Categories: Legal Disputes, Music, Music Industry, Music Industry Interviews, Tags: break the business, dr. luke, Erin Jacobson, erin m. jacobson, free kesha, freekesha, ke$ha, kesha, lukas, Lukasz Sebastian Gottwald, music attorney la, music attorney los angeles, music lawyer, music lawyer la, music lawyer los angeles, producer, producer deal, record deal, sony
I was recently interviewed on the Break the Business podcast about the ongoing legal drama between Kesha and producer Dr.Luke. Download or listen to the interview on iTunes or Soundcloud. The interview is on Episode 28 and my interview starts at 20 minutes into the show.
Have a question about your deal? Contact Erin to book a consultation.
Categories: Articles, Business, Copyright, Law, Legal Issues, Music, Music Industry, Trademark, Tags: attorney, contract, copyright, fee, fees, lawyer, legal, percentage, registration, trademark
An attorney’s advice could make the difference for you between a successful and a nonexistent music career. Legal fees aren’t cheap, but they’re a worthy expense in your career progress. The cost of attorneys does vary due to a variety of circumstances, so as you plan your budget, you should keep the following factors in mind.
A lawyer with more years of experience will typically be more expensive than someone who is newly licensed. Also, an attorney with more experience in (or who devotes the majority of his or her practice to) a certain area of law will be able to charge more than someone who only dabbles in that area. Someone who’s better known in the business and has had more high-profile cases can also command a higher rate.
One of the most important factors that dictate the amount that you will have to pay an attorney is what you actually need the attorney to do for you. A short and simple contract or a consultation to answer questions will cost less than if you require a long, complicated contract to be drafted or reviewed. If you’re starting a company, you’ll need all new contracts drafted, which will take more time and thus be more expensive than reviewing a five-page agreement. Attorneys tailor contracts to your specific situation, which takes the attorney’s time and skill to create something specific to your needs. The amount of time needed for negotiation is speculative, as it’s rare to be able to predict the other party’s agreeability to contract changes or willingness to wrap up the deal promptly.
It may sound unimportant, but the location of an attorney’s office and the type of office that he or she has does factor into the fees charged. Attorneys in larger metropolitan areas and more expensive parts of town will charge more than those who have offices in less desirable areas. An attorney who’s part of a larger firm or who has a high-rent office will have to charge more to cover that rent. In contrast, an attorney with lower overhead costs may be able to charge less and pass those savings on to the client.
There are often other fees you’ll be responsible for when working with an attorney, such as filing fees. Copyright and trademark registrations have application fees set by the Copyright and Trademark Offices, respectively. Similarly, a trademark search company will set the fees to conduct a trademark search. In court matters, there are filing fees required and set by the court that will need to be paid to process your case. Attorneys have no control over these fees.
Other additional fees that may need to be paid to your attorney may involve things like postage or copying costs on your behalf. These are not ordinary costs in an attorney’s business. You are paying the attorney for his or her time, skill, experience, and advice, not for secretarial matters that are the client’s responsibility. These are fees that will be incurred no matter what your attorney’s fee is, but it’s important to remember that they are your responsibility so you can include them in your budget.
Fee structures vary greatly among attorneys. In Los Angeles, attorneys tend to range from about $250 to $750 or more per hour. Some attorneys require an upfront retainer payment, which is an advance against fees earned. Other attorneys will not require an upfront retainer payment, but will bill you after the work has been completed. In both of these scenarios, attorneys will keep track of the amount of time that they worked on your matter, and then multiply their hourly rate by the amount of time spent on your matter to calculate your total fee. There are also attorneys who will also work on a flat-fee basis depending on the task at hand.
Other attorneys work on a percentage basis where they don’t necessarily keep track of the amount of time that they worked on your matter, but will instead take a certain percentage of the amount you receive under the deal they’re negotiating for you. Alternatively, some attorneys will take a percentage, usually five percent, of your gross income. Attorneys who work on percentage usually only do so for high net worth clients, as otherwise the number of hours invested in a client may greatly exceed the amount paid to the attorney.
Some attorneys will use a client’s income and/or industry status as deciding factors in whether to represent a client. Especially at the larger law firms, many attorneys won’t accept new clients who won’t guarantee a certain amount of income to the firm.
