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The New Book from Erin M. Jacobson, Esq. is now available!

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

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.

Click here to purchase a PRINT copy.

Click here to purchase the EBOOK.

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HOW TO CONTINUE MAKING MONEY IN THE MUSIC BUSINESS DURING ISOLATION

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Categories: Articles, Music Industry, Music Libraries, Music Licensing, Music Publishing, Performance, Royalties, Social Media, Streaming, Synchs, Tags: , , , , , , , , , , , , , , , , ,

By: Erin M. Jacobson, Esq.

This article was previously published on Synchtank.com.

The COVID-19 pandemic is requiring people all over the world to adjust to new daily practices for public health and safety.  The pause on live events and productions has caused uncertainty and worry among many in the music community.  There is still business to do, but it will require a more creative approach.

Here is a list of ways for music creators and companies to continue doing business and earning money during this uncertain time.


For Music Creators:

1. Make time for registrations. If you haven’t registered for royalty collection services, like performance rights organizations, mechanical societies, Sound Exchange, etc., you are likely missing out on royalties owed to you if your music is being used in ways that trigger these royalties (streaming, performances in audiovisual works, etc.). If you are registered with these companies, but haven’t registered your individual songs, then you are still likely missing out on royalties. Similarly, if you know your registrations are incorrect, then – you guessed it – you are likely missing out on royalties. Quarantine or not, pandemic or not, people are still streaming music, and music is still being performed on TV and online, which means music is generating royalties. When income in other areas has decreased, royalty income can be of great help.  Now is the time to get caught up and get royalty income flowing in. If you need assistance with preparing these registrations, hire an experienced music industry professional to prepare and submit them.

2. Protect Yourself. If you haven’t registered your works for copyright, now is a good time to complete your applications to reap the benefits copyright registration provides. If you’ve been meaning to get contracts together with your collaborators to protect your work, now is a good time for that too. Again, if you need assistance with protecting your work in these ways, hire an experienced music attorney to handle these matters.

3. Get creative! You’ve likely got more time on your hands right now – use some of it to create new music! You might start writing for your next album, or maybe for libraries or placements. If you are worried about the current state of the world, channel that worry into your music as a healthy outlet for your stress. If you want to make a positive difference, write songs to uplift others in this uncertain time.

4. Collaborate (virtually). The beauty of technology means you can still collaborate with others during social isolation. Before computers, some songwriters would snail mail cassette tapes to each other to work on songs together over long distances. Now, you can send mp3, ProTools, or other files to each other via email or file transfer websites (or keep them in a shared cloud drive) to work with collaborators you already know. You can also use video chat programs such as Zoom or FaceTime to collaborate in real time. If you don’t have anyone to collaborate with, you can find people by using gig sites such as Airgigs.com.

5. Get social (from a distance)! Many consumers are spending more time on social media, YouTube, and apps like TikTok. Take some of your newly created works and post them to social platforms so that people staying at home have new music to enjoy. Maybe one of your songs about hope will resonate with people everywhere and gain you new fans. If you are a performing artist, you could also do live virtual performances for or virtual video chats with your fans. Fans would love the opportunity to connect with their favorite artists in a way they cannot under normal circumstances.

6. Check for aid. If you are really in dire straits, some organizations have put together funds to help the music community in this time of need. Here is a list of many national and state-based funds in the United States. Here’s a list for anyone affected in Canada, and the PRS Foundation in the UK also has a fund. Many companies, like Sony Music, also have established their own assistance funds for the music community.

For Music Companies:

As mentioned above, this is a good time to catch up on registrations, paperwork, or anything you’ve been putting off that will help bring in additional money. Not only will companies help themselves by doing this, but will also help their employees and their families, and their songwriters, composers, artists, and their families. Some companies, at least in the United States, may also be eligible for government assistance or deferment of payroll taxes, and should check with their financial advisors for options.

Keep business going as much as possible.

