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Categories: Articles, Business, Legal Disputes, Legal Issues, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.


This article was originally published on Synchtank’s Synchblog.


It’s been an interesting year in the music legal field. Some outcomes were positive steps forward for the music industry, and some, well, not so much. Here’s a recap of some of the most talked-about legal happenings of 2019, and what they could mean for 2020.

Katy Perry’s “Dark Horse” Infringement Lawsuit

Background: Christian rapper Marcus Gray, professionally known as “Flame”, sued Katy Perry and her collaborators stating that Perry’s song “Dark Horse” infringed on his song, “Joyful Noise”. Perry and her team testified that they had never heard “Joyful Noise” and therefore could not have copied a song of which they had no knowledge. The actual musical evidence was lacking in similarity as well.  However, the jury decided against Perry and her team because (1) the songs have a similar sound repeated in them, (2) “Joyful Noise” had been nominated for a Grammy in the Christian music category, and (3) Katy Perry had once been a Christian artist before she hit pop superstardom. Perry has appealed the lawsuit and the appeal is currently pending.

What it Means: Copyright infringement lawsuits require two elements to be proved, substantial similarity and access. The two works must show enough similarity that one could attest one creator had copied the other, and the infringing party must have had access to, i.e. heard, the allegedly infringed song. Access is often proven by performance of the infringed song on the radio, a producer who worked with the both artists or their team sharing music with the infringing artist, or other similar manner of delivery. Perry and her team were found guilty of infringement despite a lack of compelling evidence for both elements.

Copyright law also allows for independent creation, meaning that two people can write songs that sound similar, despite never having heard each other’s songs. However, it seems this tenant has been forgotten in this and many other recent infringement cases.

What to Look for in 2020: While there are definitely legitimate cases of infringement, verdicts like this will encourage the filing of more frivolous cases. Many artists are already afraid that anything they create will be taken advantage of by opportunistic people looking to boost their own fame by capitalizing on the publicity of someone else’s creation. Hopefully, we will see this verdict overturned on appeal.


Led Zeppelin “Stairway to Heaven” Copyright Lawsuit

Background: The trustee for Randy California, the late lead singer of the band Spirit, sued Robert Plant and Jimmy Page, saying “Stairway to Heaven” infringed on Spirit’s composition, “Taurus”. Despite the fact both of these songs are decades old, the case went to trial.  In this case, there was access (Spirit had toured with Led Zeppelin in the late 1960s) and some similarity, but no infringement was found. The lawyer for California’s estate appealed, and the new decision is currently pending.

What It Means: Those in the music industry agree this verdict was correct. While California could have sued during his lifetime, he chose not to do so, and the evidence here was not compelling enough to prove the infringement claim.

What to Look for in 2020: Hopefully, the original decision will be upheld. The industry needs some precedent for correct rulings in copyright infringement cases.


Spotify’s Appeal of the Mechanical Royalty Rate Increase

Background: Last year, the Copyright Royalty Board (“CRB”) judges decided that music publishers and songwriters will get an increase on their mechanical royalty rates. The timing of this proceeding happened to coincide with the efforts of the music industry to pass the Music Modernization Act (the “MMA”). The digital service providers (“DSPs”), including Spotify, Pandora, Google, Apple, etc. rallied in cooperation with the music industry to pass the MMA. After the MMA was passed, the DSPs (except Apple) appealed the CRB’s decision to increase mechanical royalties.  The appeal is pending.

What It Means: The CRB decision provides for a 44% increase in mechanical royalties to songwriters and music publishers, with incremental raises from the current rates until the 44% is reached in 2022. The DSPs supported the passage of the MMA to gain immunity for being sued for copyright infringement for failure to license and pay for all of the music streamed on their services. Once achieving that immunity, they appealed the CRB decision to try to avoid paying fair rates to songwriters.

What to Look for in 2020: CRB decisions are historically difficult to overturn, so hopefully the music industry will receive the new rates it was promised. Despite the goliath size and bank accounts of the DSPs, they need to realize they cannot push the music industry around and must pay fairly for the content on which many of the them have built their businesses.


Passage of the Music Modernization Act

Background: The Music Modernization Act passed in October of 2018, which promised more streamlined licensing procedures for music on streaming services, a new, centralized registration database, and hopefully a better system for creators and rights owners to be paid streaming royalties. 2019 has been all about actually turning these promises into reality. The Music Licensing Collective board was elected to oversee the operations of this new structure, they negotiated the funding for the database with the DSPs, and choose a vendor to build the infrastructure and supply the data (recently revealed to be The Harry Fox Agency).

What It Means: There will be a lot of changes in data practice, and a lot of work for creators and rights’ owners to learn a new system and register their works with the new database.

What to Look for in 2020: The database is slated to roll out in beta-mode, with it planned to be fully operational by 2021.  2020 will involve a lot of data uploads.


Taylor Swift’s Master Recordings Dispute

Background: Taylor Swift hit it big while signed to Big Machine Records, and then moved on to Universal Music Group.  Big Machine decided to sell its catalogue of masters to Scooter Braun, backed by some investment funds. Swift and Braun have a longstanding personal beef, and when the sale occurred, Swift took to social media to express her horror at her nemesis owning her masters. Swift stated she was not given the opportunity to buy her masters back. The parties engaged in a public back-and-forth. Taylor announced she will re-record all of her old masters in 2020 once her re-recording restriction from her Big Machine contract has expired. Later, Swift said Braun was blocking her from performing her older songs on the American Music Awards and using the older music in an upcoming Netflix documentary. Another public battle ensued, with Swift ultimately being able to perform as planned.  Now stories have emerged that Swift is denying all licensing requests for her music until she is able to re-record her masters in 2020 and then will resume licensing with masters she owns.

