owners need to be properly compensated for uses of their work. Rather than ignoring or condoning infringing behavior, creators and rights’ owners need to keep up with new uses of music and take a stand to protect the value of their music and their livelihoods.

It’s time creators stopped feeling entitled to steal from and deprive each other of the fruits of their labor. It’s time people realized that using music without permission or payment not only cheats the creator or performer, but also impacts everyone that works for them or with them. It’s time the culture of all creators shifts to one of respecting one’s own work enough to get paid for it and respecting the work of others enough to get the proper permissions and pay the proper compensation. It’s time that everyone gets serious about valuing music.

 

*This article does not constitute legal advice.

Click here to contact Erin M. Jacobson, Esq. if she can assist you in your career with this issue or other music industry issues. (Ms. Jacobson does not shop, litigate, or accept unsolicited material.)

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Want to Get Your Copyrights Back? (Here is What You Need to Know)

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Categories: Articles, Copyright, Music Industry, Music Publishing, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

By: Erin M. Jacobson, Esq.

There has been a lot of buzz lately about songwriters and artists (and their heirs) reclaiming thei copyrights and striking new deals or self-administering/self-releasing. What many want to know, is who can reclaim copyrights and how?

There are certain provisions in the copyright law where, under certain circumstances, an author or that author’s heirs can reclaim copyrights that have been granted away at some time in the past. It’s a really complicated section of the law, and not all attorneys are well-versed in it, so it is important to make sure whoever you hire really knows the intricacies of filing terminations.

For purposed of this article, I’m going to go over the basics.

There are two main sections of the copyright law that apply to copyright terminations:

  • Section 304c applies to copyrights and grants before January 1, 1978. Termination under this section can be effected between 56 and 61 years after the original date of copyright, and termination may be effected in regards to one author’s share of the work.
  • Section 203 applies to grants made after January 1, 1978, regardless of the original copyright date of the work. Grants falling under this section may be terminated between 35 and 40 years after the grant date. If the grant 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.
  • Note that under Section 203, grants signed by more than one author require a majority of those authors or their heirs to terminate the grant. It is not like section 304, where one author’s share can be terminated independently. However, there are exceptions to this rule if separate grants were signed, such was the point at issue in the Victor Willis/ “YMCA” case.

Who can terminate?

  • The author
  • The author’s heirs, if the author is no longer living. (There are only specific people in a specific order of succession that are considered heirs. Again, make sure you have an attorney experienced with terminations advise you.)
  • If the author’s share is being terminated by the author’s heirs, those heirs must make up a majority (at least 50%) of that author’s termination interest.

Some additional points that apply to terminations under both sections:

  • When you want to effect a termination, you actually have to send a notice to the current owner of the copyright in advance of the termination date. This notice must be served not more than ten, but not less than two years before the effective date of termination. If you miss this notice window, you lose your right to terminate.
  • The notice must be recorded with the Copyright Office before the effective date of termination to be valid.
  • Works made for hire or grants by will are not eligible for termination.
  • Termination is a matter of law, so it can be affected regardless of any contract or agreement to the contrary.

Why is the right to terminate important?

Recapturing rights and starting to exploit them again can revive older compositions or catalogs, and help them to start making money again when they’re currently lost and forgotten in the catalogs of large music publishers. Also, this increased exploitation (or an advance in a new deal) would mean more money for the authors or heirs. The decision whether to terminate must be carefully considered based on the catalog at issue as well as the situation of the authors/heirs.

I regularly work with legacy clients and their heirs to determine the best plan for the catalog and filing termination notices, if that is the best choice for the client, so please contact me if I can help you with your catalog.

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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How Spotify Has Waged War With The Music Industry

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

By:  Erin M. Jacobson, Esq.

This article was first published on Forbes.com.