Some litigators (attorneys who handle lawsuits in court) will take a case on contingency, meaning that they only get paid if they win your case, and then will take a percentage of the recovery from the case. However, most attorneys do not take cases on contingency, and will require an hourly rate and an upfront retainer. Again, these fees will vary based on the factors discussed above.
When you’re interviewing a potential attorney, ask about his or her rates and fee structure to determine if you can afford that particular attorney.
It’s incredibly difficult to generalize prices of what a certain matter will cost, as it depends on all the factors explained above. I’m quite hesitant to actually name numbers since they vary so drastically, but I will do my best to give an idea of the most basic matters to provide you with a starting point. (These are general fee ranges based on examples I have seen in the industry. These numbers are not quotes of my services, an advertised fee, or guarantees of fee amounts. If you need this type of agreement drafted, it will need to be based on your particular circumstances and your attorney’s best judgment.)
Copyright registrations are usually $35 to $55 for the registration fee, plus the time it takes for your attorney to file the application. Absent complicating circumstances and including only a small group of titles, this should usually take about an hour or less of your attorney’s time. There are also services like Indie Artist Resource that can register titles from $135 to $335, depending on the number of titles.
Trademark application fees are based on the number of categories (called classes) in which you want to protect your mark. For one class online, the application fee runs from $275 to $325. If you are registering in more than one class, multiply that number by the number of classes for which you are applying. Again, the application itself probably takes about an hour of time, but the Trademark Office usually requires amendments to be made later, which are again based on the attorney’s time spent on those amendments. The number of amendments requested depends on the mark, other marks already registered, and the attorney at the trademark office assigned to your application. A trademark search from a reputable company starts just under $800 for a word mark and just over $600 for a logo.
Something like very basic agreements for management, producer, or band partnerships could cost $800 to $2,000+ depending on the agreement and details of your situation, or $300 to $400 for a template.
Again, all legal fees will vary depending on your specific situation, so the most effective plan of action would be to figure out what you need as completely as possible, and then ask attorneys for an estimate. If the cost of what you need is above your budget, consider a solution like Indie Artist Resource, or save up more money for the investment – and it is an investment in your career.
Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.
Originally posted on Sonicbids.com
Categories: Business, Digital Distribution, Law, Music, Music Contracts, Music Industry, Music Publishing, Record Labels, Tags: cassette, CD, contract language, digital distribution, digital music, Erin Jacobson, in all media now known or hereafter devised, la, los angeles, media, mp3, music, music attorney, music contracts, music lawyer, rights, vinyl
By: Erin M. Jacobson, Esq.
It’s possible that you have seen or heard of the contract phrase “in all media now known or hereafter devised” or some similar variation.
In music contracts, this language is usually used to define in what media your music can be used. This phrase allows a company that has the rights to your music to use the music in the formats currently used at the time the contract is signed, as well as any new formats that are invented in the future (and may or may not be known at the time of signing).
For example, pretend that this is 1995, the most popular music format is still CDs, and MP3s had not hit the scene yet. If you signed a deal at that time that said the company had rights to your music “in all media now known or hereafter devised,” then that company also had the rights to start reproducing and distributing your music in MP3 format once that medium started being used circa 1998.
If you are signing a deal now with that language, the company can probably use your music on vinyl, cassette, CD, MP3/other digital file formats, and whatever they think of next. So when they start implanting microchips with music, you can bet your music will probably be on that too.
Got questions on your contract? Schedule a consultation now to get answers!
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 and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on,act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.
Categories: Music, Music Industry, Speaking, Tags: american idol, Erin Jacobson, erin m. jacobson, music attorney, music career, music industry, music lawyer, networking, panel, randy jackson, usc, usc thornton school of music
I had the privilege of speaking on the Music Career Panel put on by USC’s Thornton School of Music. The event was moderated by Randy Jackson, producer and former judge on American Idol.
Here are some photos from the event.
Categories: Articles, Copyright, Infringement, Legal Issues, Music, Music Industry, Music Publishing, Royalties, Social Media, Tags: 9.1 cents, copyright, cover song, cover song video, infringement, license, mechanical, royalty, song, sync, synchronization, upload, video, YouTube
by Erin M. Jacobson, Esq.
New artists trying to get discovered will frequently cover famous songs and upload videos of them performing these songs on YouTube. Many artists do not realize that without securing the proper permissions, posting a cover song on YouTube is actually copyright infringement.
