A Music Lawyer Who Protects Artists, Songwriters, Their Songs, and Their Legacies

[00:00:00] John Reed: The best job I ever had, hands down, was working in a record store over a few summers during high school.

[00:00:07] The store, which actually sold records — vinyl version 1.0 — was an independent mom-and-pop shop. This was the time when the big music megastores were just starting to emerge, and I remember the shop's owner getting a little nervous about the competition moving into town. Not only was the writing on the wall, but because he felt CDs were only a passing fad, it was written in big, bold letters.

[00:00:32] The best shift at the store was Thursday nights when we didn't close until 9:00 pm. Most Thursday nights, I was the only one working, and for the most part, the only person whoever crossed the threshold. I would grab a stool from the back room, drag it behind the sales counter and perch myself between the register and the phonograph attached to the shop's sound system.

[00:00:52] The music companies back then would provide promo albums for record stores to play and encourage sales. We had three decades worth, all on shelves under the counter. It was like my own personal Spotify, albeit analog.

[00:01:07] Music gets me. There were, there still are, riffs and refrains, songs, entire albums, I would play over and over because the lyrics spoke to me or because of my visceral response to the collection of chords, instruments, and voices. As great as the music, I loved studying the album covers, the liner notes, even the labels on the records to learn the names of the people that created that music. Other kids memorized stats on baseball cards. I knew the lead singers, the backup vocalists, the band members, and the producers.

[00:01:42] Today's guest knows singers, performers, and songwriters too, not from a playlist, but personally. She took a passion for music and turned it into a law practice in Los Angeles, ground zero of the music business. Like many of the artists she represents, she's both indie and mainstream. She built her business her own way, playing her own tune.

[00:02:03] I'm delighted to welcome Erin Jacobson, the music industry lawyer, to Sticky Lawyers.

[00:02:10] Erin Jacobson: Hi. How are you?

[00:02:11] John Reed: I am well. I think this is going to be fun. I think we're going to have some fun. I know I'm going to learn a lot from you.

[00:02:16] Erin Jacobson: Awesome. It's definitely going to be fun.

[00:02:19] John Reed: So, I'm really curious. What are your musical tastes, and who's on your playlist right now?

[00:02:25] Erin Jacobson: Personally, I really love older music, and I've been like a lifelong fan of Elvis Presley, the Beatles, The Stones, lots of classic rock, some more obscure genres like Northern Soul and things like that. It's pretty eclectic, but I do make a good playlist. I'll say that.

[00:02:46] John Reed: Where was the influence coming from? Was that something you grew up with?

[00:02:51] Erin Jacobson: Well, I'm still trying to figure that out. My dad did like some of that fifties' rock and roll that he grew up with, Little Richard, Jerry Lee Lewis, and all that kind of stuff. My mom was really more into Frank Sinatra and Jack Jones and Dean Martin and kind of music like that. And so, I don't really know where artists that I like came from, where that connection came from, but I just know that even as a child, Elvis was just my favorite. And the other kids at school totally didn't understand. That's okay because I understood.

[00:03:32] John Reed: I was the kid in school that people could come to and ask, "Hey, do you know this song?" And I covered a lot of generations that way. I mean, my first recollection, the first album I ever listened to, was the American Graffiti soundtrack that my brothers had. And so, I knew Del Shannon before I knew anything else. I knew Beach Boy music before anything else. So, I, I think we probably have similar eclectic tastes, maybe some overlap in there, too.

[00:04:01] When did you realize you wanted to be a lawyer?

[00:04:03] Erin Jacobson: So, I decided that I was going to be a lawyer when I was in college, because I was actually going down a different path and decided to dip my toe into music and because I've always enjoyed it as an appreciator, but I didn't know what there was to do in music. I thought the only way to work in music was being a musician, which I'm not. The university I was attending had a music industry program. So, I took the introduction class that explained what agents do and what managers do and what these things called copyrights are. The agreements that musicians have to sign. And that there are lawyers that handle these copyrights and agreements for musicians. And that just opened a whole new world for me. I thought that was such a cool job. And I said, "I'm doing that."

[00:05:03] I also just really took to the copyrights and the lessons on the contracts. That just really clicked with me. We started hearing all those stories about the artists getting screwed with these big, complicated contracts that they didn't understand and all that stuff. And I just thought the job was so cool that I could do that and work with artists and protect them from getting screwed. And I never looked back after that. That was it.

