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Categotry Archives: Copyright

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

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

Don’t Get Screwed! How to Protect Yourself as an Independent Musician by Erin M. Jacobson, Esq. is now available in both print and ebook versions.

About the Book:

There’s a lot of confusing information in the music business: copyright, different types of royalties, how to get paid, and how to not sign over rights you shouldn’t. Now there is a single resource that explains these concepts in an easy-to-understand format.

Written by Erin M. Jacobson, one of the music industry’s top lawyers, this book is a plain English, straight to the point, primer on the topics you need to understand to make important decisions about your music career.  

This book explains:
– what copyright really means and why you should register yours,
– the different types of royalties and how they actually apply in the real world so you can understand how and when your music earns money,
– how to collect the money your music earns,
– the contracts most needed by independent musicians and why they are important,
– traps to avoid, and
– real examples of mistakes musicians have made and how you can avoid making them too.

This book provides information from an industry insider that is not available in other publications, and is an empowering resource for new, upcoming, and seasoned musicians.

Click here to purchase a PRINT copy.

Click here to purchase the EBOOK.

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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 Truth About Legacy Catalogues and How to Avoid the Myths That Harm Them (via Billboard)

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Categories: Articles, Business, Copyright, Legacy, Music Catalogues, Music Industry, Music Publishing, Tags: , , , , , , , , , , , , , , , , , , , , , , , ,

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.

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5 Things to Do If You’ve Inherited a Music Catalogue

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Categories: Articles, Copyright, Legacy, Legal Issues, Music, Music Catalogues, Music Contracts, Music Industry, Music Publishing, Royalties, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

  1.  Call Me.

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.

  1. Assess What is There.

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.

  1. Clean It Up.

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.

  1. Terminate.

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.

  1. Decide a Plan of Action.

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.

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Attention Legacy Artists: 6 Things You Need to Know to Recapture Your Copyrights

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Categories: Articles, Business, Copyright, Legacy, Legal Issues, Music, Music Catalogues, Music Contracts, Music Industry, Music Publishing, Royalties, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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.[1] 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.

  1. Dates Matter

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.[2]  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.[3]  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)[4]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.[5]

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. 

  1. Works for Hire Need Not Apply

If an author signed a work for hire agreement for the works in question, don’t bother.  Copyright Law specifically states that works for hire are not eligible for termination.[6]

  1. U.S. Rights Only

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.[7]

  1. Masters are an Uphill Battle

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.[8]  “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.

  1. Relationships Matter

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.

  1. Don’t Try This at Home, Kids

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.

_____________________________________________________________________

[1]Depending on the circumstances of each individual work, as some works are not yet eligible, no longer eligible, or not eligible at all to recapture.

[2]U.S.C. 17 §304(c)(3) (1992).

[3]U.S.C. 17 §304(c)(4)(A) (1998).

[4]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).

[5]U.S.C. 17 §203(a)(4)(A).

[6]U.S.C. 17 §304(c) (1992); U.S.C. 17 §203 (1998).

[7]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.

[8]U.S.C. 17 §101 (1992).

 

Disclaimer:  This article does not constitute legal advice.

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How Amazon’s Twitch.tv Cheats Music Creators

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Categories: Articles, Copyright, Infringement, Legal Issues, Music, Music Industry, Music Publishing, Performance, Record Labels, Royalties, Streaming, Videos, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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.

What is Twitch

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.

Income Earned by Twitch and Twitch Partners/Affiliates

  1. Ad Revenue: Twitch serves ads on all video content, which includes video-on-demand and pre-rolls, and collects ad revenue from showing these ads.
  2. Subscriptions: Viewers can subscribe to a particular broadcaster’s channel at pricing tiers of $4.99, $9.99, and $24.99, with these charges recurring monthly.These subscriptions allow viewers to support broadcasters and use special emotes (chat icons like emojis) that are accessible only to subscribers of a particular broadcaster’s channel.
  3. Bits: Viewers can contribute “bits” to a broadcaster during a stream. Bits are a digital currency within Twitch bought by users for real money, and contributing these bits to a broadcaster is basically like adding money to that broadcaster’s tip jar.
  4. Amazon Prime: Because Twitch is owned by Amazon, Prime members can use “tokens” from their Prime membership to subscribe to broadcaster channels on Twitch. Tokens renew every month, so a Prime member can re-subscribe to a broadcaster’s channel on a monthly basis using Prime tokens.

Twitch and the broadcaster split all income from subscriptions, bits, and Prime tokens, usually on at least a 50/50 basis.