Spotify has waged a war with the music industry. The streaming company has a history of not paying mechanical royalties to songwriters and music publishers, and has already settled two separate class action lawsuits for failure to pay mechanical royalties – the first brought on behalf of music publishers by the National Music Publisher’s Association (NMPA) and the second, known as the Lowery/Ferrick case, brought by independent songwriters. Now, a host of top songwriters, including Tom Petty and members of Rage Against the Machine, Weezer, The Black Keys, and more, have come forward urging the court not to approve the terms of the Lowery/Ferrick case. These songwriters oppose the settlement amount in the Lowery/Ferrick case because when the costs are broken down, Spotify’s liability for not paying mechanical royalties would be to pay a mere $3.82 per infringed composition. The maximum liability under the law for copyright infringement is $150,000 per infringed composition. Quite the difference.

As I previously reported, Spotify was also hit with two independent lawsuits – again for failure to pay mechanical royalties — brought by songwriter/publisher Bob Gaudio and music administrator Bluewater Services Corporation. Even more recently, seven other music publishers have sued Spotify for the same violation.

The Gaudio/Bluewater suits accused Spotify’s practices being reminiscent of Napster, which caused Spotify to fire back with the outrageous claim that Spotify should not have to pay mechanical royalties to songwriters and music publishers at all. More realistically, Spotify has argued that copyright law does not define streaming and places the burden on the plaintiffs to show that Spotify is creating a “reproduction” and therefore required to pay mechanical royalties.

As I explained in my last article, 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. Spotify now argues that it is akin to other streaming services like Pandora, who only have to pay performance royalties. However, Spotify’s argument is flawed for several reasons.

  • First, Pandora and similar services online radio services are classified as non-interactive services because a user cannot choose to listen to a specific song on demand. This is similar to terrestrial radio, except it’s online instead of on the FM dial. In contrast, a Spotify user can choose and play any song the user wishes on demand, which makes Spotify an interactive service. Copyright law makes important distinctions between non-interactive and interactive services, and for the relevant purposes here, the most important difference is that non-interactive services are only required to pay performance royalties (as the use is only a performance, again, like terrestrial radio) and interactive services are required to pay both performance and mechanical royalties (because the nature of the technology actually consists of a reproduction of the data file in addition to the performance itself). Therefore, Spotify cannot rely on the requirements of a separately classified type of service when those requirements don’t apply to Spotify’s service.
  • Second, Spotify has previously stated that it “needs” mechanical rights as part of its operations and has argued in rate court proceedings to weigh in on what mechanical rate amounts it should have to pay. It is both hypocritical and faulty reasoning for Spotify to say it needs certain rights and subsequently argue the opposite.
  • Third, Spotify has previously settled the two class action lawsuits mentioned above in order to rectify its previous non-payment of mechanical royalties. Spotify’s excuse in these cases was that it was too difficult to pay everyone owed due to the lack of a comprehensive music industry database. Once again, Spotify previously accepted that it needed to pay mechanical royalties, but made excuses for its failure to do so, which is in direct opposition to its current claim that it does not need to pay mechanical royalties at all.
  • Fourth, the music industry has long ago come to a consensus that an interactive stream does require a mechanical license and there is evidence that Spotify actually does create reproductions of the files, specifically on users’ mobile phones.

While Spotify’s argument that a stream does not require a mechanical license was recently rejected in court, Spotify can still continue asserting that argument going forward. If a legal decision in Spotify’s favor set a precedent on this issue, it could mean massive losses of income to songwriters, music publishers, and the music industry as a whole. While there are several theories as to why Spotify has taken this approach, the simplest answer seems the most obvious – Spotify doesn’t want to pay. The scariest part of this whole situation is that with Spotify’s massive amount of funds, it has the power to continue litigating this issue with efforts to change the laws and practices of the industry to conform to its unwillingness to pay for the music it uses. It is unacceptable that Spotify has built its entire business on the usage of music content, but yet continually tries to get out of paying for the very content that sustains its customer base. Without music, there is no Spotify and it’s time Spotify stopped making excuses and started to value the music that built its business.

*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).

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Sync Licenses Explained!