[00:05:33] John Reed: Most lawyers go to law school. Period. They don't go to law school for "x." And I guess, in all fairness, it's not like a lot of law schools specialize in certain things, but you were able to find a law school that suited your educational needs vis-a-vis this music practice you wanted to go into. Maybe you could talk about that.

[00:05:56] Erin Jacobson: When I was still in college, once I had made that decision that I was going to be a music lawyer, I started immersing myself in the industry right away. So, I declared my minor as music industry. I took all the music industry courses that I could. I became a DJ at our campus radio station, and I had one of the top listened-to shows on the station and had independent bands in the studio with me every week for an interview and a live set. And I did internships at Capitol Records and in radio and different things. So then, when it was time to go to law school, I chose a school that had an entertainment law program. I was in copyright as a first-year law student. I was a research assistant for my copyright professor. I interned at a music publishing company and their business affairs and legal department. And then, I was also president of our entertainment and sports law society, where I organized panels of industry experts to speak to the students. And I was also the student liaison to the ABA Forum on Entertainment and Sports Law and also the Beverly Hills Bar Association, and I met a lot of people. And then, once I graduated and passed the bar, I opened my own practice.

[00:07:20] John Reed: You've done all this fantastic prep work, certainly in college, but then more importantly in law school. One would think you were a hot property. You were ready to go, whether it would be in-house with a publishing company or with a law firm that specializes. Why the decision to go solo and open your own practice?

[00:07:40] Erin Jacobson: I sort of made that decision on the fly. It was 2009 when I graduated. And so basically because we were in the recession, mostly no one was hiring. That was part of it, but then the other part of it was I was getting clients on my own, and I thought, "Why don't I see how that goes?" And then I kept getting clients and kept growing the practice. And here we are years and years later, and I still have the practice.

[00:08:15] John Reed: So, let's talk about those early days, let's talk about the types of artists you were advising and what you were doing for them back then, and then how it's evolved over the years.

[00:08:27] Erin Jacobson: When I first started, most of my clients were small independent artists and advising them on probably smaller publishing deals, recording deals, maybe some licenses, maybe working with a producer or another songwriter or something like that. They were smaller, independent artists.

[00:08:45] But then, as my practice has grown, so has the size and stature of my clientele. While I still do work with independent artists now, I have a lot of Oscar-nominated Grammy, Emmy, Golden Globe-winning artists and songwriters. I work with esteemed legacy catalogs. I work with heirs. I also represent some well-known independent music publishers.

[00:09:12] John Reed: And you're still on your own.

[00:09:13] Erin Jacobson: I still have my own practice. Yeah.

[00:09:17] John Reed: How would your clients describe you? I'm curious as to how you think they view you. If I had one here, I'd ask them, but you're the next best thing. So…

[00:09:27] Erin Jacobson: I think that my clients really know that I protect them and their work and that I always have their best interests at heart. I think they know I really care about them, that I help them get the best deal that they can get. And that I think of innovative solutions to help them achieve success.

[00:09:47] John Reed: And every one of your clients is your favorite artist. Right?

[00:09:51] Erin Jacobson: I actually really like my clients, and that's part of the beauty of having my own firm is that I also get to pick who we take on as a client or not.

[00:10:03] John Reed: And you get all the backstage passes, and you get great seats. Has a client ever written a song for or about you?

[00:10:11] Erin Jacobson: There was an instance, yeah, where someone did write a song about [00:10:15] me. So that was a lovely compliment.

[00:10:17] John Reed: Was it in lieu of payment? I hope not.

[00:10:21] Erin Jacobson: Somehow, I just inspired the song. So that was, it was pretty cool.

[00:10:25] John Reed: That's very, very cool. The core of your practice, as you said, is protecting your clients, their works, their intellectual property. As far as the mechanics go, walk us through the process of copywriting a song, how that's different from licensing it, and the other things that you do to protect that client's work product.

[00:10:48] Erin Jacobson: Copywriting is filing the appropriate paperwork with the U.S Copyright Office based on the details of the work. So, I make the assessments of how that needs to be properly registered. And then, as far as licensing, it might mean a TV show or film or something wants to use a piece of music, in which case I draft and negotiate a license agreement with the entity that wants to use the music. But it also might be where an artist is doing a deal with a record company, or a songwriter's doing a deal with a music publishing company, which might be a licensing situation if the company is not going to take ownership of those works. But it might also be where the ownership is being transferred.

