The Lien: A Last Resort to Collect on a Debt - Guest Post by Attorney Kevin Casini, Esq.

Top Connecticut attorney Kevin Casini, Esq. helps us understand the concept of a lien in the guest post below:

Judgment liens are the final step in collecting on a civil judgment. When a court issues a judgment, whether by a judge or verdict by a jury, it doesn't automatically force the debtor to pay. If the debtor doesn't pay, it is the responsibility of the creditor to enforce the judgment. Most enforcement happens when a creditor finds assets belonging to the debtor to be taken to satisfy the judgment. This begins with a judgment lien.

A judgment acts like a metaphorical cloud hovering over the debtor's personal property in the state. A judgment is unenforceable against personal property until it has been attached. The property can include bank accounts, stocks, bonds, vehicles, or other equipment.

Copyrights that are registered with the United States Copyright Office ("USCO") can be liened, through registration at the USCO of the lien. Unregistered copyrights cannot.
 
There are different types of liens: consensual, statutory, and judicial. Consensual liens include mortgages and car loans, while mechanic's liens and judgment liens are examples of statutory and judicial liens.  Once attached, they work similarly to consensual liens, allowing the creditor to seize the property to satisfy a judgment.

Some liens can be discharged too, depending on circumstances.  

• Judgment liens: If there is no equity in the property to cover the lien, it may be discharged.  

• Nonconsensual liens: Liens placed on the debtor's property without their consent, such as certain tax liens or mechanic's liens, may be eligible for discharge in bankruptcy. 

• Voluntary liens: In some cases, voluntary liens (mortgages, car loans), can be discharged through bankruptcy. The notes riding with these can also be written down pursuant to the fair market value ("FMV") of the asset that is taken as collateral. 

A judgment lien typically extinguishes after 20 years.

To establish a lien on real estate, it must be recorded on the land records, but the process varies by state. If a judgment lien is attached to real estate, the judgment continues to accumulate interest at a higher statutory rate (e.g., 17.5% in the state of Connecticut in the United States) than market savings or mortgage rates, and the property's value usually increases over time. The lien is either satisfied through refinance, sale or the property to which it is attached, or by satisfaction. 

In some places, the order in which liens are recorded determines their priority. In other cases, certain creditors always have priority, and the government always has priority. The same principles apply to security interests in personal property. The creditor who perfects their security interest first usually has the highest priority. To perfect a judgment lien, it needs to be attached to property.

The way of attachment varies depending on the type of personal property. The way a judgment attaches to personal property is different from how a lien attaches to real estate. Real estate is immovable, and ownership is determined by land records. A judgment lien attaches as soon as it is recorded in the land records. Personal property, however, is movable, and there is usually no central registry for ownership except for automobiles.

Check with an attorney in your state to understand your rights and responsibilities when it comes to judgment liens. 

About The Author

Kevin Casini Kevin is an attorney and consultant in New Haven where he’s been recognized by New England SuperLawyers™ for his work in civil litigation, copyright, and trademarks, and a music business consultant with his company Ecco Artist Services.

Kevin is VP of Business and Legal Affairs for RME, (www.rme.com) the digital-first, modern rights organization that enables fair and accurate payments for creators and rightsholders.

In practice, Kevin has boasted a talented client roster of award-winning, Grammy nominated, gold and platinum certified artists, writers, producers, & DJs, and he teaches copyrights, music law, and entertainment law at Quinnipiac University School of Law. 

He has been speaker, moderator, and panelist at conferences from Austin to Boston, and has advised companies, firms, and governmental agencies on case law, new legislation and proposed legislation, and best practices.

Kevin is a member of the Recording Academy, Copyright Alliance, the Americana Music Association and serves on the advisory board of SONA and on the nominating committee of the Boston Music Awards.

He is a graduate of the Berklee College of Music. 

Follow Kevin on Twitter @KCEsq

Copyright Infringement Remedies & Apportionment

It was my great pleasure to meet and speak yesterday with several copyright infringement experts at the Beverly Hills Bar Association.

L-R: Robert F. Helfing - Partner, Sedgwick LLP, Karen Vogel Weil - Partner, Knobbe Martens, Professor Richard Walter - Associate Dean, UCLA School of Theater, Film and Television, Cedar Boschan - Forensic Accountant and Expert Witness, Boschan Corp., Vera Golosker, Esq. - Attorney, Pierce Law Group LLP

L-R: Vera Golosker, Esq. - Attorney, Pierce Law Group LLP, Cedar Boschan - Forensic Accountant, Boschan Corp., Robert F. Helfing - Partner, Sedgwick LLP, Karen Vogel Weil - Partner, Knobbe Martens, Professor Richard Walter - Associate Dean, UCLA School of Theater, Film and Television

For those of you who missed this great program, below is an example of one of the visual aids I presented concerning apportionment:

Also, the program will be available to stream soon from the Beverly Hills Bar Association here.