Income Earned Directly by Broadcasters

  1. Donations:Viewers can contribute money directly to a broadcaster through third party services like StreamLabs, Muxy or StreamElements without buying bits.
  2. Media Share: Viewers can make “media share requests” through StreamLabsand StreamElements, meaning viewers can request a broadcaster to play a certain song, YouTube video, or other media within a live stream (hereinafter “Media Share(s)”). Prices for Media Shares are set by the broadcaster, and some broadcasters will start their pricing at $5 per request.

A Twitch Broadcaster’s Earnings

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.

Music Licenses Required

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.

How Music Rights are Being Violated

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.

Current State of Affairs

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.”

Interscope later supposedly stated the DMCA takedowns were an accident and Juice Wrld apologized to the Twitch broadcasters, saying “I will do what I can to prevent it from happening again.”

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.

The Real Problems

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.)

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Want to Get Your Copyrights Back? (Here is What You Need to Know)

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Categories: Articles, Copyright, Music Industry, Music Publishing, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

By: Erin M. Jacobson, Esq.

There has been a lot of buzz lately about songwriters and artists (and their heirs) reclaiming thei copyrights and striking new deals or self-administering/self-releasing. What many want to know, is who can reclaim copyrights and how?

There are certain provisions in the copyright law where, under certain circumstances, an author or that author’s heirs can reclaim copyrights that have been granted away at some time in the past. It’s a really complicated section of the law, and not all attorneys are well-versed in it, so it is important to make sure whoever you hire really knows the intricacies of filing terminations.

For purposed of this article, I’m going to go over the basics.

There are two main sections of the copyright law that apply to copyright terminations:

  • Section 304c applies to copyrights and grants before January 1, 1978. Termination under this section can be effected between 56 and 61 years after the original date of copyright, and termination may be effected in regards to one author’s share of the work.
  • Section 203 applies to grants made after January 1, 1978, regardless of the original copyright date of the work. Grants falling under this section may be terminated between 35 and 40 years after the grant date. If the grant 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.
  • Note that under Section 203, grants signed by more than one author require a majority of those authors or their heirs to terminate the grant. It is not like section 304, where one author’s share can be terminated independently. However, there are exceptions to this rule if separate grants were signed, such was the point at issue in the Victor Willis/ “YMCA” case.

Who can terminate?

  • The author
  • The author’s heirs, if the author is no longer living. (There are only specific people in a specific order of succession that are considered heirs. Again, make sure you have an attorney experienced with terminations advise you.)
  • If the author’s share is being terminated by the author’s heirs, those heirs must make up a majority (at least 50%) of that author’s termination interest.

Some additional points that apply to terminations under both sections:

  • When you want to effect a termination, you actually have to send a notice to the current owner of the copyright in advance of the termination date. This notice must be served not more than ten, but not less than two years before the effective date of termination. If you miss this notice window, you lose your right to terminate.
  • The notice must be recorded with the Copyright Office before the effective date of termination to be valid.
  • Works made for hire or grants by will are not eligible for termination.
  • Termination is a matter of law, so it can be affected regardless of any contract or agreement to the contrary.

Why is the right to terminate important?

Recapturing rights and starting to exploit them again can revive older compositions or catalogs, and help them to start making money again when they’re currently lost and forgotten in the catalogs of large music publishers. Also, this increased exploitation (or an advance in a new deal) would mean more money for the authors or heirs. The decision whether to terminate must be carefully considered based on the catalog at issue as well as the situation of the authors/heirs.

I regularly work with legacy clients and their heirs to determine the best plan for the catalog and filing termination notices, if that is the best choice for the client, so please contact me if I can help you with your catalog.

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. 

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How Spotify Has Waged War With The Music Industry

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Categories: Articles, Copyright, Music Industry, Music Publishing, Royalties, Streaming, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was first published on Forbes.com.

Spotify has waged a war with the music industry. The streaming company has a history of not paying mechanical royalties to songwriters and music publishers, and has already settled two separate class action lawsuits for failure to pay mechanical royalties – the first brought on behalf of music publishers by the National Music Publisher’s Association (NMPA) and the second, known as the Lowery/Ferrick case, brought by independent songwriters. Now, a host of top songwriters, including Tom Petty and members of Rage Against the Machine, Weezer, The Black Keys, and more, have come forward urging the court not to approve the terms of the Lowery/Ferrick case. These songwriters oppose the settlement amount in the Lowery/Ferrick case because when the costs are broken down, Spotify’s liability for not paying mechanical royalties would be to pay a mere $3.82 per infringed composition. The maximum liability under the law for copyright infringement is $150,000 per infringed composition. Quite the difference.

