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Tag Archives: music attorney los angeles

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June Music Legal and Business Roundup

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

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

 

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

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

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

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

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Key Clauses in Management Agreements Part 4: Key Man Clauses

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

Erin M. Jacobson, Esq. - Key Man ClauseIn the last set of articles regarding management agreements, I have explained the term, commissions, and sunset commissions. In this article, I will explain what is known in the industry as the “key man clause.”

A good music attorney representing the artist will make sure there is a “key man clause” in the artist’s management agreement.

What happens if you sign with a management company and then your manager leaves the company? What if the other people at the company don’t understand your artistic vision or image, don’t jive with your personality, and/or don’t advocate for your career? I bet you’d wish you could continue working with the particular manager that has left the company, right? Right.

The scenario described in the paragraph above is exactly what the key man clause protects against. While it won’t be labeled as a “key man clause,” a good music attorney representing the artist will make sure that there is language in the agreement ensuring that if the artist’s specific manager leaves the company, the artist has the right to also leave the company and follow the manager wherever (s)he goes.

This language does not obligate the artist to leave the management company. If the artist feels there are others at the company who can manage the artist’s career just as well (or maybe better) than the leaving manager, then the artist is free to stay with the company. However, the artist does have the option to leave and follow the leaving manager at that point to protect the artist against being stuck in a management arrangement without someone that advocates for the artist.

Many management agreements don’t include this language and many artists (and some attorneys!) don’t know to ask for it.

If you need a management agreement drafted or reviewed click here to contact me now.

If you need a DIY solution in the form of a template agreement, get one from Indie Artist Resource ( CA residents click here  and non-CA residents click here).

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Are You Sure You Own Your Masters?

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

Erin M. Jacobson, Esq. - Master Ownership

What are Masters?

Throughout the music business, master recordings or “masters” are typically regarded as to as the original or official recording of a performance fixed in a tangible medium like tape, ProTools file, or even mp3, from which copies can be made. Masters are usually recorded in a recording studio or similar setup and these are the original tracks that get mixed and mastered (another sound processing step using the same term but with a different meaning than a master recording). Released recordings purchased on a CD or digital download are not masters, these physical goods are copies of the original masters.

Who Owns the Masters?

Common sense and matters of principle usually cause most independent artists to feel they should own their masters because they are the ones that contributed the performance and are often paying for the recordings. However, oftentimes other owners can be involved as master ownership can vary based on law as well as contract.

Some important aspects in copyright law refer to joint authorships and contributions to collective works. True joint authors that meet certain requirements will co-own a copyright and will be able to exercise the same rights in regard to that copyright. People other than the artist who were involved in the recording of the masters can make the argument that their contribution to the recording counts as a copyrightable contribution and thus makes them joint owners.

Contributors

Independent producers and engineers

These contributions can include influencing the sound whether by musical contribution or other direction, recording techniques, microphone placement, etc. Some producers and engineers are more involved than others. With engineers, it’s mostly about the recording and/or mixing techniques used. In the case of producers, they might just be advising on the sound and encouraging the best performances from the artist, or they might actually be playing instruments on the recordings or co-writing the songs. Producers and engineers may be able to argue partial master ownership based on their contributions, but many independent producers are also using contracts to ensure they own all or part of the masters in an attempt to build an income-producing catalog in addition to their producer fee and royalty. For some producers with great influence in the industry, this may be a requirement for artists to work with that producer, however, I always advise artists to make sure that giving up this ownership is actually worth the success this producer will add. Do not give up ownership (or at least not a large portion of it) without being certain that it will be worth it from a career standpoint.

Performing musicians

The contribution here is usually singing or playing instruments, but in either case it is considered a performance and the performer has rights in and to his or her performance. In some cases the vocalist or musician may simply be singing or playing exactly as instructed, and in some cases may be contributing riffs or other variances adding to the work. In either instance, just paying the vocalist or musician for services rendered may not prevent them from coming back to claim rights in their performances later. Having the vocalist or musician sign an agreement making sure they are giving up all rights to their performance and any contributions they have made is essential.

Recording Studios

Recording studios sometimes say that they own the masters and they will then release the ownership to the artist once the bill has been paid. Studios argue this because the masters were recorded on studio property, with studio equipment, and studio employees. While these arguments have been successful in past cases regarding photography, success of these arguments from a music industry standpoint would depend on the actual circumstances of the situation. While the studio does have an argument based on this contribution, these tactics serve mostly as a way for the studio to make sure it gets paid.