  • Do business virtually as much as possible. Set up employees to work from home if work-from-home practices have not already been established.
  • For publishers that usually set up co-writing sessions for writers, don’t stop the sessions, set up virtual co-writing sessions for them instead.
  • For companies needing cuts, keep sending songs to producers and artists to record at a future time.
  • Set up online showcases for songwriters and artists (I’ve already been invited to a few of these virtual showcases by established music companies).
  • For licensing companies or publishers who seek out placements, keep sending music to music supervisors, as it is likely that supervisors may still be looking for music to use for productions currently on hold, and can thereby make their choices and complete the licensing paperwork in advance.
  • Licensing companies and publishers can also keep building catalogue by signing new writers and composers. Not only will this practice make for a more robust catalogue for placements once films and show resume production, but it will also boost morale and provide hope to music creators during this period.
  • Companies can also focus on projects that may not require in-person productions, for example, many game developers may be working from home so new games will need music. Maybe there are new online shows or virtual shows that need music.
  • Get creative with who might need music in a virtual world and how to get it to them.

For everyone, follow the CDC guidelines and keep yourself and those around you safe by staying home except for essentials, practicing social distancing when you do have to go out, and washing your hands well and often.  You need to stay healthy to continue business.  Also, focus on hope.  Although we don’t know exactly when, this will pass and the music industry will survive.

Stay safe and be well.

This article does not constitute legal (or medical) advice.  Any advertisement is general in nature and not directed toward any particular person.

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The Secret to Licensing Your Music

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Categories: Uncategorized, Tags: , , , , , , , , , , , , , , , ,

By: Erin M. Jacobson, Esq.

This article was previously published on Synchtank.com.

Licensing music is one of the more lucrative areas of the music business and I often get asked how one can encourage productions to license one’s music. 

There are many factors that go into choosing a piece of music to license.  For example, some creative factors include the song itself, the genre, the artist who recorded the particular song, the time period from which the music is from, the nature of the scene or commercial that is using the music, the product, the mood that the producers want to evoke, and other factors.  From a legal perspective, factors that can influence whether a piece of music is licensed include the territory in which the music is available to be licensed, the length of time the music will be used, in which media the music will be used, whether promotional uses are allowed and what type, and more.

However, there is one factor that when all other things remain equal could win the license for one piece of music over another.

Without further ado, the secret to getting music licensed is…

Make the music easy to license!

Note that just because one’s music is easy to license does not guarantee someone will license it.  However, what it does mean is that if a production is interested in licensing a particular piece of music that proves difficult and time-consuming to license, the production will very often abandon efforts to try to license the difficult piece of music and re-direct its efforts to another piece of music that is easier to license.  This means that the owner of the piece of music that is difficult to license will lose that license and the income generated from it, and another rights’ owner now has an opportunity to get that license, and the income from it.

Here are some examples I’ve encountered where the music was not easy to license:

In one example, a new artist wanted a synchronization license for his cover version of a particular song.  There were two writers of the composition, and two publishers from whom to seek a license.  One publisher (“Publisher 1”), a major publisher, was responsive and regularly communicated in regard to approval status.  The other publisher (“Publisher 2”), a lesser-known indie publisher who actually has a catalogue of some substantial songs, was completely non-responsive.  This publisher ignored multiple emails and voicemails with the license request, including ignoring communication from Publisher 1, its co-publisher. 

I am a big fan of publishers in general, and especially those that do their job well.  However, in this case, Publisher 2 was actually losing a license for its writer by completely ignoring the license requests.  It stands to reason that if Publisher 2 ignored the request in this example, it is very likely that Publisher 2 has ignored other requests as well.  This means that Publisher 2 is actively losing money for its writer, and also creating a reputation whereby potential licensees will purposely avoid using songs administered by Publisher 2 because of Publisher 2’s difficulty.  This, in turn, will lose even more future licenses and money for both Publisher 2 and its writer. 

