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Tag Archives: music law

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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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2019 LEGAL ROUND-UP – AND WHAT IT MEANS FOR THE MUSIC INDUSTRY IN 2020

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

By:  Erin M. Jacobson, Esq.   This article was originally published on Synchtank’s Synchblog.   It’s been an interesting year in the music legal field. Some outcomes were positive steps forward for the music industry, and some, well, not so much. Here’s a recap of some of the most talked-about legal happenings of 2019, and what they could mean for 2020.

Katy Perry’s “Dark Horse” Infringement Lawsuit

Background: Christian rapper Marcus Gray, professionally known as “Flame”, sued Katy Perry and her collaborators stating that Perry’s song “Dark Horse” infringed on his song, “Joyful Noise”. Perry and her team testified that they had never heard “Joyful Noise” and therefore could not have copied a song of which they had no knowledge. The actual musical evidence was lacking in similarity as well.  However, the jury decided against Perry and her team because (1) the songs have a similar sound repeated in them, (2) “Joyful Noise” had been nominated for a Grammy in the Christian music category, and (3) Katy Perry had once been a Christian artist before she hit pop superstardom. Perry has appealed the lawsuit and the appeal is currently pending. What it Means: Copyright infringement lawsuits require two elements to be proved, substantial similarity and access. The two works must show enough similarity that one could attest one creator had copied the other, and the infringing party must have had access to, i.e. heard, the allegedly infringed song. Access is often proven by performance of the infringed song on the radio, a producer who worked with the both artists or their team sharing music with the infringing artist, or other similar manner of delivery. Perry and her team were found guilty of infringement despite a lack of compelling evidence for both elements. Copyright law also allows for independent creation, meaning that two people can write songs that sound similar, despite never having heard each other’s songs. However, it seems this tenant has been forgotten in this and many other recent infringement cases. What to Look for in 2020: While there are definitely legitimate cases of infringement, verdicts like this will encourage the filing of more frivolous cases. Many artists are already afraid that anything they create will be taken advantage of by opportunistic people looking to boost their own fame by capitalizing on the publicity of someone else’s creation. Hopefully, we will see this verdict overturned on appeal.  

Led Zeppelin “Stairway to Heaven” Copyright Lawsuit

Background: The trustee for Randy California, the late lead singer of the band Spirit, sued Robert Plant and Jimmy Page, saying “Stairway to Heaven” infringed on Spirit’s composition, “Taurus”. Despite the fact both of these songs are decades old, the case went to trial.  In this case, there was access (Spirit had toured with Led Zeppelin in the late 1960s) and some similarity, but no infringement was found. The lawyer for California’s estate appealed, and the new decision is currently pending. What It Means: Those in the music industry agree this verdict was correct. While California could have sued during his lifetime, he chose not to do so, and the evidence here was not compelling enough to prove the infringement claim. What to Look for in 2020: Hopefully, the original decision will be upheld. The industry needs some precedent for correct rulings in copyright infringement cases.  

Spotify’s Appeal of the Mechanical Royalty Rate Increase

Background: Last year, the Copyright Royalty Board (“CRB”) judges decided that music publishers and songwriters will get an increase on their mechanical royalty rates. The timing of this proceeding happened to coincide with the efforts of the music industry to pass the Music Modernization Act (the “MMA”). The digital service providers (“DSPs”), including Spotify, Pandora, Google, Apple, etc. rallied in cooperation with the music industry to pass the MMA. After the MMA was passed, the DSPs (except Apple) appealed the CRB’s decision to increase mechanical royalties.  The appeal is pending. What It Means: The CRB decision provides for a 44% increase in mechanical royalties to songwriters and music publishers, with incremental raises from the current rates until the 44% is reached in 2022. The DSPs supported the passage of the MMA to gain immunity for being sued for copyright infringement for failure to license and pay for all of the music streamed on their services. Once achieving that immunity, they appealed the CRB decision to try to avoid paying fair rates to songwriters. What to Look for in 2020: CRB decisions are historically difficult to overturn, so hopefully the music industry will receive the new rates it was promised. Despite the goliath size and bank accounts of the DSPs, they need to realize they cannot push the music industry around and must pay fairly for the content on which many of the them have built their businesses.  

Passage of the Music Modernization Act

Background: The Music Modernization Act passed in October of 2018, which promised more streamlined licensing procedures for music on streaming services, a new, centralized registration database, and hopefully a better system for creators and rights owners to be paid streaming royalties. 2019 has been all about actually turning these promises into reality. The Music Licensing Collective board was elected to oversee the operations of this new structure, they negotiated the funding for the database with the DSPs, and choose a vendor to build the infrastructure and supply the data (recently revealed to be The Harry Fox Agency). What It Means: There will be a lot of changes in data practice, and a lot of work for creators and rights’ owners to learn a new system and register their works with the new database. What to Look for in 2020: The database is slated to roll out in beta-mode, with it planned to be fully operational by 2021.  2020 will involve a lot of data uploads.  