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Categories: Articles, Copyright, Film, Music Contracts, Music Industry, Music Publishing, Performance, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

A synchronization license is a license to use a composition in an audiovisual production. (A master use license is a synchronization license for the master recording.) A placement can be quite lucrative, but it’s important to understand how your music is being used. Here’s a basic overview of the main points in a synchronization license:

  1. Licensor

The licensor is the person who owns the music and giving permission for it to be used in the audiovisual project. The music publisher owns the composition and the record label owns the master recording. Independent musicians might own both.

The licensor’s information will also include the licensor’s ownership share of the composition or master that is the subject of the license. Also, the writers of the composition and their performance rights organization information will be listed.

  1. Licensee

This is the person receiving the permission to use the music in the audiovisual project. This is usually a production company, studio, or network.

  1. Timing

Timing is how much of the song will be used in the audiovisual project; for example, it could be thirty seconds or an entire song.

  1. Type of Use

This is basically how the music will be used. There are many different terms thrown around to designate the type of use, but without using a bunch of industry-specific terms, examples would be playing in the background, with or without people talking over it; a live performance; played on a radio; an opening or closing theme; or in the credits.

  1. Territory

The territory covers where in the world can the music be used within the audiovisual project. This might be worldwide, for a specific country, or even a local area.

  1. Term

The term is for how long can the music be used within the audiovisual project. This might be in perpetuity or only for a specific length of time.

  1. Media

This is a big talking point because it includes the types of media in which the music can be used as part of the audiovisual project. This can include TV (and what types of channels), theatrical (movie theatres), film festivals, the Internet, all of these, or only some of these. The rights section also includes language about whether the music can only be used in the specific project itself, or also whether it can be included in promotions for the projects and if so, what types of promotions.

  1. Money

Everyone’s favorite topic, i.e. the fee you are getting paid for the use of your music!  This is going to be a negotiated fee based on the type of use, popularity of the song, and other factors.

  1. Direct Performance

Direct performance rights are not present in every sync license, but are being seen more frequently. Basically, some licensees want to pay a buy-out fee of your performance royalties in an effort to move away from paying blanket license fees to the performance rights organizations (who would normally collect your performance royalties and pay those to you). One problem with this is that the licensees still have their blanket licenses with the performance rights organizations, so a buyout of performance royalties would leave you out of any income generated from performances over the amount of the buyout.

  1. Some legal language

This is for your attorney to handle!

 

One should always have an experienced attorney look over any license you receive. Contact me if you have a license you need reviewed.

 

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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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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The Most Common Music Publishing Agreements Explained!

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Categories: Articles, Music Contracts, Music Industry, Music Publishing, Royalties, Videos, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

All music starts with a composition, which is one of the reasons why I love the area of music publishing. Despite the low streaming rates, there is still a lot of activity and money to be made on the publishing side of music. Whether you are a writer signing with a music publisher, or you self-publish your own music, here are the some typical music publishing contracts:

Songwriter Agreement

A Songwriter Agreement usually involves a writer transferring 100% of the copyrights to the song(s) in your catalogue and/or written during the term to a music publisher and a 50/50 income split between the publisher and the writer. While these were some of the most common agreements 60 years ago and are still used today, they aren’t entered into as often because many writers value owning their content more in today’s music market.

Co-Publishing Agreement

A Co-Publishing Agreement is very common today and involves a writer transferring 50% of the copyrights to the song(s) to the music publishers and an income split of 75/25 where 75% goes to the writer and 25% goes to the publisher.

Administration Agreement

An Administration Agreement is also very popular today and involves no copyright transfer—the publisher administers (handles licenses, tracks royalties, etc.) without owning copyright. This agreement includes a 90/10 income split where 90% goes to the writer and 10% goes to the publisher as a fee for doing the administration.

Songwriter Split Agreement

A Songwriter Split Agreement is something that always needs to be completed when co-writing songs with others. It is essential to minimize disputes between co-writers, but is also usually required by publishing companies, whether you are your own publisher, administer for co-writers or other unrelated writers, or are signed as a writer to a music publishing company.  A Songwriter Split Agreement can be custom drafted, or one can use a template from Indie Artist Resource.

