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Are Your Musical Works Protected?

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Categories: Articles, Copyright, Infringement, Music Industry, Trademark, Tags: , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

Music creators and rights owners ask me on a daily basis about whether their musical compositions and recordings are properly protected by copyright.  Lately, there have been some companies popping up claiming to offer protection for musical works, and these companies are promoting misinformation that actively hurts music creators and rights’ owners.  In this article, I set the record straight.

Copyright Protection

When a work created with sufficient originality to qualify for copyright protection and is “fixed in a tangible medium of expression,” it technically has copyright protection under the law.  “Fixed in a tangible medium of expression” means that the work has been reduced to a physical format capable of being reproduced, such as writing it down, recording it on an audio or video recording, etc.  

However, even though a work may have copyright protection when it is created, registering works with the United States Copyright Office provides certain benefits that one only has with a federal registration.  These benefits include:

  • Being able to sue in federal court for copyright infringement;
  • Public notice of who owns the work;
  • Listing in the United States Copyright Office’s online databases;
  • A legal presumption of ownership of the work in court (if certain conditions are met);
  • 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); and
  • The date of creation listed on a federal registration certificate is the strongest evidence a court will consider.

Let me emphasize two of these points again:

A person (or company) cannot sue in federal court for copyright infringement without a registration with the U.S. Copyright Office, and the date of creation listed on a federal registration certificate is the strongest evidence a court will consider.

The Nature of Copyright “Registration” Companies

To be clear, there are some companies that will provide the service of filing copyright registration applications with the U.S. Copyright Office on a creator’s behalf.  While one should still do one’s due diligence on these companies to make sure they are experienced and will file the registrations correctly, the services these companies provide is not the focus of this article.

In this article, I am specifically talking about companies that offer “registrations” with their own service in order to “protect” a work.  There are companies offering a “date stamp” – some of them even advertise an encrypted date stamp – to show evidence of the date of creation of a work.  These companies charge just a few dollars per registration and make it appear that using their service will save the user a lot of money in comparison to the fees of the U.S. Copyright Office (currently ranging from $45-65 per application).

However, here is the problem:

First, as already explained,  the date of creation listed on a federal registration certificate is the strongest evidence a court will consider.  While a court may look at other outside evidence, there is absolutely no guarantee they will accept this evidence, and a court will still want the federal registration certificate.  When I have inquired with these companies about whether they have any instances of a court accepting the registration they offer as valid, I have not received a response, and the fine print on these companies websites will state there is no guarantee their registration will be accepted as evidence by a court.  In other words, the answer here is no.  

Second, also as already mentioned, a federal registration certificate is required to pursue a copyright infringement claim in federal court.  If one does not have a federal registration certificate and an infringement (or potential infringement) occurs, the owner of the allegedly infringed work will then have to immediately register the work with the U.S. Copyright Office in order to pursue the claim, AND, will have to rush the application to pursue that claim timely.  The Copyright Office calls this rushed status “Special Handling,” and charges a fee of $800 to rush the application.

While someone thought spending less than $5 on a “registration” with a private company was saving money, that person would end up having to pay $845-865 just to obtain a federal registration to have the ability to defend an infringement for one work.  If the person initially registered the work correctly with the Copyright Office, the fee would have been $45-65, and would have come with all the protections afforded by federal registration, saving that person $800 (plus the money already spent on the other “registration” company).

A Note about Trademarks

Trademarks, which in the music space mostly apply to band names and company names, have a little more leeway here because trademarks can gain protection by use “in commerce”, i.e. out in the marketplace.  However, the same benefits outlined for federal copyright registrations apply to trademark registrations as well.  

Therefore, while these trademark “registration” services provide an example of using a name at a certain time, they do not provide the good will that can only be built by using the mark in commerce, which could include performing under that name, selling music under that name, etc.  Plus, one also cannot sue to protect a trademark in federal court with out a federal trademark registration.

Therefore, the same arguments above also apply here as to why these companies are a waste of money.

What if There Is No Federal Registration?

For both copyrights and trademarks without federal registrations, there may be some protections under state “common” law, however, these protections only extend within a certain state (hugely important in the case of trademarks especially), and provide a much lower level of protection than federal registrations.

Conclusion

Music creators and rights’ owners receive bad information all the time — from friends, other people in the business, and the internet.  However, what really makes me mad is when companies – many of them owned by musicians or former musicians – make promises to music creators and rights’ owners under the guise of helping them, when really the “service” they provide does not afford the level of protection suggested and is profiting off the ignorance of music creators who are simply trying to protect their work. 

Are these companies malicious in their intentions?  Probably not.  They probably just saw what they thought was a creative business idea.  As I mentioned, the fine print usually indicates that these services only provide an indication of a date of creation and no guarantee of acceptance as evidence by a court, but let’s face it, almost no one is going to read the fine print.  Independent musicians already working with smaller budgets do not need to spend money on worthless date notations when they should be putting their money toward receiving all of the benefits afforded by federal copyright registrations.

A person can file one’s own registration applications with the U.S. Copyright Office, and those on a budget may be able to file some applications containing multiple works (if certain conditions are met).  However, because the details of such registrations can often become nuanced, one can also hire an experienced music attorney to assist with correctly protecting one’s works.

All music creators and rights’ owners deserve the real and true information on how to protect their works.  The correct information is available and can be obtained with a little research or by working with professionals acting in accordance with the definitive procedures provided by U.S. Copyright Law.

Creators and rights’ owners owe it to themselves to protect their work correctly, rather than looking for a cheap solution that will ultimately leave them and their work unprotected when it counts.

This article does not constitute legal advice.

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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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Erin M. Jacobson, Esq. named a 2019 Super Lawyers Rising Star

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Categories: Honors and Awards, Tags: , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson, Esq. has once again been named a Super Lawyers Rising Star!  Thank you to Super Lawyers for this great honor!

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