Erin M. Jacobson is quoted in Time magazine regarding artist Halsey’s TikTok leak of one of her songs that is unreleased by her record label.
Erin M. Jacobson is quoted in Time magazine regarding artist Halsey’s TikTok leak of one of her songs that is unreleased by her record label.
Erin M. Jacobson, Esq. has been featured in the “Inspiring Women” interview series on Music Business Worldwide.
“It is a great honor to be featured in Music Business Worldwide, and also among so many other inspiring women in our industry,” says Jacobson.
Erin discusses her path to becoming a music lawyer, her innovative work with clients, her views on copyright terminations, fair pay, and the importance of songwriters and music publishers.
Erin M. Jacobson, Esq. is quoted in the LA Times article about the trademark dispute over the name “The Time” between the Prince Estate and Morris Day. As the Prince Estate’s letter to Day offers a license to the use of the name, Erin comments on how trademark licenses generally are structured.
I am proud to announce I am quoted throughout a fascinating and original new book, Leaving the Building: The Lucrative Afterlife of Music Estates, by renowned music journalist, Eamonn Forde.
This is a very interesting book that takes an in-depth look at some of the most famous music estates, with commentary from industry experts regarding managing music estates, how the music is used, the problems they face, etc. This is definitely an insider look into a topic that the public usually doesn’t have access to, so pick up a copy if you are interested in this topic!
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.
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:
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.
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.
By: Erin M. Jacobson, Esq.
This article was previously published on Synchtank.com.
The COVID-19 pandemic is requiring people all over the world to adjust to new daily practices for public health and safety. The pause on live events and productions has caused uncertainty and worry among many in the music community. There is still business to do, but it will require a more creative approach.
Here is a list of ways for music creators and companies to continue doing business and earning money during this uncertain time.
1. Make time for registrations. If you haven’t registered for royalty collection services, like performance rights organizations, mechanical societies, Sound Exchange, etc., you are likely missing out on royalties owed to you if your music is being used in ways that trigger these royalties (streaming, performances in audiovisual works, etc.). If you are registered with these companies, but haven’t registered your individual songs, then you are still likely missing out on royalties. Similarly, if you know your registrations are incorrect, then – you guessed it – you are likely missing out on royalties. Quarantine or not, pandemic or not, people are still streaming music, and music is still being performed on TV and online, which means music is generating royalties. When income in other areas has decreased, royalty income can be of great help. Now is the time to get caught up and get royalty income flowing in. If you need assistance with preparing these registrations, hire an experienced music industry professional to prepare and submit them.
2. Protect Yourself. If you haven’t registered your works for copyright, now is a good time to complete your applications to reap the benefits copyright registration provides. If you’ve been meaning to get contracts together with your collaborators to protect your work, now is a good time for that too. Again, if you need assistance with protecting your work in these ways, hire an experienced music attorney to handle these matters.
3. Get creative! You’ve likely got more time on your hands right now – use some of it to create new music! You might start writing for your next album, or maybe for libraries or placements. If you are worried about the current state of the world, channel that worry into your music as a healthy outlet for your stress. If you want to make a positive difference, write songs to uplift others in this uncertain time.
4. Collaborate (virtually). The beauty of technology means you can still collaborate with others during social isolation. Before computers, some songwriters would snail mail cassette tapes to each other to work on songs together over long distances. Now, you can send mp3, ProTools, or other files to each other via email or file transfer websites (or keep them in a shared cloud drive) to work with collaborators you already know. You can also use video chat programs such as Zoom or FaceTime to collaborate in real time. If you don’t have anyone to collaborate with, you can find people by using gig sites such as Airgigs.com.
5. Get social (from a distance)! Many consumers are spending more time on social media, YouTube, and apps like TikTok. Take some of your newly created works and post them to social platforms so that people staying at home have new music to enjoy. Maybe one of your songs about hope will resonate with people everywhere and gain you new fans. If you are a performing artist, you could also do live virtual performances for or virtual video chats with your fans. Fans would love the opportunity to connect with their favorite artists in a way they cannot under normal circumstances.
6. Check for aid. If you are really in dire straits, some organizations have put together funds to help the music community in this time of need. Here is a list of many national and state-based funds in the United States. Here’s a list for anyone affected in Canada, and the PRS Foundation in the UK also has a fund. Many companies, like Sony Music, also have established their own assistance funds for the music community.
As mentioned above, this is a good time to catch up on registrations, paperwork, or anything you’ve been putting off that will help bring in additional money. Not only will companies help themselves by doing this, but will also help their employees and their families, and their songwriters, composers, artists, and their families. Some companies, at least in the United States, may also be eligible for government assistance or deferment of payroll taxes, and should check with their financial advisors for options.
Keep business going as much as possible.
For everyone, follow the CDC guidelines and keep yourself and those around you safe by staying home except for essentials, practicing social distancing when you do have to go out, and washing your hands well and often. You need to stay healthy to continue business. Also, focus on hope. Although we don’t know exactly when, this will pass and the music industry will survive.
Stay safe and be well.
This article does not constitute legal (or medical) advice. Any advertisement is general in nature and not directed toward any particular person.
Erin M. Jacobson is interviewed in US Weekly magazine to explain how Big Machine is blocking Taylor Swift from performing her old songs.
By: Erin M. Jacobson, Esq.
This article was originally posted on Synchtank.
The window is open for authors and heirs to recapture ownership of their copyrights. Terminations create a lot of new movement for copyrights in the marketplace and rights’ owners need to be just as knowledgeable as authors and heirs in order to stay competitive.