Licensing/Placement Agreement

Many “placement houses” or “pitching companies” that have traditionally just focused on pitching music for placement in TV and film are now getting into the publishing game. The copyright transfer and income splits tend to vary on these deals, and I have seen a lot of them called “Co-Publishing Agreements” that really do not follow the traditional co-publishing model. These can get tricky because of term variations as well as retitling and other practices.

 

Music publishing is one of the most complicated areas of the music business and as you may have gleaned from this article, the associated agreements and principles can get extremely complicated. Any artists/writers should have an experienced music attorney draft their music publishing agreements agreements for them if they are administering their own publishing or publishing for others. An experienced music attorney is also invaluable to review and negotiate any publishing agreements or licenses presented writers, as an experienced music attorney knows what the terms and custom and practice should be, as well as has the training to catch problems or unfair clauses that writers may miss.

I regularly draft, review, and negotiate all of these types of agreements, so please don’t hesitate to contact me if I can handle one or more of these agreements on your behalf.

Protecting and Profiting from Your Original Music - Erin M. Jacobson, Esq. (Indie Artist Resource)

If you are interested in starting your own music publishing company and administering your own publishing or publishing for other writers, download Erin’s video on Protecting and Profiting from Your Original Music where she explains:

  • how to set-up your own music publishing company for your original music
  • the basics of running your publishing company
  • the different royalty streams and publishing contracts you need to know
  • what agreements you NEED to have in place
  • how to protect your music the RIGHT way
  • requirements for collecting your royalty payments
  • the different ways of exploiting your music to earn money from it

Click here to download the video now.

 

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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A Day at NAMM with Erin M. Jacobson

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

 

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.

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Music Industry Cases to Watch in 2017

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Categories: Articles, Copyright, Infringement, Law, Legal Disputes, Legal Issues, Music Industry, Performance, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

by:  Erin M. Jacobson, Esq.

This article was previously published on Forbes.com.

Following are the top music legal cases to watch in 2017, what to expect, and how they could affect the industry as a whole.

Global Music Rights v. The Radio Music Licensing Commission (and The Radio Music Licensing Commission v. Global Music Rights)

Background: As explained here, The Radio Music Licensing Commission (“”RMLC”) sued performance rights organization Global Music Rights (“GMR”) on anti-trust grounds for creating an artificial monopoly over and charging “exorbitant” licensing fees for works in its repertoire. In a separate and non-retaliatory suit (and explained here), GMR sued the RMLC claiming that the RMLC’s committee of radio stations seeks to discourage competition amongst these stations with the common goal of keeping payments to songwriters and music publishers artificially low and using its collective power to do so.

What you might expect: The parties will probably settle, as the implementation of judicial rate supervision would significantly curb GMR’s objectives in negotiating higher rates for its writers. If GMR had to submit to judicial rate setting proceedings, it is probable Irving Azoff would find a way around the regulations to command higher compensation for GMR writers.

How it could affect the industry: If radio does not want to pay GMR’s rates, then radio stations can refuse to play works in the GMR repertoire. As a result, these artists would lose the promotion and performance income provided by radio airplay. It could also affect writers belonging to other performance rights organizations that have co-written songs with GMR writers or covered songs by GMR writers.  The band Anthrax has already issued an open letter to Irving Azoff seeking to have its name disassociated with GMR, as the band is not a GMR client but is listed in the GMR repertoire because Anthrax covered “Phantom Lord” by Metallica (a GMR client) early in Anthrax’s career. Anthrax is afraid this association could stop radio stations from playing all Anthrax songs.

However, the radio stations themselves would also suffer because it would harm stations’ popularity with listeners if stations cannot play the music their listeners want to hear, resulting in a significant loss of advertising revenue.

The Turtles v. SiriusXM

Background: Flo & Eddie of The Turtles sued SiriusXM for playing their sound recordings without paying royalties. In the United States, all sound recordings made after February 15, 1972 are protected by federal copyright law. Prior to that date, sound recordings only had protection under state laws. In 1995, sound recordings were granted a digital performance right to earn royalties when played on digital media like satellite radio or streamed online. This case raised the question as to whether all sound recordings were entitled to the performance right or only those recorded post-1972. Flo & Eddie have been successful in several states to champion the right to royalties for owners of older recordings, but a New York appeals court just ruled against themsaying that the pre-1972 recordings are only entitled to protection provided by state laws.