Most artists think because they may have paid these other people for their services, that their ownership rights are covered. However, paying for something doesn’t always mean ownership of it, especially under copyright law. Section 202 of Copyright Law says “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” So while you may have tape (or hard drive) in hand, that won’t stop someone from claiming an ownership stake of the copyright.

Record Labels

Usually, a recording agreement will provide that the label will own all master recordings recorded by the artist during the term of the agreement.

“Work made for hire” is another buzz word that artists (and labels) think applies because there was payment for services – and because mostly all recording agreements include this language. A work made for hire must be made by an employee under the scope of his or her employment, or in the case of independent contractors, must be specifically commissioned by the party seeking to own the work and fall within certain categories listed in the law. In most situations where artists are recording music, the parties involved (whether it be artist v. label, artist v. recording studio, artist v. producer/engineer, etc.) are independent contractors, so the employee provision will not apply. Sound recordings are also not included in the specific categories that copyright law lists as eligible for work made for hire status. Most labels make the argument that record albums are collective works (one of the allowed work made for hire categories), but this ambiguity leaves masters open for joint ownership without a proper copyright assignment.

In the Real World

A recent example occurred where A&M Records sued a recording studio claiming one of the studio owners had rights to the master recordings for the album “Temple of the Dog”, by the band of the same name, a side project between musicians Chris Cornell (Soundgarden, Audioslave) and Eddie Vedder (Pearl Jam). The label claimed it bought the masters and the rights from the studio and had an agreement to prove it, but those on the studio side said that not all owners of the studio had signed the agreement and the owner who had not signed the agreement had not given up his rights to the recordings. The lawsuit recently settled out of court, and the tapes were returned to Chris Cornell.

 

What should an artist to do to ensure master ownership?

Artist intending to fully own their masters should have written agreements in place with everyone involved in the recording process — the studio, engineers, producers, and hired musicians. These agreements should clearly state that the artist owns the masters and include language whereby these contributors will transfer their rights in the masters to the artist.

These agreements do involve many components and complex language, so they should be drafted by an experienced music attorney. If the artist’s financial situation prevents him from hiring an attorney (or other reasons prevent hiring an attorney), then DIY templates of the appropriate agreements can be downloaded from Indie Artist Resource (For IAR templates, CA residents click here and Non-CA residents click here).

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

This article was originally published on Sonicbids.com.

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Key Clauses in Management Agreements Part 3: Sunset Commissions

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

erin m jacobson, erin jacobson, music attorney, music lawyer, los angeles, music industry, managementLast time I discussed commissions in management agreements, but what may be a surprise is that management agreements often also have another kind of commission involved – one that remains after the term of the agreement is long over and the manager and artist are no longer working together.

Management agreements often have something we attorneys in the business call “sunset clauses,” which are provisions dictating that the artist must continue to pay a commission to the manager after the term of the agreement has ended. The purpose of this clause is actually for the benefit of the manager, to protect him or her from putting in a lot of work on certain projects, only to have the term end (or the agreement terminated) and not earn any commissions from those projects in which the manager invested a lot of time, effort, and possibly money. A sunset provision is not unfair in itself. If the manager has worked on certain projects for the artist, the manager should be able to share in the money earned from those projects. However like anything in life, there are limits and the sunset provision should be fair based on the circumstances.

Sunset commissions can range in the amount of the commission and the duration for which the sunset commission needs to be paid. Often management agreements dictate the sunset commission at the full rate (often 15- 20% as I explained here) and often lasting in perpetuity, which means forever. A good music attorney will negotiate this commission down both in percentage and in duration because an artist should not be paying a manager his/her full commission rate forever when the manager is not currently working for the artist anymore. Chances are the artist is probably also working with a new manager at this time and paying a full commission to that person as well. A good music attorney should also negotiate the circumstances around sunset provision and to what the commission applies.

The negotiated sunset commission may be a certain percentage for a certain period of years and then end, or start at a certain percentage for a certain period of time then reduce to a lower percentage for a certain period of time before finally ending. This is why it is called a sunset clause, because the commission tapers off and fades away just like an actual sunset. The percentage amounts, durations, and negotiated surrounding circumstances vary depending on the negotiating power of the parties and the attorneys involved, which is why you need a good music attorney experienced with negotiating management agreements.

The sunset clause often surprises artists because they aren’t familiar with the concept and become upset when they see it in the contract, or they sign a contract with a sunset provision that is longer and larger than it should be because the artist does not understand the agreement. I will reiterate, that the sunset itself provision is not unfair, and it is fair to compensate the manager on projects the manager helped to make a success. Again, having the contract drafted or reviewed by a good music lawyer experienced with management agreements is paramount to protecting one’s interests.