User-generated cover song videos require permission to use the composition and permission to synchronize the audio elements with the video.*
To cover a composition, one needs to get a mechanical license. A mechanical license allows someone to record a song that has already been recorded and distributed by another artist. A mechanical license is most often obtained through the Harry Fox Agency. The related royalty stream is called a “mechanical royalty” which is a royalty payable to a composition owner for the privilege of being allowed to record that composition. This is the 9.1 cent royalty often mentioned in the music business.
However, the mechanical license only covers audio recordings of the original composition. It does not cover the synchronization of the audio with the video portion, for which one needs to obtain a synchronization or “sync” license. This is where most people get tripped up because they don’t get a synchronization license from the composition owner (usually the music publisher).
An artist who does not get permission from the owner of the song he is covering to synchronize his cover version with the accompanying video is infringing the copyright of the original composition. [tweetthis display_mode=”button_link”]Failure to get a sync license for your YouTube cover song video is copyright infringement.[/tweetthis]
The consequences of posting a cover song without the proper synchronization license vary. In some instances, the copyright owners of the original composition don’t know about the cover on YouTube or they choose to do nothing about it. In other cases, the copyright owners will send a DMCA takedown notice to YouTube and have the video taken down. Further still, someone who posts an unauthorized cover might get a cease-and-desist letter or the threat of legal action, and might actually get sued, leading to liability for a lot of money in copyright infringement damages.
Do you have more questions or need a license for your project? Contact Erin now to get your questions answered.
* In the case of a cover song, the original master recording is not used because someone else is making his or her own recording of the song and therefore no label permission is necessary. If one plans to use the original master recording in a video, that person would have to go to the master owner (usually the record label) and get a master use license to be able to pair the master recording with the video. I won’t discuss the performance right here since YouTube and similar websites have blanket licenses from the performance rights organizations. However, if an artist is uploading these videos to his or her personal website, that artist is also liable for the payment of performance royalties.
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 and Erin M. Jacobson, Esq. is not acting as your attorney or providing you with legal advice. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on,act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.
Categories: Interview, Legal Issues, Music, Music Contracts, Music Industry, Music Industry Interviews, Tags: business, contracts, independent, independent artist, indie, industry, interview, label, law, legal, music, musician, podcast, records
I am honored to be featured on the Break the Business Podcast where I was interviewed about legal help for musicians and how to get it. Listen to the episode Online or on iTunes.
Break the Business Podcast (Online / iTunes)
Categories: Articles, Business, Copyright, Music, Music Industry, Record Labels, Tags: agreement, album, album artwork, album cover, artwork, band, bands, cover, internet, license, photograph, photographer, photographs, photos, stock photo
Image via freeimages.com
Artists seem to have a lot of confusion as to what artwork can and cannot be used on album covers and also who owns album artwork. In this article, I will cover the most common sources of album artwork and how that artwork is owned.
For the sake of convenience, I will refer to both artwork and photographs as the “work” or “works,” as the principles discussed herein apply to both.
In this case you would likely create a piece of art and or take a photograph that you use on the album cover. Absent any unusual circumstances, you should own and have the rights to use artwork you created or photographs you took. If you are part of a band, it gets a little more complicated because one must note which member of the band created the work and what the agreement is within the band as to how the work will be owned. A particular band member may retain ownership of the work as an individual and license the rights to the work to the band, or may assign ownership of the work to the band so that the band owns the rights. If more than one member of the band created the work, they may be able to sign a simple Artwork Ownership Agreement, but again, it still needs to be determined whether those members will retain ownership of the work or assign ownership to the bands as an entity. A band owning the work created by a single member or multiple members may be determined on a case-by-case basis or it might be based on a band agreement.
Usually this scenario plays out in one of two ways: either someone is hired by you or your band to create artwork for your album, or you hire a photographer to take photos of you or your band and then use the photograph(s) on the album.
Paying for something does not equate to ownership of it under copyright law. You may own a physical copy of the work – a photo print, a painting, a CD – but that does not automatically give you ownership rights in the copyright of the work itself. If you have hired and paid an artist or photographer to create a visual image for your album cover, that artist or photographer will still own the copyright in the work unless that creator has assigned the copyright ownership of the work to you or your band. The assignment of copyright will often include a higher fee and/or a payment of future royalties in exchange for the creator giving up his or her intellectual property rights.