Taylor Swift’s Master Recordings Dispute

Background: Taylor Swift hit it big while signed to Big Machine Records, and then moved on to Universal Music Group.  Big Machine decided to sell its catalogue of masters to Scooter Braun, backed by some investment funds. Swift and Braun have a longstanding personal beef, and when the sale occurred, Swift took to social media to express her horror at her nemesis owning her masters. Swift stated she was not given the opportunity to buy her masters back. The parties engaged in a public back-and-forth. Taylor announced she will re-record all of her old masters in 2020 once her re-recording restriction from her Big Machine contract has expired. Later, Swift said Braun was blocking her from performing her older songs on the American Music Awards and using the older music in an upcoming Netflix documentary. Another public battle ensued, with Swift ultimately being able to perform as planned.  Now stories have emerged that Swift is denying all licensing requests for her music until she is able to re-record her masters in 2020 and then will resume licensing with masters she owns. What It Means: Regarding the American Music Awards performance, this is the first time that a record label has publicly argued that a recorded television performance violates a contractual re-recording restriction, when normally that restriction is limited to recording new audio masters. When Swift does re-record her masters, it could negatively impact Braun’s recoupment of his investment. This dispute has opened the eyes of many artists as to what they may give up when signing a record deal, and there is a growing trend toward artists seeking to retain master ownership. What to Look for in 2020: Swift will most likely continue with her plan to re-record her masters. More public mudslinging may ensue. Artists overall will increasingly seek opportunities that allow them to retain master ownership.   Overall, 2020 will see a lot of changes in the music industry. Hopefully, the results will be just as exciting as the anticipation for their arrival.    

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Erin M. Jacobson interviewed on the BBC

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Categories: Interview, Music Industry, Music Industry Interviews, Record Labels, Tags: , , , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson, Esq. was interviewed on the BBC World Service show, Business Daily.

The topic of the overall segment was corporate control over creative works, but Erin’s interview was focused on explaining the dispute over Taylor Swift’s master recordings, and begins at about 12:50.

You can listen to the interview here.

 

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Erin M. Jacobson, Esq. on Top of Mind, Sirius XM channel 143

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Categories: Interview, Music Catalogues, Music Industry, Music Licensing, Music Publishing, Record Labels, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

 

Erin was interviewed on the SiriusXM show, Top of Mind with Julie Rose regarding master ownership, re-recording, how artists are affected by this, and Taylor Swift.

You can stream here:

Or listen/download on iTunes Podcasts here.

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Erin M. Jacobson, Esq. on ABC’s Nightline

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Categories: Catalogue Acquisitions, Interview, Music Catalogues, Music Contracts, Music Industry, Record Labels, Royalties, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Erin M. Jacobson, Esq. appeared on the 7/1/19 episode of ABC’s Nightline to discuss the current news issue of Scooter Braun’s purchase of Big Machine Records (and Taylor Swift’s master recordings).  You can see Erin’s segments at 5:40 and 6:30.
Click here to watch!

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

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

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

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Recent Press

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Categories: Press, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Erin was recently interviewed in VoyageLA magazine about how she came to be #TheMusicIndustryLawyer and what she likes to do outside of helping my clients navigate the complex music industry.

Erin was also recently quoted in an article for The Fader:  “Here’s What You Need to Know About Sharing Lyrics Online”

 

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Copyright Terminations: What Rights’ Owners Need to Know

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Categories: Articles, Legal Issues, Music Industry, Music Publishing, Terminations, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

By:  Erin M. Jacobson, Esq.

This article was originally posted on Synchtank.

The window is open for authors and heirs to recapture ownership of their copyrights.  Terminations create a lot of new movement for copyrights in the marketplace and rights’ owners need to be just as knowledgeable as authors and heirs in order to stay competitive.

Statutory Requirements

Statutory terminations come with many complexities, but the basics are as follows:

In the United States, termination of a grant can be effected during a five year period: (1)  Beginning 56 years after the original copyright date of the work for grants made before January 1, 1978; or (2) Beginning 35 years after the date of the grant for grants executed on or after January 1, 1978.*

Both of these categories of termination require that proper notice be sent anywhere between ten and two years before the effective date of termination and notices must also follow strict requirements.  Works for hire and grants by will are not terminable and terminations under U.S. copyright law only apply to U.S. rights.

Outside of the U.S., there are some other countries that have their own rules regarding terminations, most notably, the British Commonwealth countries.  British Reversionary Rights are generally uniform throughout the Commonwealth, but vary slightly per country and must be assessed on a case-by-case basis. Other countries do not have any termination rights included in their copyright laws.

Information on the recapture of music rights usually refers to composition rights only, as whether master recordings rights can be recaptured is the subject of an ongoing debate in the U.S. that will only be solved by litigation or a change in copyright law.

Information on the recapture of music rights usually refers to composition rights only, as whether master recordings rights can be recaptured is the subject of an ongoing debate in the U.S. that will only be solved by litigation or a change in copyright law. The issue here is that, as stated above, works for hire are not terminable, and most recording agreements state that the masters are works for hire for the record company.  However, U.S. law requires that for a work to truly be a work for hire, it must be either created by an employee within the scope of employment, or specially ordered or commissioned by the company, with an agreement in writing stating the work is a work for hire, and the type of work must fall within nine categories established in the law.  The problem here is that artists are not employees of record labels and master recordings are not one of the nine categories required for works to qualify as works for hire.  Until this point, labels have been successful in retaining the masters by arguing the masters qualify as collective works or compilations, and by giving artists a few additional royalty points.  However, at the time of this writing, there is a class action lawsuit pending in California to decide this very issue.