What you might expect:  The outcome could go either way here, but its definitely one to watch. A settlement might also be possible for those involved in the lawsuit, however, a settlement would not dictate the future of royalties for other pre-1972 recordings not included in this class action suit.

How it could affect the industry: If it is found that pre-1972 sound recordings are entitled to a digital performance royalty, then owners of these recordings and the artists who recorded them would be entitled to an income stream much needed for older catalogues that do not currently make much money in terms of sales or other uses. Satellite radio and other Internet services would have to pay an appropriate amount of royalties, which seems doable for a company like SiriusXM worth billions of dollars, but potentially less so for smaller providers. If the appeal is upheld, then satellite radio and Internet services would continue to play these early recordings without paying royalties to the owners and artists of these recordings and would further the financial hardships for older artists without current hits.

“Blurred Lines” v. “Got To Give It Up”

Background: Pharrell Williams and Robin Thicke wrote and recorded a song (“Blurred Lines”) that they, as stated in interviews, wanted to sound like Marvin Gaye’s “Got to Give It Up.” The Estate of Marvin Gaye sued Thicke and Williams for copyright infringement and the closely followed trial yielded a jury verdict in favor of the Gaye family, with a judgment ultimately set at $5.3 million plus future royalties. The verdict inspired a string of similar lawsuits, including one challenging the originality of “Stairway to Heaven.”

A major issue within the trial was whether to consider only the lead sheet (musical notes) deposited with the Copyright Office (protocol at the time “Got to Give It Up” was registered) and not the recording of the song. Insiders of the music community debate the finding of infringement when many of the actual notes were not an exact match in both compositions versus looking at patterns and other music elements that were similar and repeated within both songs.

The case is now up for appeal. Thicke and Williams’ attorney claims that the trial court’s verdict will “chill” creativity. The attorney for the Gaye family argues in his appellate brief that the copyright for “Got to Give It Up” is not “thin,” and states a reminder that the
test for infringement is substantial
similarity and not virtual identity.

What you might expect: This case will once again be closely followed, but the verdict cannot be predicted at this time. A settlement is doubtful because the stakes have become too high for both sides.  This case has become much bigger than just the two songs involved.

How it could affect the industry: The impact of this decision could set an important precedent. If Thicke and Williams win, it would open the door to frequent usage of elements from older songs with little recourse for the copyright owners of the original songs. If the Gaye family wins, it would probably inspire even more lawsuits for infringement. Regardless of whichever party wins, this case may influence all future copyright infringement lawsuits involving music, as it may dictate which sources (lead sheets, recordings, etc.) can be considered in a copyright infringement suit and based on what is included in those sources, which elements of a composition can be protected and/or infringed.

The Department of Justice v. ASCAP and BMI

Background: Performance rights organizations ASCAP and BMI asked the Department of Justice (which oversees the consent decrees governing ASCAP and BMI) to reform the decrees based on today’s digital age. Music publishers asked for the ability to negotiate directly with companies licensing music for digital uses. The Department of Justice ruled against all that was asked for by the music community and decided to implement a model of 100% licensing, which mandates that a performance rights organization can only license rights to perform a work if the organization controls 100% of that work.

BMI appealed the decision and got an immediate verdict in BMI’s favor allowing the industry practice of fractional licensing to continue. The Department of Justice has appealed BMI’s victory and that appeal is currently pending.

What you might expect: This is going to be an ongoing fight to the bitter end.

How it could affect the industry: As explained in more detail here, a ruling in favor of the Department of Justice would force the entire music industry to completely change the way it does business, render hundreds of thousands of works to be unlicensable by ASCAP and BMI, place incredible burdens on composition owners to track performances, potentially require hundreds of thousands of contracts to be amended, and would also affect the music industry throughout the world due to the reciprocal agreements ASCAP and BMI have with performance rights societies in other countries.

*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 catalogues, 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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