[00:11:44] John Reed: When it comes to enforcement, and I know you're not doing the litigation, how does that happen? I'm very curious as to how instances of infringement in music, how they come to be.

[00:11:56] Erin Jacobson: So usually instances of infringement come to be where somebody hears something and says, "That sounds like my song."

[00:12:05] John Reed: It's just like that? It's just that simple?

[00:12:08] Erin Jacobson: It's usually pretty much that simple. In other cases of infringement where it's not necessarily one person wrote a song that sounds like another person song, but it could be. There's been instances where a song appears in a commercial. Hey, nobody licensed that. So, things like that happen as well. So, it's a different kind of infringement, but it's still infringement when the work is used without permission. But like I said, usually, just somebody comes across it and then we go, "Wait a minute."

[00:12:42] If it is a situation where someone has written, let's say, a new song, but they're not sure about releasing it, or they're in the process of recording or something. At that point, we could bring somebody in to make that assessment, so we're not releasing that song and facing a potential infringement suit or something. And I have raised those issues to clients before, because--

[00:13:08] John Reed: Because you have encyclopedic knowledge of music, that's why. Because you're probably the best arbiter.

[00:13:12] Erin Jacobson: It also depends who's representing you, too, because I don't know if everybody's doing that, but I don't want my client releasing something that we think there's a risk on.

[00:13:22] John Reed: I don't think I can recall a time when infringement wasn't about the music. Does the copyright focus on the music and the lyrics? How does that work? If somebody lifts my lyrics and uses them, is that also infringement?

[00:13:37] Erin Jacobson: There's always two copyrights in a piece of music. There's the composition, which is the actual music, lyrics, melody, et cetera. And then, there is the sound recording copyright of the recording itself. If somebody lifts lyrics. That would be an infringement of the composition copyright.

[00:13:56] John Reed: The question that popped up in my head, specifically with regard] to the dispute between Marvin Gaye's estate over "Got to Give It Up," and the Robin Thicke-Pharrell Williams song, "Blurred Lines." What was the nature of that dispute? Was it the sampling part? Was it the music composition? What was the nature of the issue there?

[00:14:18] Erin Jacobson: Sure. So, there wasn't a sample in that case because the sample is when you actually use a pre-existing recording in a new recording, which could also include the composition. But in this case, it was a song that was written that was accused of being too similar to a previous song that was already written. Then you had the artists of the subsequent songs saying we wanted to write a song like the original song, so that didn't help.

[00:14:54] John Reed: When an artist samples from another artist, is that by permission? Is that some sort of licensing arrangement?

[00:15:01] Erin Jacobson: Correct. It happens a lot of times without licensing, which is an infringement, but the proper procedure is that you get a license to have that sample. So yes, it is supposed to be done with permission.

[00:15:14] John Reed: You and I had an earlier conversation in which you really expressed to me that even as much as you care about your clients and protecting their interests, you have a certain passion for the music itself and protecting it.

[00:15:29] Erin Jacobson: Yeah, well, music is really, it's a universal language that anyone can connect with anywhere in the world, regardless of other circumstances or language barriers of anything like that.

[00:15:44] Music is a feeling medium, and it has important emotional connections to people's lives. There are certain songs that evoke memories or that got somebody through a certain time in their life or that people just have an emotional connection to. And so, there's that aspect.

[00:16:08] And then, as far as the people that create music, when they're creating that music, they're creating it with a part of themselves. And so, protecting that work means not only protecting their personal legacy and their personal contribution but also the legacy of the work itself and what it means to people whose lives that music has affected.

[00:16:31] John Reed: We are learning a lot from Erin Jacobson. We're going to take a quick break, but don't change that dial.

[00:17:34] We are spinning the hits with Erin Jacobson, the music industry lawyer. You are well-known for copyright recapture and termination. And you talked about it earlier. What are those, and how is it that you help your clients in that regard?