The Real Reason Why Authors and Heirs Want to Recapture Their Rights

Although the legal requirements for termination are imperative to navigating the copyright recapture landscape, most discussions on this topic fail to address why authors and heirs are so keen to exercise their termination rights in the first place.  The answer to this question is that authors and heirs are terminating because they are not happy with their current publisher or label.  This unhappiness normally is caused by the companies’ lack of attention paid to the catalogues, which results in significantly decreased earnings for those catalogues.

Authors and heirs are terminating because they are not happy with their current publisher or label.  This unhappiness normally is caused by the companies’ lack of attention paid to the catalogues, which results in significantly decreased earnings for those catalogues.

Large companies, typically the “majors”, tend to focus their efforts on acquisitions and growth, which is not bad, but they fail to increase staff and training at the same rate as their growth.  This leaves many compositions lost at these large companies because they are not being actively exploited and, in many cases, the staff isn’t even aware of the compositions.  Further, when creators or heirs do try to get a company’s attention, their efforts are often ignored because the company does not want to spend time and resources on low-earning compositions.  To further exacerbate the situation, many of these companies are not even accounting properly to the creators or heirs, and again, won’t take the time to investigate or remedy the situation because their efforts are focused solely on the highest earning compositions and further growth.

On the master side, not only are the royalty rates from the labels paltry, but in many cases, the albums are out of print and not being sold, and therefore the creator or heirs really just want a chance to do something with the music again instead of accepting the music’s fate of being locked in a vault, with the original tapes rotting away, never to see the light of day again.

In my experience, independent publishers tend to receive fewer termination notices because they do a better job with attending to and exploiting their catalogues, and usually make fewer mistakes in collection and accounting.  I work with many independent publishers (both those I represent and those who work for my author/heir clients) who do a fabulous job making sure these works continue to stay relevant and earn income.

Handling Terminations

Some companies think they can prevent authors from terminating their rights by inserting provisions in their contracts whereby the authors waive their rights of termination. However, this practice is completely ineffective because the right to terminate cannot be waived via contract. Some companies also try to prevent terminations by making new, and equally unfair, deals with aging authors and heirs.  I’ve even seen major companies effectively force creators or heirs into a new deal by using the threat of litigation against them when these companies know full well that their opponents do not have the resources to fight to reclaim their rights.

The other tactic companies take is to ignore received notices of termination or wait until right before the effective date to raise objections in an effort to deprive the authors/heirs with ample time to respond.  It’s a common joke throughout the subset of attorneys dealing with terminations that the fastest way to be ignored by a company is to send them a termination notice (or tell them they owe you money).

When rights’ owners receive a termination notice, they should address it and engage good counsel who knows how to deal with the dynamics of these situations.  Typically, once companies can no longer ignore the notices, they then dispatch the same few lawyers to repeatedly make the same narrow deals.  When I represent music publishers, I work with them on specific strategies to address the catalogue at issue and craft a deal that benefits both parties in each situation, whereby the company can retain the work and continue to reap the financial benefits, but whereby the author or heirs also feel their needs are satisfied.

Music will always be the foundation of the music business, but the music business is not the same as it was 56 or 35 (or even 10) years ago. Music has a life and legacy of its own and how these copyrights are handled can either set them up to flourish or be forgotten.

Music has a life and legacy of its own and how these copyrights are handled can either set them up to flourish or be forgotten.

The changing times require changing ways and my practice focuses on this innovation to benefit both the rights’ owners and creators so that both can continue to benefit from these magnificent musical creations.

 

* Technically, section 203 of the U.S. Copyright Law says the window opens at the end of 35 years after the date of execution of the grant, or if the grant covers the right of publication, then at the end of 35 years after the date of publication or at the end of 40 years after the date the grant was executed, whichever is earlier.

Note:  This article does not constitute legal advice.

 Erin M. Jacobson, known as “The Music Industry Lawyer”, represents and protects independent, established, and legacy songwriters and artists (including their heirs and estates), distinguished legacy catalogues, independent music publishers, Grammy and Emmy Award winners, and other music professionals at her law practice based in Beverly Hills, CA.  For more information, visit www.themusicindustrylawyer.com.

 

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Erin M. Jacobson, Esq. to contribute to Synchtank’s Synchblog!

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Categories: Articles, Tags: , , , , , , , , , , , , ,

I am very happy to announce that I will regularly be contributing articles to Synchtank’s Synchblog!

To get started, here is my first article for Synchtank — “Copyright Terminations:  What Rights’ Owners Need to Know“.

Synchtank is a software solution that helps music owners organize, maintain, and pitch their catalogues.  For more information on the services Synchtank provides, click here.  To check out their blog, click here.

 

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