What It Means: Regarding the American Music Awards performance, this is the first time that a record label has publicly argued that a recorded television performance violates a contractual re-recording restriction, when normally that restriction is limited to recording new audio masters. When Swift does re-record her masters, it could negatively impact Braun’s recoupment of his investment. This dispute has opened the eyes of many artists as to what they may give up when signing a record deal, and there is a growing trend toward artists seeking to retain master ownership.

What to Look for in 2020: Swift will most likely continue with her plan to re-record her masters. More public mudslinging may ensue. Artists overall will increasingly seek opportunities that allow them to retain master ownership.


Overall, 2020 will see a lot of changes in the music industry. Hopefully, the results will be just as exciting as the anticipation for their arrival.




Musicians: If You Haven’t Registered With These 4 Services, You’re Missing Out on Your Money

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Categories: Music Industry, Royalties, Tags: , , , , , , , , , , , , , , , , , ,

There are several potential musician income streams that you’ll unfortunately never see if you don’t set yourself up to collect them. More established musicians have the same responsibility, but often have representatives taking care of these procedures for them, whereas independent musicians have to oversee royalty collection themselves. This means that many independent musicians are losing out on money they could otherwise be collecting because they either fail to register their songs properly, or they haven’t registered at all with the appropriate agencies that collect and pay out these royalties.

Are you properly registered with these four services? If not, you’re probably missing out on money you deserve!

Note: This article only focuses on royalty streams within the United States. It does not discuss international royalty streams.

1. Performing rights organizations

Performing rights organizations (PROs) collect performance royalties, which are royalties paid when musical compositions (not sound recordings) are played on terrestrial radio, digital radio, streamed online, heard on television, played in a live performance, or played in a public place like a bar or restaurant. If you aren’t registered properly or at all with a PRO, you won’t be getting paid for any of these uses of your music.

The three performance rights organizations in the United States are ASCAPBMI, and SESAC. ASCAP and BMI allow any songwriter to join, whereas SESAC requires a songwriter to be invited to join.

Songwriters need to register in three ways for a complete registration: as a writer, as a publisher, and for the individual compositions. Before elaborating on the necessities of registration, it’s important to note that performance royalties owed for a particular person’s contribution to a composition are split 50/50 between the writer and the publisher, known as the “writer’s share” and the “publisher’s share” respectively.

  • Writer: Every songwriter needs to register as a writer with a PRO in order to get paid the “writer’s share” of performance royalties, which is paid directly to the writer from the PRO. Writers can only register with one PRO at a time (not all three), although if you aren’t happy with your chosen PRO, there’s usually an opportunity to change your affiliation at a later date.
  • Publisher: If you aren’t signed with a music publisher, then you’re actually your own publisher, and you need to also register as such with the same performance rights organization to which you are registered as a writer in order to get paid the “publisher’s share” of performance royalties, which is paid by the PRO to the publisher of the composition. If you’re a songwriter who’s already signed with a publisher, you may not need to register as a publisher depending on your type of publishing deal.
  • Individual compositions: You have to register each individual composition that you write with your PRO. If you don’t register your compositions, your PRO will not pay performance royalties on those compositions because those compositions won’t be in the PRO’s database, and the PRO won’t know who’s supposed to be paid for those compositions.

2. SoundExchange

When it comes to copyrights and the practice of the music business, sound recordings are treated separately from musical compositions. In the United States, there’s currently only a performance royalty for sound recordings for digital performances, which are for uses like satellite radio and internet streaming. Registering for SoundExchange is free and will make sure you are receiving royalties when your recordings are streamed or otherwise digitally performed. As with compositions, it’s imperative that you register your individual sound recordings so that the recordings and the payment designee can both be recognized.

3. Harry Fox Agency

The Harry Fox Agency collects mechanical royalties, which are the royalties paid from the owner of the sound recording to the owner of the composition for the privilege of reproducing the composition onto the master recording. For physical CD sales and digital downloads, this is a statutory rate (i.e., set by the government) and is currently set at 9.1 cents for compositions lasting five minutes or less. There are also mechanical royalties paid for various online interactive streaming and subscription service uses (think Spotify) as well as mechanicals for ringtones, and the rates for these uses depend on the type of use.

If you’re a self-released artist who doesn’t write with anyone else, you’ll essentially be paying sales and download mechanical royalties to yourself, but it’s still important to register with Harry Fox to collect the other mechanical payments. If you have a relationship with a label or anyone else releasing your music (including co-writers where a song you contributed to as a writer appears on other artists’ albums), registration is important to collect all mechanical payments. If you don’t register and you aren’t diligent about collecting your mechanical royalties yourself, you’ll be missing out on income that could add up over time.

4. YouTube

The YouTube revenue system is slightly complicated, but it basically comes down to monetizing your videos by allowing YouTube to show ads before your video starts, and then you share in the revenue generated from those ads. The more views you get, the more the ad is seen, and the more money you make. For most people, the amount earned here might be minimal, but like finding change in the couch cushions, every little bit helps.


If you need assistance with signing up for these services, contact a music lawyer or use a service like Indie Artist Resource. Signing up for these services is the basic start to getting your music career set up correctly. Don’t lose easy money — it could pay back big time down the road.


Do you have questions that you’d like to get answered in an upcoming “Ask a Music Lawyer” article? Please send topic requests to 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.


Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. Her clients range from Grammy and Emmy Award winners to independent artists, record labels, music publishers, and production companies. Ms. Jacobson also owns and oversees all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection offering template contracts, consultations, and other services designed to meet the unique needs of independent musicians.

Originally published on

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.