If you need a management agreement drafted or reviewed click here to contact me now.

If you need a DIY solution in the form of a template agreement, click here (non-CA residents click here).

 

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

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May Music Legal and Business Roundup

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

cowgirl, lasso, roundup

Image via freeimages.com

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

 

May was actually a little quiet on legal issues making the news.  However, the big news was really a tragic one.  The world lost another amazing artist, Prince.  His death was unexpected and shocked his fans and all of us in the industry.  A great artist who leaves a great legacy.

Here’s the other top stories in music legal and business:

 

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Erin M. Jacobson elected to the California Copyright Conference Board of Directors

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Categories: Copyright, Music Industry, Press, Tags: , , , , , , , , , , , , , , ,

I am pleased to announce that I have been elected to the Board of Directors of the California Copyright Conference.

The California Copyright Conference is a longstanding organization of music industry professionals focusing on copyright and other industry issues.  I am honored to have been chosen by my colleagues for this position.

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Key Clauses in Management Agreements Part 2: Commissions

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Categories: Articles, Business, Law, Management, Music, Music Contracts, Music Industry, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

erin m jacobson, erin jacobson, management commissions, management agreement, contract, music attorney, music lawyer, los angelesIn a recent article I explained the term of a management agreement, and in this article I’ll discuss management commissions; arguably the other most important clause of a management agreement.

The commission is the amount of money the artist will pay the manager under the contract. This is usually done as a percentage of the artist’s gross income. Standard percentages are usually 15-20%, with 15% being more common than 20%.  I have seen the percentages range from 10-25%, but with both extremes requiring special circumstances. Some more creative deals featuring other percentages have also crossed my desk, but again, these deals require other career aspects or services not typically included in management deals.

Aside from the percentage, it is important to know if the commission is being taken on gross or net income, and what gross or net income actually includes. Management agreements in the music industry typically have a list of exclusions on gross income that are specific to aspects of an artist’s career in the music business. This is different than management agreements in other areas of entertainment and in my experience, not all attorneys (even music attorneys) know what to exclude. It is also important to note when, if any, the manager is able to share in other income aside from the main commission.

It is also common for managers to take a commission after the term of the agreement has ended – and I’ll cover that in the next article on management agreements.

Contact me now to draft or review your management agreement.

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Ask a Music Lawyer: Is the Poor Man’s Copyright Enough to Protect Your Songs?

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

ESQ - poor mans copyrightIs the “Poor Man’s Copyright” enough to protect your songs? The short answer is no.

A work that meets the standards of originality is considered to be copyrighted under United States law when that work is “fixed in any tangible medium of expression,” (17 U.S. Code §102) which means that the work is put into a physical medium that can be reproduced, like writing it down, recording it on an audio or video recorder, etc.

What is the “Poor Man’s Copyright?”

The Poor’s Man’s Copyright is a practice where someone would take a work they had created, put it in an envelope, and mail it to himself via the United States Postal Service. Because the Postal Service would stamp the envelope with a postmark that had the date of mailing, it is argued that the date on the envelope proves that the work was created on or before that date. Otherwise, if the person hadn’t created it yet, how would he have mailed it to himself?

Poor Man’s Copyright 2.0*

Now with the Internet, the argument people try to present to me is that once a person posts something on the Internet, the timestamp of the posting is enough to show that the work was created on or before the date that it was posted online.

Why the Poor Man’s Copyright Isn’t Enough

There are a few reasons why the date or time stamp is not enough to protect a work. Firstly, while as a matter of logic the work had to have been created on or before it was mailed or posted, it doesn’t dictate when the work was actually created. For example, if Person A creates a work in January of a certain year, but does not mail or post it until September of that year, the date/time stamp Person A seeks to use as evidence will be in September. If Person B someone how access to Person A’s work, copies a portion of that work, and releases and/or registers his new work for copyright in July, then Person B’s work will have a date of July and Person A’s work will have a date of September without concrete proof that his work was actually written in January and before Person B’s work.

While it is true that Person A could show that Person B had access to their work, a date on a federal copyright registration certificate will almost always trump the date/time stamp and other date evidence. In addition, if Person A had registered for federal copyright protection, he could have indicated that the work was created in January even if he filed later. Furthermore, Person A could not even sue for infringement in federal court without having a federal copyright registration, leaving him without strong options to defend his work if it was infringed.

Why Register Your Work?