[00:17:49] Erin Jacobson: So, there are certain mechanisms in the copyright law that allow for authors or their heirs to reclaim ownership over the music copyrights that they granted away years before in past agreements. Usually, when artists or songwriters are just starting out, maybe they're not signing the most favorable deals, the earning potential of those songs are not yet known. This allows authors or their heirs to reclaim ownership of those copyrights, and there's a very specific set of parameters that's in the copyright law that says when you can get these back, how you get them back, when the notice has to be served, again, a lot of very specific rules. If it's not done right, or you miss the window of when you're supposed to do it, then you lose the right to get those copyrights back.

[00:18:54] For clients, what I do is I can assess whether their works are eligible for this termination, and if they are, then I can prepare and serve the appropriate paperwork and then advise them on what to do with the music once the ownership of those copyrights has reverted back to them.

[00:19:16] And going back to that love of older music that I have, the songs that are eligible for this recapture are generally older songs because the timing starts depending on a bunch of different factors that I won't necessarily get into, but it could be 56 years after the copyright date or 35 years after an agreement, depending on when these songs were done.

[00:19:48] A lot of what we're dealing with here is older music, so I'm perfectly well-suited to handle these issues because I know this older music and I understand these catalogs, but at the same time, I understand what's going on modernly with all the digital exploitation and what's going on in the marketplace. So, then I can properly advise my clients on what the options are what we can do with that music once it's come back.

[00:20:23] John Reed: I never asked any guests to say or reveal client names. But I am curious if there's a story that you can sanitize and tell us about, a matter of which you're most proud in this recapture category.

[00:20:37] Erin Jacobson: There's definitely been some very big hit songs that I handled the termination process for. And one of them, for example, very big hit song. It was really important to my client to get it back. And right after it came back, he ended up getting this really big license for it.

[00:20:58] There was another issue where the client that I was representing, there were other co-owners who were trying to convince my client that they didn't have any rights to the music because it was an heir situation. And I successfully navigated that and got the other side to concede that my client did have an ownership share. And my client just had tears of gratitude on the phone. And that was really rewarding.

[00:21:26] For a lot of these legacy catalogs, when you're dealing with the families, sometimes it's really about the legacy of their parent or grandparent or something like that. It's really important to them to have that music in the family.

[00:21:41] Some people really are just more concerned about the financial aspects of it, but a lot of people are also really concerned about the legacy of their family member. For a lot of people, it's very personal, and it's really nice to be able to help people with that aspect of it and honoring their family member and of the music.

[00:22:04] John Reed: I'm sure you've developed some very deep and special relationships with clients because music is so personal to them, and you're helping to protect it or, in some cases, get it back.

[00:22:16] And I would imagine, Erin, that for many of your artist clients, you may be the first and perhaps only lawyer they've met depending on where they are in their careers. Are you often fielding questions about things that are outside of the scope of your practice for them? Are you the first call? I'm thinking along the lines of the internist, if we're going to bring in an analogy to medicine. The internist can handle what the internist can handle, but then will bring in specialists to handle other things. And the internist encourages the patient to call me with what hurts. I'm wondering whether you encourage that type of first-call relationship with them, again, knowing that you can't handle everything, but you can get them to the right lawyer?

[00:23:01] Erin Jacobson: Yeah, definitely. I, again, going back to what you asked previously about what my clients think of me for, and there's a trust relationship and they know that I have their best interests at heart. And so, a lot of times, it's even something they know that I don't handle, but they still call me to say, "I know this isn't music, but I have an issue with 'x.' Do you know somebody?"

[00:23:33] John Reed: How have you built your practice? Clients were finding you right out of the gate of law school, but in terms of your intentional efforts to build your practice, how have you done that?

[00:23:44] Erin Jacobson: [00:23:45] My clients have always come through referrals, and now they come a lot of times because I am often in the media and speaking, writing articles, or quoted in the trades. A lot of people have read my book, Don't Get Screwed, How to Protect Yourself as an Independent Musician. So, people will come to me through that. The book's available on Amazon, by the way.

[00:24:14] It's really just been organic. I'm involved in my industry, and I have relationships with many colleagues and other industry folks that will refer business to me. And I'm kind of just out in the world. People see me and then come to me to help them.

[00:24:36] John Reed: But you've made the decision to be out in the world. And I'm wondering how intentional, for example, your thought leadership efforts have been. You are quoted in various big-name publications, and you made the decision to write a book. You didn't have to do that, but that was, I would imagine, part of your marketing plan as well.

