Erin M. Jacobson, Esq. has once again been named a Super Lawyers Rising Star! Thank you to Super Lawyers for this great honor!
Erin was also recently quoted in an article for The Fader: “Here’s What You Need to Know About Sharing Lyrics Online”
The Truth About Legacy Catalogues and How to Avoid the Myths That Harm Them
By: Erin M. Jacobson, Esq.
This post was originally published on Billboard.com.
Now is the time when many legacy songwriters and their heirs have recaptured or are in the process of recapturing rights to their catalogues. However, the music business is not the same as it was 56 or 35 years ago when these songs were written. Many legacy songwriters and their heirs are misguided on how to proceed with these newly reacquired rights because the original advice they received does not reflect the nature of today’s music marketplace.
In this article, I’ve compiled seven myths that frequently circulate around and potentially harm legacy songwriters and their heirs, and have offered a new perspective based on my experience with making deals in this area and managing legacy catalogues.
Myth 1: All songs that were once famous still earn a lot of money.
Wrong! While some evergreen compositions are fortunate to continue earning substantial incomes, this is more the exception than the rule. Aside from a catalogue like that of The Beatles, there are usually only between one and five songs in a catalogue that still earn money, and in many cases those songs earn only a fraction of the income earned in their heyday. I can quote many examples of songs that hit the top 20 on the Billboard charts, some of which even No. 1, when released, but now earn less than $5,000 per year and are largely forgotten by anyone not around at the time of the song’s release.
Myth 2: Major publishers are the only companies with the power to exploit a catalogue.
This was true in the past, but it no longer the case. Unfortunately, many legacy songwriters and their heirs remain stuck on 30-year old advice from the family’s now-retired music lawyer. In today’s marketplace, major publishers have catalogues so large that they often cannot give personal attention to each individual composition within those catalogues. Because they also have major hits in demand, they tend to wait for licensing and other opportunities to come to them. The problem for older catalogues is twofold: (1) only a small number of these songs are still in the forefront of the public’s mind, and therefore the majority of songs from older catalogues are not requested, and (2) many companies are not willing to invest resources in pitching low-earning compositions. Therefore, these musical gems are neglected and remain lost in a company’s catalogue earning far less than their potential.
On the other hand, independent publishers with smaller catalogs are able to give each composition more personal attention and seek out the right opportunities for it. While an independent company might not be able to give as large of an advance, sale price, or signing bonus as a major, an indie will actively work harder to make its compositions earn more money over the long term because its livelihood depends on it.
Myth 3: A company’s market share will increase the success of a catalogue.
Market share reports look at the percentage of the compositions a company owns in the marketplace, as well as percentage of the top charting hits, and percentage of revenue from that company in relation to total income earned from all compositions in the marketplace. However, market share can be misleading because, top income and charting hits can come from a small percentage of all songs in the marketplace as well as a small percentage of a company’s catalogue. A company’s market share does not guarantee income production for a legacy catalogue because, as explained while debunking Myths 1 and 2, many of these songs are lost in a large catalogue and those forgotten songs will not be actively exploited. Therefore, it is often the case that only a catalogue that already earns substantial income without effort will thrive at a company focused on market share. Further, any bulk funds allocated to major publishers based on market share that the company splits with its songwriters will be allocated to the top earning catalogues, again neglecting under-performing legacy compositions.
Myth 4: A larger company is better at collecting income.
Again, this is not necessarily the case because a larger amount of data to process means more chance for error. I’ve seen countless catalogues at major companies not earning what they should because of mistakes in information that have never been fixed. I’ve seen major publishers not correct information for low-earning compositions because it’s not important to them. I’ve seen companies pay writers and their heirs the wrong royalty rates because no one bothered to look at the original contract rates and the writer’s heirs had to settle for much less than what they should have earned in order to avoid expensive litigation. I’ve also seen companies not take the steps to collect the income — even for high earning songs — because for whatever reason their staff never got around to it. All of these actions hurt the earnings of the compositions and hurt the writers and heirs that benefit from — and sometimes rely on — that income.
Myth 5: It’s too hard to move to an independent publisher from a major.
As explained above, an independent publisher will typically work harder than a large company to make its catalogues earn money. Independent publishers want notable cuts, work the sync market and typically are more diligent about properly collecting income — again, because each dollar matters. The challenge really lies with finding the right independent partner for a catalogue — someone who knows the music, understands the legacy, and has the right connections to exploit the catalogue properly. The right partners are out there, and in this case, it is actually more important to have the right advisors to assist the catalogue owners with making the best decisions for the catalogue.
Myth 6: Writers and heirs can’t self-publish.
Writers and heirs can self-publish if they have the right team in place. Publishing a catalogue with no experience doing so and no connections in the business is not a recipe for success. However, writers and their heirs can maintain ownership of the rights and have the right advisors in place to manage and promote the catalogue. I regularly manage and/or administer catalogues for my clients who have chosen to retain ownership and self-publish.