In another example, a successful podcast wanted to license a particular song for its intro and outro music.  The publisher responded quickly with a reasonable quote.  The master owner was in Europe and I contacted the office in the appropriate country.  That office advised me to contact and obtain the license through a particular society.  This procedure didn’t sound correct to me, but I contacted the society per the label’s request.  After several attempts at obtaining a response from this particular society, the society informed me that the society only licenses for its particular country, and only for a podcaster’s own website, not for the major podcast distribution channels like iTunes.  As this confirmed my appraisal of the situation, I contacted the label again with this information.  As of the date of this writing, the label has not responded.

A third example involves clearing music for a video game on a past project.  One particular composition was identified as being owned by a particular company.  After contacting the company several times and the company initially confirming it could issue the license, the company then said it could not issue a worldwide license, as it turns out it was only the sub-publisher for a particular territory.  Our team then asked this company to direct us to the company that could issue the worldwide license.  The sub-publisher’s response was “we don’t know.”  A sub-publisher is responsible for accounting to the rights’ owner that is the main publisher, who in this case would be the company able to issue the worldwide license.  The sub-publisher seemingly did not know who they were representing or to which company they were accounting!  Thankfully, there was a happy ending as we independently found the worldwide licensor and licensed the song.

In order to avoid making the same mistakes as the rights’ owners described above, here are a few tips to make music easy (or easier) to license:

  1. Make sure the registration data is correct in all places where someone would seek information for the licensing contact.
  2. Have a one-stop license, if possible.   A one-stop availability means a person or company owns or has the right to license both the composition and master.  This is not always possible, especially with major releases, so in that case, see #3.
  3. Know who the proper licensing parties are (including co-owners) and be able to assist in the process, if needed.
  4. Respond to license requests!

While the four steps outlined above cannot ensure a particular piece of music will be chosen from a creative standpoint, they will assist in the licensing process when the creative interest is already present.  Licensing is a very active area and it is possible to stay in and win at the licensing game if you play it correctly.

Note: This article does not constitute legal advice.

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WILL CALIFORNIA’S MUSIC INDUSTRY SURVIVE AB5?

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Categories: Uncategorized, Tags: , , , , , , , , , , , , , ,

By: Erin M. Jacobson, Esq.

This article was previously published on Synchtank.com.

The music industry is comprised of very specific customs and practices as to how business is done. The music industry functions in its own world, and its customs and practices are foreign to and widely misunderstood by most people not working in the music business. Therefore, when those outside the music industry place restrictions on how music’s business can be carried out, the results can be disastrous.

Case in point, the new AB5 law in California. AB5 stands for Assembly Bill 5. It was introduced at the end of 2019 and went into effect on January 1, 2020. While this is a California law, it can affect the music business on a global scale.

Summary of the Law

AB5 was enacted with the aim of equalizing benefits and fair treatment for workers, especially those with part-time gigs, like Uber drivers. The intention of the bill was to make sure these types of workers also received the benefits of full-time employees, such as health care, and also to enforce businesses to pay employment taxes to the state instead of circumventing those taxes by classifying all of its workers as independent contractors.

AB5 takes the decision of a recent California Supreme Court case [1] and enacts it into law. AB5 dictates a new test for determining who is an employee versus who is an independent contractor. The determination of whether a worker is an independent contractor is now subject to what is called the “ABC Test”. In order for a person to be considered an independent contractor rather than an employee, the hiring entity must show all of the following:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. [2]
  2. The person performs work that is outside the usual course of the hiring entity’s business. [3]
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature that is involved in the work performed. [4]

Here’s the translation in plain English:

Part A basically means that the worker is hired for a job and determines how he or she will do the work. This has to be shown in the written agreement between the hiring entity and the worker, and also has to be true in practice. For example, when one hires a bookkeeper, the bookkeeper will determine when and how he or she works, and how the work gets done. This will also be reflected in the agreement between the hiring entity and the bookkeeper. The hiring person is not going to tell the bookkeeper how to perform the work of a bookkeeper, nor is one business owner going to tell another business owner how and when to conduct business.