As I previously reported, Spotify was also hit with two independent lawsuits – again for failure to pay mechanical royalties — brought by songwriter/publisher Bob Gaudio and music administrator Bluewater Services Corporation. Even more recently, seven other music publishers have sued Spotify for the same violation.

The Gaudio/Bluewater suits accused Spotify’s practices being reminiscent of Napster, which caused Spotify to fire back with the outrageous claim that Spotify should not have to pay mechanical royalties to songwriters and music publishers at all. More realistically, Spotify has argued that copyright law does not define streaming and places the burden on the plaintiffs to show that Spotify is creating a “reproduction” and therefore required to pay mechanical royalties.

As I explained in my last article, streaming requires several licenses – sound recording licenses from the record labels; performance licenses for the compositions from performance rights organizations such as ASCAP and BMI; and mechanical licenses for the reproduction of the compositions. Spotify now argues that it is akin to other streaming services like Pandora, who only have to pay performance royalties. However, Spotify’s argument is flawed for several reasons.

  • First, Pandora and similar services online radio services are classified as non-interactive services because a user cannot choose to listen to a specific song on demand. This is similar to terrestrial radio, except it’s online instead of on the FM dial. In contrast, a Spotify user can choose and play any song the user wishes on demand, which makes Spotify an interactive service. Copyright law makes important distinctions between non-interactive and interactive services, and for the relevant purposes here, the most important difference is that non-interactive services are only required to pay performance royalties (as the use is only a performance, again, like terrestrial radio) and interactive services are required to pay both performance and mechanical royalties (because the nature of the technology actually consists of a reproduction of the data file in addition to the performance itself). Therefore, Spotify cannot rely on the requirements of a separately classified type of service when those requirements don’t apply to Spotify’s service.
  • Second, Spotify has previously stated that it “needs” mechanical rights as part of its operations and has argued in rate court proceedings to weigh in on what mechanical rate amounts it should have to pay. It is both hypocritical and faulty reasoning for Spotify to say it needs certain rights and subsequently argue the opposite.
  • Third, Spotify has previously settled the two class action lawsuits mentioned above in order to rectify its previous non-payment of mechanical royalties. Spotify’s excuse in these cases was that it was too difficult to pay everyone owed due to the lack of a comprehensive music industry database. Once again, Spotify previously accepted that it needed to pay mechanical royalties, but made excuses for its failure to do so, which is in direct opposition to its current claim that it does not need to pay mechanical royalties at all.
  • Fourth, the music industry has long ago come to a consensus that an interactive stream does require a mechanical license and there is evidence that Spotify actually does create reproductions of the files, specifically on users’ mobile phones.

While Spotify’s argument that a stream does not require a mechanical license was recently rejected in court, Spotify can still continue asserting that argument going forward. If a legal decision in Spotify’s favor set a precedent on this issue, it could mean massive losses of income to songwriters, music publishers, and the music industry as a whole. While there are several theories as to why Spotify has taken this approach, the simplest answer seems the most obvious – Spotify doesn’t want to pay. The scariest part of this whole situation is that with Spotify’s massive amount of funds, it has the power to continue litigating this issue with efforts to change the laws and practices of the industry to conform to its unwillingness to pay for the music it uses. It is unacceptable that Spotify has built its entire business on the usage of music content, but yet continually tries to get out of paying for the very content that sustains its customer base. Without music, there is no Spotify and it’s time Spotify stopped making excuses and started to value the music that built its business.

*This article does not constitute legal advice.

Erin M. Jacobson is a music attorney whose clients include Grammy and Emmy Award winners, legacy clients and catalogs, songwriters, music publishers, record labels, and independent artists and companies. She is based in Los Angeles where she handles a wide variety of music agreements and negotiations, in addition to owning and overseeing all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection. Ms. Jacobson also serves on the boards of the California Copyright Conference (CCC) and Association of Independent Music Publishers (AIMP).

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Sync Licenses Explained!

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Categories: Articles, Copyright, Film, Music Contracts, Music Industry, Music Publishing, Performance, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

A synchronization license is a license to use a composition in an audiovisual production. (A master use license is a synchronization license for the master recording.) A placement can be quite lucrative, but it’s important to understand how your music is being used. Here’s a basic overview of the main points in a synchronization license:

  1. Licensor

The licensor is the person who owns the music and giving permission for it to be used in the audiovisual project. The music publisher owns the composition and the record label owns the master recording. Independent musicians might own both.