Myth 7: Heirs will know what to do with a catalogue.
Heirs will not automatically know what to do with the catalogue they have inherited just because their parent/grandparent/aunt/uncle/child was a songwriter. In many cases, these heirs were not exposed to the business side of their relatives’ career and in most cases have no experience with music publishing or managing compositions. Typically, heirs that inherit a catalogue are overwhelmed by the vast amounts of information and don’t know where to start in getting a handle on the catalogue. The heirs that are more adept at navigating the music industry have typically learned over many years and from astute advisors.
Legacy songwriters still living can make arrangements for their catalogues now and clean up the catalogue’s governing information and paperwork so that heirs will inherit an organized packet of information. The right advisors in place can guide legacy songwriters in managing the issues surrounding the catalogue and setting it up to benefit the heirs for the remainder of the copyright term. Many of my living legacy writers will designate me to continue managing the catalogue after their death and I regularly work with heirs to assist them with navigating how to manage the issues regarding their catalogue and maintain and grow what they’ve inherited.
Erin M. Jacobson represents and protects independent, established and legacy songwriters and artists (including their heirs and estates), legacy catalogues, independent music publishers, Grammy and Emmy Award winners, and other music professionals at her law practice based in Beverly Hills, California.
Disclaimer: This article does not constitute legal advice.
By: Erin M. Jacobson, Esq.
Seriously. Call me. I regularly work with legacy artists/songwriters/composers, heirs, and estates to protect and revitalize their catalogues. I assess what they own, what the current state of the catalogue is, and the various options for the catalogue to increase income while protecting the legacy of the creator and the works.
Decisions involving how to move forward with a catalogue can’t be made if one doesn’t know what (s)he has to work with. The first step is to know what compositions are in the catalogue, what agreements are in place, and who is collecting the income.
If the details are fuzzy, don’t worry. Most heirs and estates do not have previous experience with music catalogues and start with a vague idea. It’s my job to assist in making those fuzzy details become clear so that my clients know what they have, what options are available, and implement a plan to move forward.
Not only are the details of most inherited catalogues fuzzy, but the money is too. Most older catalogues have a lot of mistakes in the maintenance and management of the catalogue which prevents the catalogue from reaching its earning potential. I’ve worked on catalogues with 50-year old mistakes not corrected by the current owner, problems with chain of title, improperly handled derivative works, and more. I fix the problems and get income flowing again.
Copyright law provides a valuable gift to authors and heirs, which is the right to recapture ownership of copyrights. That’s right — authors and their heirs can reclaim ownership and control over their rights and how they are exploited. However, this gift comes with strict requirements as to when and how rights can be recaptured. (See articles with more information hereand here.) An attorney with extensive experience in copyright terminations is essential here, because there is only one chance to recapture rights – and that chance is lost if deadlines are missed or the procedure isn’t followed correctly.
I frequently see legacy artists and songwriters, and their heirs, who have been misguided in the management of their catalogues, who have lost rights to recapture, who don’t realize their catalogues are under-earning, and who don’t know where to start. The right advisors are tantamount to a successful recapture process and future for the catalogue. Each catalogue is unique and each client has different goals for the catalogue, its income, and the preservation of its legacy. Some options include negotiating a new deal for the catalogue, selling the catalogue, or self-publishing the catalogue. I work specifically to achieve what is best for each catalogue and each owner of that catalogue, and the results most often include clarity of mind and increased income for beneficiaries of the catalogue.*
There is only one chance to reclaim ownership of a catalogue and revitalize it – and the catalogue deserves it.
Please contact me to assist you in taking care of your legacy catalogue.
* Information stated is based on past experiences. Results are not guaranteed.
I am proud to announce that my most recent article, Attention Legacy Artists: 6 Things You Need to Know to Recapture Your Copyrights, has been published by Billboard!
By: Erin M. Jacobson, Esq.
This article was first published on Billboard.com.
There has been a lot of buzz recently about songwriters and artists (or their heirs) recapturing copyright ownership of their songs – and youcanbelieve the hype. Copyright law provides a chance for authors (or heirs of authors) to recapture ownership of the copyrights to works granted away many years ago, and the window allowed by the law to recapture those rights is now. Recapturing rights can allow for an author or author’s heirs to negotiate better deals with higher royalty splits in their favor, sell catalogues for large sums of money, or finally regain control of how a catalogue is exploited and increase profits with the right team in place.
However, recapturing rights is a complicated business filled with many requirements and nuances. Here are six things authors need to know about recapturing rights.