Part B means that the worker is performing work that is not the same business as the hiring entity. Again, using the bookkeeper example, if a musician hires a bookkeeper, the bookkeeper does very different work than the musician.

Part C means that the worker has his or her own separate business doing the type of work the hiring entity hired the worker to perform. Staying with the bookkeeper example, the bookkeeper would have his or her own bookkeeping business and perform bookkeeping work for other clients.

By default, workers are now considered employees unless the hiring entity can show the worker is an independent contractor. There are many exceptions to this rule, such as doctors, lawyers, accountants, graphic designers, repossession people, and more. However, there was no exception granted for those who work in the music business.

How Does This Affect the Music Industry?

Because there is no exception for the music industry, music professionals are subject to this law.

This means that a musician is now an employer when he/she hires:

  • another musician to play in that musician’s band (even if it’s just for one show instead of an on-going arrangement);
  • someone to perform on a record (even as a one-off, work for hire session);
  • a producer (or beatmaker) for their record
  • and more!

If that musician is an employer, then he or she would be required to take out withholding tax from the workers’ pay, pay payroll taxes to the state, potentially provide health care benefits, file all appropriate tax forms, etc. This could be crippling to independent musicians, both financially and administratively.

What About Companies?

Companies are not exempt from these requirements either. By contract and in practice, artists have always been considered independent contractors in relation to record labels, and this practice continues today. Songwriters have been considered independent contractors to music publishers, as composers have been to music libraries. This could all potentially change if AB5 is enforced based on a literal interpretation of the ABC Test. It could force companies to completely change the way they do business, which may be at the detriment of musicians. It is possible that companies like record labels will make sure their contracts are issued only from their offices outside of California.

It also may force many in the music industry to move their business outside of California where the “gig” way of doing business continues. This would be a blow to the California economy both from losing the revenue from the music industry, as well as the taxes from all the musicians and companies that would move out of California to continue their current ways of doing business.  AB5 may also affect independent film companies and non-union film projects. As the California economy relies heavily on the entertainment industry, this surely would greatly reduce the benefits legislators hoped AB5 would bring to California by increased income from employment taxes.

What Do We Do Next?

No one knows. The law was drafted so broadly and is so new, that it is completely untested. No one really knows how to proceed and how this law will be applied in practice.

Some in the industry and online have tried to think of different ideas to continue doing business as usual without violating the law, but none seem to have a viable solution.There have also been lawsuits filed against AB5 and actions to move toward an appeal. One website (which is really part of one California Assembly candidate’s website for his election campaign) [5] allows the public to post their stories of how AB5 has or will affect their careers.

What most people are doing now is trying to proceed with caution and stay up to date with any changes. It’s a very uncertain time, but one can hope for a favorable resolution.

[1] Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, 4 Cal.5th 903 (2018).

[2] Assemb. B. 5, 2019 Leg.,  Chapter 296, Statutes of 2019 (Ca. 2019).

[3] Id.

[4] Id.

[5] This campaign website is provided for informational purposes only. It is not an endorsement by Erin M. Jacobson, Esq. of any candidate or cause.

Note: This article does not constitute legal advice.

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2019 LEGAL ROUND-UP – AND WHAT IT MEANS FOR THE MUSIC INDUSTRY IN 2020

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

By:  Erin M. Jacobson, Esq.   This article was originally published on Synchtank’s Synchblog.   It’s been an interesting year in the music legal field. Some outcomes were positive steps forward for the music industry, and some, well, not so much. Here’s a recap of some of the most talked-about legal happenings of 2019, and what they could mean for 2020.