If there was no transfer of copyright and the artist or photographer retains ownership of the work, you would need to get a license from the creator to use the work for your album cover, as well as for promotional and other uses associated with the album. Again, this usually will involve a fee and/or possibly a royalty payment. Keep in mind that if the creator retains ownership, (s)he will be able to use or license the work for other purposes besides your album cover. An example of this would be the creator giving a magazine permission to use a photograph of your band that the creator photographed.
Whether working with a photographer or artist, you should get the terms of the agreement in writing. If the creator has given you a contract to sign, it would be wise to have a good music lawyer make sure the proper rights for uses related to album covers are granted in the language. If not, these rights will need to be added. If the creator retains copyright ownership, your lawyer may also be able to limit other uses granted by the creator. If the creator does not give you a contract, you should have your lawyer draft a contract so that the terms that are spelled out clearly.
If you purchased a stock photo on the Internet, you will need to check the license provisions that come with that photo. Some photos do not allow for commercial uses, while others do allow for commercial uses, and yet others allow for commercial uses but with higher fees required. You will have to choose a photo that allows for the rights that you will need for using the photo on your album cover and associated promotional uses. Using a photo that you like from the Internet without getting permission to use it is copyright infringement, even if you credit the source.
If there is a work that you like on the Internet that is not from a stock photo website or that you find offline, you will need to find out the identity of the owner of the work and contact that person to get a license for permission to use that work on your album cover. Transfer of copyright ownership is probably a long shot in this scenario, but some creators might be willing to transfer ownership for the right price.
Again, consult with a good music attorney to make sure you are getting the rights you need for your specific situation.
Do you have questions that you’d like to get answered in an upcoming “Ask a Music Lawyer” article? Please send topic requests to askamusiclawyer@gmail.com. Please note that specific case advice cannot be given, and if you have questions pertaining to an issue you are personally experiencing, you should seek a consultation with a music attorney.
This post was originally published on Sonicbids.com.
Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.
Categories: Clients, Interview, Law, Legal Issues, Music, Music Industry, Music Industry Interviews, Speaking, Tags: ascap, composer, copyright, film, music, music library, music library contracts, music library deals, music placement, music supervisor, placement, songwriter, sync, synch, synchronization, television, tv
On November 7, 2015, I spoke at the TAXI Music Road Rally on music library contracts.
I began the session by explaining the most important and common deal points in music library contracts, and then discussed specific contract clauses and wrapped up by answering questions from the audience.
Many songwriters and composers came up to me after the session to tell me how helpful the session was for them. I am so grateful I was able to be of service to them!
Here are a couple photos from the event:
Categories: Articles, Copyright, Infringement, Law, Legal Disputes, Legal Issues, Music, Music Industry, Tags: chiffons, copy, copying, copyright, copyright infringement, George Harrison, he's so fine, infringement, music, music business, music industry, music law, my sweet lord, plagiarism, sam smith, song, stay with me, steal song, stole, stole song, tom petty
Image via hivesociety.com
A lot of musicians email me claiming they have great cases for copyright infringement. Copyright infringement does happen, but there are more people who think they have a case than those who actually do. (Please note that I am not a litigator and the below explanation is only a general overview of the basic principles in a copyright infringement suit. Actual cases may include nuances not discussed in this article.)
In order to sue for copyright infringement, you must have your work’s copyright registered with the United States Copyright Office. You can register your works yourself (the online registration fee is about $35), but I recommend an attorney like me or a service like Indie Artist Resource to file the registration for you, as some of the questions and principles covered in the application can be confusing.
Keep in mind that under copyright law, two similar works can be created independently of each other without infringement. For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music. After all, there are only so many notes and chords that can be played.
However, if you do feel someone has actually infringed your music, you will have to prove that you have a valid copyright and your work was sufficiently original to warrant the validity of that copyright. Next, you will have to show that the alleged infringer copied your work. The analysis for infringement involves examining these three areas:
1. Direct copying
Here, you would have to show that the accused infringer directly copied the first work when creating his subsequent work. There is often no way to show direct copying, so the courts will instead look at the next two areas described below.
2. Access
When direct copying cannot be proven, courts will often infer that copying occurred if it is shown that the accused infringer had access to the allegedly infringed composition. This can be proven by showing that someone had direct access to your work, such as if you gave a copy of the song directly to the alleged infringer, or gave it to someone who had access to that person, like a producer or label executive.