[00:24:57] Erin Jacobson: Again, it was more organic in the fact that I would start seeing where the gaps were, where there were particular, maybe a particular question that kept coming up or something that people were just really not understanding or something that I just felt was important that people should understand. With the book, people kept asking me for recommendations of a book to get started with. And there are some great music industry books out there, but some of them come from a level where it assumes you know some of the basics already. And so, I just felt like people need to know this. People need to know what copyrights are and why they matter and what they actually mean and what the different royalty streams are, and how those relate to the copyrights.

[00:25:55] I just broke it down in a way that I hadn't seen any other book or resource really do. I have a whole chart for the royalties of what they are, how they get paid, what they're for, what right of copyright they relate to, how you collect them. Because again, it was just one of those things where there's a lot of information to sift through. There's a lot of conflicting information or unclear information on the internet. People need to know what the real information is and have it explained in a way that they can understand it.

[00:26:34] John Reed: And that's you being, you being a resource.

[00:26:36] In recent years, including this year, artists like Fleetwood Mac and Neil Young, Shakira, the Beach Boys, Bob Dylan, Paul Simon have sold their music catalogs and are said to have essentially cashed out. Why are those artists doing it now?

[00:26:54] Erin Jacobson: Totally depends on the person or the catalog. So, in some cases, it might be that they can make the same or more by taking a big cash payout and putting it in a more traditional investment. They want to provide cash to their heirs. Maybe they need cash themselves. There's a variety of reasons. It's really a case-by-case basis.

[00:27:26] John Reed: Would it be fair to say that not all of those were outright wholesale transfers? There may have been some residual interest they maintain or continuing revenue stream. And so essentially, every deal is truly different?

[00:27:39] Erin Jacobson: Yeah. I mean, there's definitely kind of certain parameters; some of them are just a buyout, and others can have continuing royalty streams or income participation. Again, totally depends.

[00:27:55] John Reed: Do you get involved in those types of deals?

[00:27:58] Erin Jacobson: Yeah. I regularly handle catalog acquisitions, and because I'm on the firm side, depending on who my client is, I might be representing a buyer or a seller in a particular transaction. That allows me to have a perspective from both sides.

[00:28:16] John Reed: And it would sound like from what you've described, this might be one of those situations where you go to your bench of experts, and you bring in the financial or investment advisor or the tax specialist or somebody to properly advise the client as part of the transaction.

[00:28:33] Erin Jacobson: Sometimes they have their own people. Sometimes they need people that I bring in. Everyone's buying for somewhat of a different reason, and everybody's selling for somewhat of a different reason, and the terms of the deal really depend on what assets are part of the deal.

[00:28:51] John Reed: I suspect that you spent most, if not all, of your legal career in the age of streaming. I'm interested in your view of the economics of streaming and how it impacts the counsel that you give your clients relative to the deals that they're entering into.

[00:29:09] Erin Jacobson: Streaming is the norm now. But the problem with streaming is that the payouts are very small. So, if you're looking at it on a per-stream basis, you're looking at a fraction of a penny per stream. The economics are more difficult than when you're talking about an album sale or a download. And you also have to be in the large numbers of streams to really be making significant money. Every client's different because some of them are gonna have a career that warrants itself more to streaming and some are not. Of course, we always want the client to be making a successful living from their music.

[00:29:55] John Reed: In the pre streaming days, artists were making money from their record deals and then also making money from concerts if they were performing. If streaming, for most artists, is paying fractions of pennies on the dollar at best, where are performing artists, where are they making their money?

[00:30:14] Erin Jacobson: They're leveraging the internet and trying to get as many streams as they can. You need more streaming numbers to make up the same as what you would have made in album sales, for example. Some artists are turning to licensing. Maybe be making additional money on merchandise or maybe some brand partnerships or things like that. That puts them in a different realm.

[00:30:40] John Reed: And then of course, there's social media, which didn't exist before. So, you can do a lot of your own self-promotion, hopefully, generate interest in your music.

[00:30:48] Some pretty famous artists have died without wills: Prince, Aretha Franklin, Amy Winehouse, Kurt Cobain, Bob Marley. Many of them had substantial music catalogs that then became the unfortunate subject of family battles. I know you don't do litigation, but have you ever been called into those kinds of disputes?