Katy Perry’s “Dark Horse” Infringement Lawsuit

Background: Christian rapper Marcus Gray, professionally known as “Flame”, sued Katy Perry and her collaborators stating that Perry’s song “Dark Horse” infringed on his song, “Joyful Noise”. Perry and her team testified that they had never heard “Joyful Noise” and therefore could not have copied a song of which they had no knowledge. The actual musical evidence was lacking in similarity as well.  However, the jury decided against Perry and her team because (1) the songs have a similar sound repeated in them, (2) “Joyful Noise” had been nominated for a Grammy in the Christian music category, and (3) Katy Perry had once been a Christian artist before she hit pop superstardom. Perry has appealed the lawsuit and the appeal is currently pending. What it Means: Copyright infringement lawsuits require two elements to be proved, substantial similarity and access. The two works must show enough similarity that one could attest one creator had copied the other, and the infringing party must have had access to, i.e. heard, the allegedly infringed song. Access is often proven by performance of the infringed song on the radio, a producer who worked with the both artists or their team sharing music with the infringing artist, or other similar manner of delivery. Perry and her team were found guilty of infringement despite a lack of compelling evidence for both elements. Copyright law also allows for independent creation, meaning that two people can write songs that sound similar, despite never having heard each other’s songs. However, it seems this tenant has been forgotten in this and many other recent infringement cases. What to Look for in 2020: While there are definitely legitimate cases of infringement, verdicts like this will encourage the filing of more frivolous cases. Many artists are already afraid that anything they create will be taken advantage of by opportunistic people looking to boost their own fame by capitalizing on the publicity of someone else’s creation. Hopefully, we will see this verdict overturned on appeal.  

Led Zeppelin “Stairway to Heaven” Copyright Lawsuit

Background: The trustee for Randy California, the late lead singer of the band Spirit, sued Robert Plant and Jimmy Page, saying “Stairway to Heaven” infringed on Spirit’s composition, “Taurus”. Despite the fact both of these songs are decades old, the case went to trial.  In this case, there was access (Spirit had toured with Led Zeppelin in the late 1960s) and some similarity, but no infringement was found. The lawyer for California’s estate appealed, and the new decision is currently pending. What It Means: Those in the music industry agree this verdict was correct. While California could have sued during his lifetime, he chose not to do so, and the evidence here was not compelling enough to prove the infringement claim. What to Look for in 2020: Hopefully, the original decision will be upheld. The industry needs some precedent for correct rulings in copyright infringement cases.  

Spotify’s Appeal of the Mechanical Royalty Rate Increase

Background: Last year, the Copyright Royalty Board (“CRB”) judges decided that music publishers and songwriters will get an increase on their mechanical royalty rates. The timing of this proceeding happened to coincide with the efforts of the music industry to pass the Music Modernization Act (the “MMA”). The digital service providers (“DSPs”), including Spotify, Pandora, Google, Apple, etc. rallied in cooperation with the music industry to pass the MMA. After the MMA was passed, the DSPs (except Apple) appealed the CRB’s decision to increase mechanical royalties.  The appeal is pending. What It Means: The CRB decision provides for a 44% increase in mechanical royalties to songwriters and music publishers, with incremental raises from the current rates until the 44% is reached in 2022. The DSPs supported the passage of the MMA to gain immunity for being sued for copyright infringement for failure to license and pay for all of the music streamed on their services. Once achieving that immunity, they appealed the CRB decision to try to avoid paying fair rates to songwriters. What to Look for in 2020: CRB decisions are historically difficult to overturn, so hopefully the music industry will receive the new rates it was promised. Despite the goliath size and bank accounts of the DSPs, they need to realize they cannot push the music industry around and must pay fairly for the content on which many of the them have built their businesses.  

Passage of the Music Modernization Act

Background: The Music Modernization Act passed in October of 2018, which promised more streamlined licensing procedures for music on streaming services, a new, centralized registration database, and hopefully a better system for creators and rights owners to be paid streaming royalties. 2019 has been all about actually turning these promises into reality. The Music Licensing Collective board was elected to oversee the operations of this new structure, they negotiated the funding for the database with the DSPs, and choose a vendor to build the infrastructure and supply the data (recently revealed to be The Harry Fox Agency). What It Means: There will be a lot of changes in data practice, and a lot of work for creators and rights’ owners to learn a new system and register their works with the new database. What to Look for in 2020: The database is slated to roll out in beta-mode, with it planned to be fully operational by 2021.  2020 will involve a lot of data uploads.  