Access can also be shown if the prior work is widely disseminated, such as a famous hit played on the radio and well known by the public. Here’s an example of how access was surprisingly proven in a real case: In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[1] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[2] The court didn’t require actual proof that Harrison had heard “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[3] – coincidentally at the same time The Beatles were becoming famous.[4]
The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[5] The court went on to further conclude that it did not believe Harrison deliberately copied the song,[6] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[7]
Therefore, if you have written a song, but it is not well known by others and you have not given it to someone where you can show a direct connection to the person who supposedly copied your song, you don’t have a case. It’s not enough to write and record a song that only a small number of people have heard, and then try to file a lawsuit when something shows up on the radio that you think sounds similar, when in reality you have no proof to show the other person even knew of your song.
3. Substantial similarity
The third analysis looks at the similarities, if any, between the two songs. If the degree of access to the first song is high, the amount of proof required to show similarity between the two songs will be lower than if there was not easy access to the first song.
Here, a court will look objectively at which parts of the first song were allegedly copied, such as the melody, lyrics, etc. A court will also look at the subjective opinion of lay listeners, which is basically whether the average person would think the two songs sounded the same or similar enough when listening to them both.
This point in the analysis is where many people argue that it is supposedly acceptable to copy three notes of an existing composition or sample three seconds or less of an existing recording without infringing copyright. In fact, there are no such rules allowing this practice. Infringement is infringement.
If you have looked at the facts and can truly show that someone has either directly copied your song or has had access to your song, and their song is very similar to yours, then you will need to contact an entertainment/copyright litigator to discuss the potential merits of your case. Keep in mind that these lawyers do expect to get paid for their services, although there are a few who may be willing to take important cases on a contingency. Check with the lawyer on his or her practices.
Footnotes:
[1] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).
[2] Id.
[3] Id. at 179.
[4] Id.
[5] Id. at 180.
[6] Id. at 181.
[7] Id.
This post was originally published at Sonicbids.com.
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. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity. This article does not constitute or create a lawyer-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 act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
Categories: Business, Music, Music Industry, Music Industry Interviews, Music Publishing, Tags: administration, Celine Dion, Christina Aguilera, co-publishing, Corinne Bailey Rae, Eames, Faith Hill, GLEE, kd lang, Kenny Rogers, Luther Vandross, Macy Gray, Michael Eames, Miley Cyrus, music business, music industry, music publishing, music publishing deal, Paulina Rubio, PEN Music Group, placements, record labels, Santana, Selena Gomez, song placements, The Black Eyed Peas, the cast of GLEE
I’m happy that the first post of 2014 is an interview with Michael Eames, President of PEN Music Group.
Michael Eames, President of PEN Music Group
Founded in 1994, PEN is a full-service independent music publishing company with a worldwide presence who is celebrating its 20th Anniversary in 2014. PEN offers efficiency and personal attention as a boutique company. With PEN’s A-list music contacts in film, TV and advertising, and a success rate that continues to grow (with 100+ placements each year), it is an effective alternative to the large multinational publishing companies. PEN has formed strategic partnerships with several record labels to leverage collective strengths and has joint ventures with other respected companies. PEN’s songs have also been recorded by artists including The Black Eyed Peas, Celine Dion, the cast of GLEE, Selena Gomez, Miley Cyrus, kd lang, Santana, Christina Aguilera, Corinne Bailey Rae, Faith Hill, Paulina Rubio, Macy Gray, Kenny Rogers and Luther Vandross, among countless others.
1. Describe a typical day at the office.
Other than the placement world, I think everyone is looking to YouTube to be a new frontier of sorts in generating income. And you can generate a lot of income on YouTube but it takes a LOT of views to have a decent financial impact. We are in a visual world now – any artist who wants a fighting chance should plan on making videos of their songs – whether they are gimmicky videos that go viral or not. It’s all about getting the exposure. But once you can get it (however you do it and it can be done outside of the major label paradigm), it’s how you use it and manage it that will determine your financial success. As mentioned before, successful touring artists sell records still and that generates mechanical income. It all feeds upon itself – the trick is figuring out where an artist or songwriter will first connect and then you take that and run with it.
Thanks to Michael for this very informative interview. Learn more about PEN Music Group here.