An author (or author’s heirs) can terminate grants of copyrights made before January 1, 1978 during a window beginning 56 years and ending 61 years from the original copyright date. However, notice of termination must be served on the current owner anytime between ten and two years before the date the author intends the rights to revert. For grants made after January 1, 1978, the calculation of when rights can be recaptured is based on the date of the grant, not the original copyright date. These post-1978 grants may be terminated beginning at 35 or 40 years after the grant date (depending on the language in the grant)with a five-year termination window. Again, notice of termination must be served on the current owner anytime between ten and two years before the date the author intends the rights to revert.
Being proactive is one of the most important factors when it comes to recapturing rights. As mentioned above, serving notice on the current owners of the copyrights is required to recapture rights. Because of the additional requirement that this notice must be sent between ten and two years beforethe date the rights will revert, anyone intending to recapture rights must look at leasttwo years ahead. If someone intending to recapture rights misses the notice window – rights cannotbe recaptured and the opportunity is forever lost.
The termination provisions that are the subject of this article are part of United
States Copyright Law and therefore only apply to U.S. rights. That means one can recapture U.S. rights, but not foreign rights. Also, as of this writing, the chance to recapture is only applicable to U.S. contracts.
Most discussions around recapture of copyrights refer to composition copyrights because compositions are generally more straightforward to recapture than master recordings. Most record company contracts say that masters are works made for hire for the record company, and as explained above, works made for hire are not eligible to be terminated. However, copyright law dictates that works made for hire must meet certain requirements to qualify as a work made for hire: (a) it must be made by an employee within the scope of their employment, or (b) it must be specially commissioned by the owner of the work for hire, it must be agreed in writing, and the type of work must fall within one of nine categories designated by the law. “Master recordings” is not one of those nine categories.
While there have been a few instances where labels have quietly relinquished rights to masters and sworn all parties to secrecy, most record labels refuse to release rights to masters and instead negotiate with the artist to increase their royalty rates. A higher royalty rate does not help artists whose masters are not being exploited and not earning money, but it is all in an effort for the labels to avoid setting a precedent. Master recordings are record labels’ main assets and businesses cannot give away their assets without also giving away power and profit.
Unfortunately, this is an issue that will only be decided by litigation and/or copyright reform, and neither of those has happened yet.
For pre-1978 grants, one author’s share may be terminated, rather than requiring co-writers to terminate together. However, if an author’s heirs are the ones effecting termination, then a majority of those heirs must terminate together.
Post-1978 grants signed by more than one author require a majority of those authors to terminate the grant together, and if any one of more of those authors is deceased, then a majority of the heirs of each deceased author must sign instead. However, there are exceptions to this rule if separate grants were signed.
Requiring multiple parties to sign the termination notices can be problematic if co-writers, or heirs fighting about estate issues, no longer speak. Even if the parties may have lost touch over the years, it benefits everyone involved to coordinate and cooperate to recapture rights.
If not already apparent by reading this article, assessing eligibility for filing terminations and carrying out the proper procedures to recapture rights is extremely complex. Furthermore, there are numerous nuances and requirements not discussed here that could also affect whether an author or an author’s heirs may recapture rights. Anyone seeking to recapture copyrights needs an attorney specifically focused on the music industry that also has extensive experience with assessing these issues and recapturing rights. Not all entertainment attorneys understand music and not all music attorneys are experienced with terminations.
I regularly recapture rights for my clients, as well as advise them on protecting and revitalizing their catalogues, as I am in a unique position where I am deeply familiar with both older music and how to navigate those catalogues within today’s marketplace. Being in this space also means I frequently see legacy artists and their heirs who have been misguided, who have lost their chance to recapture their rights, who don’t realize their catalogues are under-earning, and who don’t know where to start. The right advisors are tantamount to a successful recapture process and future for the catalogue.
There is only one chanceto recapture copyrights, one chanceto regain control of one’s legacy, and one chance to get it right. Choose wisely.
Post-1978 grants are terminable at 35 years after the date of the grant, however, if the grant’s language includes the right of publication for the work, then that five-year period begins either on 35 years after the date of publication, or 40 years after the date of the grant, whichever is earlier.
U.S.C. 17 §203(a)(3) (1998).
There have been a couple of high profile disputes on this matter involving U.K. contracts (namely Duran Duran in one instance and Sir Paul McCartney in another), but Duran Duran lost in a U.K. lower court and subsequently settled, and McCartney settled without litigation. Some other countries do have their own provisions for recapture of rights, but they vary by country and differ from U.S. law.
Disclaimer: This article does not constitute legal advice.
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.
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.
Twitch and the broadcaster split all income from subscriptions, bits, and Prime tokens, usually on at least a 50/50 basis.
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.
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.
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.
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.”
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.
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.)
Thanks to the Association of Independent Music Publishers (AIMP) for highlighting my recent recognition as a Rising Star and one of the Top Women Attorneys in Southern California by Super Lawyers.
The AIMP is a great organization supporting the interests of independent music publishers and I am proud to serve on the AIMP LA/National Board.