Taylor Swift’s Master Recordings Dispute

Background: Taylor Swift hit it big while signed to Big Machine Records, and then moved on to Universal Music Group.  Big Machine decided to sell its catalogue of masters to Scooter Braun, backed by some investment funds. Swift and Braun have a longstanding personal beef, and when the sale occurred, Swift took to social media to express her horror at her nemesis owning her masters. Swift stated she was not given the opportunity to buy her masters back. The parties engaged in a public back-and-forth. Taylor announced she will re-record all of her old masters in 2020 once her re-recording restriction from her Big Machine contract has expired. Later, Swift said Braun was blocking her from performing her older songs on the American Music Awards and using the older music in an upcoming Netflix documentary. Another public battle ensued, with Swift ultimately being able to perform as planned.  Now stories have emerged that Swift is denying all licensing requests for her music until she is able to re-record her masters in 2020 and then will resume licensing with masters she owns. What It Means: Regarding the American Music Awards performance, this is the first time that a record label has publicly argued that a recorded television performance violates a contractual re-recording restriction, when normally that restriction is limited to recording new audio masters. When Swift does re-record her masters, it could negatively impact Braun’s recoupment of his investment. This dispute has opened the eyes of many artists as to what they may give up when signing a record deal, and there is a growing trend toward artists seeking to retain master ownership. What to Look for in 2020: Swift will most likely continue with her plan to re-record her masters. More public mudslinging may ensue. Artists overall will increasingly seek opportunities that allow them to retain master ownership.   Overall, 2020 will see a lot of changes in the music industry. Hopefully, the results will be just as exciting as the anticipation for their arrival.    

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Erin M. Jacobson interviewed on the BBC

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

Erin M. Jacobson, Esq. was interviewed on the BBC World Service show, Business Daily.

The topic of the overall segment was corporate control over creative works, but Erin’s interview was focused on explaining the dispute over Taylor Swift’s master recordings, and begins at about 12:50.

You can listen to the interview here.

 

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Erin M. Jacobson, Esq. Quoted Again in US Weekly

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

Erin M. Jacobson has been quoted again in US Weekly magazine regarding further developments in the Taylor Swift masters dispute.

Click here to read the article.

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Erin M. Jacobson, Esq. Explains Taylor Swift’s Music Drama

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Categories: Articles, Legal Disputes, Legal Issues, Music Contracts, Music Industry, Music Publishing, Record Labels, Tags: , , , , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson is interviewed in US Weekly magazine to explain how Big Machine is blocking Taylor Swift from performing her old songs.

Read the article here:  https://www.usmagazine.com/celebrity-news/news/taylor-swifts-music-drama-explained-can-big-machine-block-her/ 

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Erin M. Jacobson, Esq. on Top of Mind, Sirius XM channel 143

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Categories: Interview, Music Catalogues, Music Industry, Music Licensing, Music Publishing, Record Labels, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

 

Erin was interviewed on the SiriusXM show, Top of Mind with Julie Rose regarding master ownership, re-recording, how artists are affected by this, and Taylor Swift.

You can stream here:

Or listen/download on iTunes Podcasts here.

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Erin M. Jacobson, Esq. on ABC’s Nightline

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Categories: Catalogue Acquisitions, Interview, Music Catalogues, Music Contracts, Music Industry, Record Labels, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson, Esq. appeared on the 7/1/19 episode of ABC’s Nightline to discuss the current news issue of Scooter Braun’s purchase of Big Machine Records (and Taylor Swift’s master recordings).  You can see Erin’s segments at 5:40 and 6:30.
Click here to watch!
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