[00:31:10] Erin Jacobson: I have. I've definitely been called in to handle the music aspects of estates to advise the litigators on the music assets and help with the analysis on that.

[00:31:24] And then I also regularly work with my older clients and their estate planners to make sure that their music's properly provided for, and then I also represent heirs in the estate. Because music estates and catalogs, they have their own unique issues. So, I will assist with the management of the catalog going forward, again, depending on whether it's a living client that's older and forward-thinking or where the artist or writer's already passed, and I'm dealing with the heirs to the estate.

[00:31:57] A lot of what happens is making sure what happened or what was supposed to happen with the music actually happens. Like what the deceased person wanted to happen or that the heirs are getting what they're supposed to be getting. I mean, there's been several issues -- really unfortunately -- with the families that are then fighting about the catalog and having to protect a certain heir.

[00:32:26] John Reed: It could really mess up Thanksgiving, you know?

[00:32:35] Along those same lines of acrimony, the public perception of the entertainment industry is that it is ruthless and cutthroat. Is that an accurate description in your observation?

[00:32:48] Erin Jacobson: It really depends who you're working with and who you're dealing with. It can be. There are people that are like that, and there are people that are actually just really good people that are trying] to do something that benefits everybody at the end of the day. So again, just really depends.

[00:33:06] John Reed: Amongst those people that perpetuate the stereotype, how have you achieved your recognition and your place in the industry with those folks? Are you known as a tough negotiator? Have you been underestimated and now you are held in high regard because you've earned a spot there?

[00:33:22] This is where you get to boast as much as you want.

[00:33:25] Erin Jacobson: Maybe all of those things. Again, my interest is protecting my client, and I'm good at what I do. I negotiate what needs to be negotiated for my client. I do my own thing. I use my own judgment, and I do the right thing that needs to be done.

[00:33:44] John Reed: I am a big fan of lawyers who don't just practice law; they reinvent the business of law. They operate their practices in really unique ways. You are delivering services and value and reaching audiences in innovative ways as well. Can you tell us about Indie Artists Resource?

[00:34:04] Erin Jacobson: I can. So, Indie Artist Resource is a business and legal resource for independent musicians that I started when a lot of independent musicians were coming to me. They needed agreements, but they couldn't hire a lawyer because usually, when they're just starting out sometimes for economic reasons, they can't afford a lawyer, or they've never worked with a lawyer. So, they're intimidated by the process.

[00:34:32] I knew that these musicians needed help. And so, I thought, "Well, how can I help them?" And so, I got the idea for Indie Artist Resource. It is a website that offers high-quality contract templates of the types of contracts that independent artists most need and also educational resources to empower them and have agreements to protect their music when they're still at the level that they're not quite ready to hire an attorney.

[00:35:05] John Reed: So, let's go through this. What's the website?

[00:35:07] Erin Jacobson: Indieartistresource.com.

[00:35:09] John Reed: Easy enough. The book?

[00:35:11] Erin Jacobson: The book is called "Don't Get Screwed: How to Protect Yourself as an Independent Musician," and that is available on Amazon.

[00:35:19] John Reed: Okay. And I am sure there are people listening that are going to want to learn more about you? Where can we point them?

[00:35:27] Erin Jacobson: Yes. So, the website for my firm, which also has a form to contact me if anyone's looking to do that, is themusicindustrylawyer.com.

[00:35:40] John Reed: It just rolls off the tongue.

[00:35:42] Erin Jacobson: Themusicindustrylawyer.com.

[00:35:46] John Reed: Erin, this has been just fascinating. Enlightening. I've learned a lot, and I appreciate you taking the time. I'm grateful for you sharing with us.

[00:35:54] Erin Jacobson: You're welcome. Thank you for having me. It's been fun. Just like we said, it was going to be.

[00:35:59] John Reed: See. We fulfilled the promise.

[00:36:03] And thanks to all of you for listening. If you haven't already, subscribe to Sticky Lawyers, wherever you get your podcasts. And give us a rating or leave us a review; help us grow our following. Also, please visit stickylawyers.com, where you'll find public episode transcripts and additional information about our guests.

[00:36:23] You can even leave us a voicemail right there on the website, and you can recommend a standout attorney who might be a future guest. Until next time. I'm John Reed, and you've been listening to Sticky Lawyers.