Statutory terminations come with many complexities, but the basics are as follows:
In the United States, termination of a grant can be effected during a five year period: (1) Beginning 56 years after the original copyright date of the work for grants made before January 1, 1978; or (2) Beginning 35 years after the date of the grant for grants executed on or after January 1, 1978.*
Both of these categories of termination require that proper notice be sent anywhere between ten and two years before the effective date of termination and notices must also follow strict requirements. Works for hire and grants by will are not terminable and terminations under U.S. copyright law only apply to U.S. rights.
Outside of the U.S., there are some other countries that have their own rules regarding terminations, most notably, the British Commonwealth countries. British Reversionary Rights are generally uniform throughout the Commonwealth, but vary slightly per country and must be assessed on a case-by-case basis. Other countries do not have any termination rights included in their copyright laws.
Information on the recapture of music rights usually refers to composition rights only, as whether master recordings rights can be recaptured is the subject of an ongoing debate in the U.S. that will only be solved by litigation or a change in copyright law.
Information on the recapture of music rights usually refers to composition rights only, as whether master recordings rights can be recaptured is the subject of an ongoing debate in the U.S. that will only be solved by litigation or a change in copyright law. The issue here is that, as stated above, works for hire are not terminable, and most recording agreements state that the masters are works for hire for the record company. However, U.S. law requires that for a work to truly be a work for hire, it must be either created by an employee within the scope of employment, or specially ordered or commissioned by the company, with an agreement in writing stating the work is a work for hire, and the type of work must fall within nine categories established in the law. The problem here is that artists are not employees of record labels and master recordings are not one of the nine categories required for works to qualify as works for hire. Until this point, labels have been successful in retaining the masters by arguing the masters qualify as collective works or compilations, and by giving artists a few additional royalty points. However, at the time of this writing, there is a class action lawsuit pending in California to decide this very issue.
The Real Reason Why Authors and Heirs Want to Recapture Their Rights
Although the legal requirements for termination are imperative to navigating the copyright recapture landscape, most discussions on this topic fail to address why authors and heirs are so keen to exercise their termination rights in the first place. The answer to this question is that authors and heirs are terminating because they are not happy with their current publisher or label. This unhappiness normally is caused by the companies’ lack of attention paid to the catalogues, which results in significantly decreased earnings for those catalogues.
Authors and heirs are terminating because they are not happy with their current publisher or label. This unhappiness normally is caused by the companies’ lack of attention paid to the catalogues, which results in significantly decreased earnings for those catalogues.
Large companies, typically the “majors”, tend to focus their efforts on acquisitions and growth, which is not bad, but they fail to increase staff and training at the same rate as their growth. This leaves many compositions lost at these large companies because they are not being actively exploited and, in many cases, the staff isn’t even aware of the compositions. Further, when creators or heirs do try to get a company’s attention, their efforts are often ignored because the company does not want to spend time and resources on low-earning compositions. To further exacerbate the situation, many of these companies are not even accounting properly to the creators or heirs, and again, won’t take the time to investigate or remedy the situation because their efforts are focused solely on the highest earning compositions and further growth.
On the master side, not only are the royalty rates from the labels paltry, but in many cases, the albums are out of print and not being sold, and therefore the creator or heirs really just want a chance to do something with the music again instead of accepting the music’s fate of being locked in a vault, with the original tapes rotting away, never to see the light of day again.
In my experience, independent publishers tend to receive fewer termination notices because they do a better job with attending to and exploiting their catalogues, and usually make fewer mistakes in collection and accounting. I work with many independent publishers (both those I represent and those who work for my author/heir clients) who do a fabulous job making sure these works continue to stay relevant and earn income.
Some companies think they can prevent authors from terminating their rights by inserting provisions in their contracts whereby the authors waive their rights of termination. However, this practice is completely ineffective because the right to terminate cannot be waived via contract. Some companies also try to prevent terminations by making new, and equally unfair, deals with aging authors and heirs. I’ve even seen major companies effectively force creators or heirs into a new deal by using the threat of litigation against them when these companies know full well that their opponents do not have the resources to fight to reclaim their rights.
The other tactic companies take is to ignore received notices of termination or wait until right before the effective date to raise objections in an effort to deprive the authors/heirs with ample time to respond. It’s a common joke throughout the subset of attorneys dealing with terminations that the fastest way to be ignored by a company is to send them a termination notice (or tell them they owe you money).
When rights’ owners receive a termination notice, they should address it and engage good counsel who knows how to deal with the dynamics of these situations. Typically, once companies can no longer ignore the notices, they then dispatch the same few lawyers to repeatedly make the same narrow deals. When I represent music publishers, I work with them on specific strategies to address the catalogue at issue and craft a deal that benefits both parties in each situation, whereby the company can retain the work and continue to reap the financial benefits, but whereby the author or heirs also feel their needs are satisfied.
Music will always be the foundation of the music business, but the music business is not the same as it was 56 or 35 (or even 10) years ago. Music has a life and legacy of its own and how these copyrights are handled can either set them up to flourish or be forgotten.
Music has a life and legacy of its own and how these copyrights are handled can either set them up to flourish or be forgotten.
The changing times require changing ways and my practice focuses on this innovation to benefit both the rights’ owners and creators so that both can continue to benefit from these magnificent musical creations.
* Technically, section 203 of the U.S. Copyright Law says the window opens at the end of 35 years after the date of execution of the grant, or if the grant covers the right of publication, then at the end of 35 years after the date of publication or at the end of 40 years after the date the grant was executed, whichever is earlier.
Note: This article does not constitute legal advice.
Erin M. Jacobson, known as “The Music Industry Lawyer”, represents and protects independent, established, and legacy songwriters and artists (including their heirs and estates), distinguished legacy catalogues, independent music publishers, Grammy and Emmy Award winners, and other music professionals at her law practice based in Beverly Hills, CA. For more information, visit www.themusicindustrylawyer.com.