Federal copyright registration with the United States Copyright Office is always advisable because

  • A person cannot sue in federal court for copyright infringement without a federal registration.
  • The date of creation listed on a federal registration certificate is the strongest evidence a court will consider.
  • And federal registration provides additional benefits including but not limited to:
    1. Public notice of who owns the work;
    2. Listing in the United States Copyright Office’s online databases
    3. A legal presumption of ownership of the work in court (if certain conditions are met);
    4. Statutory damages and attorney’s fees (i.e. more money!) can be awarded to the winner of an infringement suit (if certain conditions are met).

A person can register his own works for copyright protection, and the online registration fee ranges from about $35-55. However, the terms and application can get complicated, especially for someone who has never filed a registration application before. You don’t want to later find out that your copyright is invalid, like Rick Ross just did.

Contact me to file the registration so it is done correctly the first time.

Registering works for federal copyright protection won’t prevent someone from infringing, but it does provide the strongest ammunition to protect creative works.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

This article was  originally posted on Sonicbids.com.

 

*Term coined by Erin M. Jacobson, Esq.

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New Video: How Much Do Artists Earn from Spotify?

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Categories: Royalties, Streaming, Videos, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,

I talk about the numbers.

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Is It Ever Worth It to Give Up Copyright Ownership of Your Songs? A Music Lawyer Explains.

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Categories: Articles, Business, Copyright, Legal Issues, Music Contracts, Music Industry, Tags: , , , , , , , , , , , , , , , , , ,

ESQ-givingupownershipRetaining ownership of the copyrights may be one of the most important decisions in an artist or writer’s music career. The person who owns the copyrights is the one with the control over how those works are used and also the one entitled to the money earned from those uses.  However, sometimes holding on too tightly to copyright ownership may prevent an artist or writer from taking advantage of opportunities to grow his or her career. The age-old adage that sometimes you have to give a little to get a little is true, but one needs to look at the opportunity cost and decide if giving something in a specific situation is worth what will potentially be gained.

Here are a few instances when giving up copyright ownership may be permissible.

1.  When it will make you a lot of money.

I’m not suggesting one should sell out just for a hefty paycheck, as sometimes dollar signs can’t substitute for artistic integrity.  I’ve also seen a lot of deals (especially in music library situations) where an artist or writer is being offered just a few hundred to a few thousand dollars in exchange for full or partial copyright ownership of a song that is really valuable to the artist or writer’s catalogue and career.  In this instance, such a small amount of money may not be worth the control and potential revenues lost later if the song does well in the marketplace.

On the other hand, I have some clients that write consistently and don’t care about giving up ownership as long these songs will churn out money, especially for placements.  They feel they can always write another song and are more concerned with making their music earn money for them over crafting songs to define their careers.

2.  When it will give you opportunities you wouldn’t get otherwise.

This is a situation where working with a certain company, or in many cases a certain producer, will be able to propel an artist’s career forward and help that artist achieve notoriety that wouldn’t be achieved otherwise.  As mentioned, a typical example of this is working with a big producer who is considered to be a hit-maker in the industry.  Often these producers don’t even co-write on the compositions, but granting them a percentage of songwriting ownership is mandatory for being able to work with them. After all, one could retain 100% of a song that most people will never hear, or one could give up 20% and have the song hit top ten, make a lot of money, garner name recognition, and bring the artist more opportunities than the artist would have gotten otherwise. In this case, it seems like a small trade-off and can be used as a means to an end – one might have to give up some ownership in the beginning of a career, but that could lead to a level of status in the industry where one can retain ownership and call the shots on future projects.

3.  When it is in line with your goals.

A new artist seeking a label deal, especially a major label deal, will not own their masters.  An up-and-coming writer wanting a publishing deal will have to give up all or part of songwriter ownership.  This is what comes with the territory of growing one’s career via the traditional industry structures.  It also makes sense from a business standpoint because a label or a publisher is not going to invest time and money into an artist or writer without getting something in return , and part of their return on investment is ownership of intellectual property.

However, if an artist has a vision of making a living off of music in a completely DIY structure, or that the freedom of complete control is more important than working with others more established in the industry, then sharing ownership might not be the right choice.

Longevity and sustainability in the music business, especially in its current state, comes with catalogue ownership.   Giving up ownership comes with some loss of control, but that loss of control may lead to notoriety and other opportunities putting one in a position of control higher than would have ever been achieved otherwise.

Whether to give up copyright ownership is a big decision, and it is one that should be discussed with the artist’s advisors. The choice right for one artist may not be right for another.  The decision will come down to what is right for each artist’s career.

If you need help deciding whether to give up copyright ownership in a deal you’ve been offered, book a consultation 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.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

This article was previously published on Sonicbids.com.

 

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