The licensor’s information will also include the licensor’s ownership share of the composition or master that is the subject of the license. Also, the writers of the composition and their performance rights organization information will be listed.

  1. Licensee

This is the person receiving the permission to use the music in the audiovisual project. This is usually a production company, studio, or network.

  1. Timing

Timing is how much of the song will be used in the audiovisual project; for example, it could be thirty seconds or an entire song.

  1. Type of Use

This is basically how the music will be used. There are many different terms thrown around to designate the type of use, but without using a bunch of industry-specific terms, examples would be playing in the background, with or without people talking over it; a live performance; played on a radio; an opening or closing theme; or in the credits.

  1. Territory

The territory covers where in the world can the music be used within the audiovisual project. This might be worldwide, for a specific country, or even a local area.

  1. Term

The term is for how long can the music be used within the audiovisual project. This might be in perpetuity or only for a specific length of time.

  1. Media

This is a big talking point because it includes the types of media in which the music can be used as part of the audiovisual project. This can include TV (and what types of channels), theatrical (movie theatres), film festivals, the Internet, all of these, or only some of these. The rights section also includes language about whether the music can only be used in the specific project itself, or also whether it can be included in promotions for the projects and if so, what types of promotions.

  1. Money

Everyone’s favorite topic, i.e. the fee you are getting paid for the use of your music!  This is going to be a negotiated fee based on the type of use, popularity of the song, and other factors.

  1. Direct Performance

Direct performance rights are not present in every sync license, but are being seen more frequently. Basically, some licensees want to pay a buy-out fee of your performance royalties in an effort to move away from paying blanket license fees to the performance rights organizations (who would normally collect your performance royalties and pay those to you). One problem with this is that the licensees still have their blanket licenses with the performance rights organizations, so a buyout of performance royalties would leave you out of any income generated from performances over the amount of the buyout.

  1. Some legal language

This is for your attorney to handle!

 

One should always have an experienced attorney look over any license you receive. Contact me if you have a license you need reviewed.

 

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. 

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You’ve Inherited a Song Catalogue, Now What? (What Heirs Need to Know)

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

By: Erin M. Jacobson, Esq.


I see many spouses or children that inherit a song catalogue from a songwriter relative, and are not familiar with the music business or how to administer intellectual property rights of music.

Here is the first thing to do: Hire a music attorney experienced with managing catalogues and music publishing.

When I work with heirs on how to manage a catalogue they’ve inherited:

  • I assess the catalogue. I work with my client to know exactly what they have in the catalogue. I find out whether the heir owns the copyrights to the songs – either because the original writer never granted them away or recaptured them at a certain point before inheritance. If the heir doesn’t own the songs, I determine who does have ownership and the terms of the deals with those owners.
  • I review the old contracts and assess whether the current publisher or administrator is doing the best job for the catalogue or if the catalogue might be better at a new home.
  • I assist with inventory of all the titles, copyright years, and registration numbers (if possible); and determine all sources from which the heir receives statements and royalties. Keeping everything organized is essential to either managing or selling the catalogue.
  • I assess whether certain provisions of the copyright law apply so that an heir who doesn’t own the catalogue may be able to reclaim ownership of those copyrights, after which I can negotiate a new deal with the best publisher to manage the catalogue.
  • I coordinate a valuation appraisal of the catalogue for potential sale.

Selling the catalogue is a personal decision, it depends on whether one would rather receive royalty checks or instead receive a lump sum upfront in exchange for the catalogue. This depends the circumstances of each individual situation, both from a financial standpoint and whether the heir wants to have a continuing relationship to the catalogue.

Inherited catalogues are special for family legacy reasons, but also because they come with their own set of decisions. Many heirs have not had previous experience with the music publishing business, and either miss important milestones that would put the catalogue in a better position, or they rely on existing deals with companies that are no longer looking out for the best interests of the catalogue. Banks and other trustees often complicate matters, as well as representatives not experienced in music publishing and copyright management. Many of these personnel only look at the numbers. I personally love older music and understand the sentimental value of a catalogue beyond the income it brings in each year, as well as whether and how it can be profitable in today’s market.

Again, the first step in dealing with a catalogue you have inherited is hiring a music attorney experienced with music catalogues and who can make the right plan for your catalogue.

 

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. 

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