Five Things to Consider Before Filing a Music Copyright Case

By Gerard P. Fox, Esq.

Gerard P. Fox, Esq. and his firm
handle general business, contract
and IP litigation across the
entertainment industry and
beyond.

Attorney Gerard P. Fox has acted as lead trial counsel for corporate clients such as Vivendi and Clear Channel. Mr. Fox has also represented high profile entertainers including Madonna, Anita Baker and the Isley Brothers.  

From hiring experts to damage awards, in his post below, Mr. Fox shares some very useful tips from his years of copyright litigation experience.  For a personalized consultation, contact the Law Offices of Gerard Fox and also check out his Fox's Litigation Strategies Blog.

1.      In my opinion the Federal District Courts have been improperly applying a quantitative and not qualitative copyright analysis in music and film cases. This means that they take the totality of your copyrighted work which you claim has been infringed, and hold it up against the totality of the infringing work and actively look for dissimilarities.  This is incorrect under the law because in truth a song often includes many small, integrated and unique copyrightable works. Unfortunately, because the courts are taking this approach, it is much harder to win a copyright case in district court.  I tried one of the last published wins where I represented an artist claiming a part of their song was infringed. See Three Boys Music (Ronald Isley) v. Michael Bolton.  It’s not common.

2.     You will need to hire a musicologist up front.  If you want to have any chance of negotiating an early settlement or defeating an early motion for summary judgment (see below), you will need to retain an accomplished and respected musicologist. First, you should secure their independent opinion as a consultant, then if their opinion is one you respect and one that supports your contentions you should retain them as a formal expert.  Good musicologists, who are respected by defense counsel and the court, will usually ask for an up front retainer of no less than $5,000 or $10,000. Keep in mind that this retainer is not a cap of their total billings.  If the case proceeds through to depositions, summary judgment and trial, the musicologist would likely charge you upwards of $25,000. 

3.     Another consideration is that the defendants will most assuredly make an early motion for summary judgment wherein they will argue that the infringed elements of your song are common and not unique, and that the two musical works are not substantially similar.  They may make other arguments that are common to these type cases, but these are the two most likely arguments.  In making these arguments, they will put forth cases that move away from the proper application of Copyright law to a quantitative analysis of the works.  It is imperative that you retain attorneys who have a deep and up to date understanding of the case law, legislative history and this process to have any chance of defeating this type of motion.  This is no area for a general practitioner.  Defeating this summary judgment motion is essential, because if you do, which is rare in these cases, you will have all the leverage, as the defendants would be left to face a public jury trial.

4.     The prevailing party may be awarded their attorney’s fees under Copyright law.  Under 17 U.S.C. § 505 “the court may also award reasonable attorney’s fees to the prevailing party” in a copyright infringement case.  This is a huge issue to consider if you are the artist because if you lose, you could be ordered to pay hundreds of thousands of dollars of defense fees.  Now, awarding attorney’s fees and costs is discretionary with the district court judge, and many of these judges will NOT award the defendants their fees even if they win, on account of their very human concern about the financial devastation such an award would cause the artist, but this is a risk.

5.     Finally, when it comes to estimating your damages, you will not be awarded all of the infringing defendants’ net profits from the infringing distribution and use of the song, but an apportioned amount.  17 U.S.C. § 504(b) provides that the defendants are entitled to prove that certain elements of the profits are “attributable to factors other than the copyrighted work.” See Mackie v. Rieser, 296 F.3d 909, 915–16 (9th Cir.2002) (In the Ninth Circuit, on a claim to recover profits that are attributable to the copyright infringement, a plaintiff must show that the infringement itself, that is, the use of the plaintiff's work, was causally linked to the gross revenue claimed.).  This means that the defendants will argue that their notoriety, other songs on an album, the marketing behind them and their songs, the market that pre-exited for their music and other non-infringing parts of the song at issue were responsible for most of the profits earned, and that you should only be awarded a small apportioned amount of the net profits.  Of course, most defendants are not truthful about their actual net profits and will try to hide the true amount of their profits. To combat this it is important that you hire a forensic accountant who is knowledgeable about the music industry, such as Green Hasson Janks, to figure out the actual net profits, and then use your musicologist and maybe another music industry expert to argue that the piece of music stolen from you drove the sales and as a result defendants’ profits.

# # #

Gerard ("Gerry") Fox graduated from Georgetown Law School, magna cum laude, and earned an accounting degree from the University of Richmond. Mr. Fox acted as lead trial counsel for clients such as Vivendi, Clear Channel and Dow Chemical.

Gerry started his career at Covington & Burling, followed by Kaye, Scholer, before forming Fox & Spillane, where Mr. Fox honed his trial skills for twelve years. Four years ago, Gerry began the Law Offices of Gerard Fox.

Gerry handles General Business Litigation, Contract Litigation and Intellectual Property Litigation across the entertainment industry and beyond.

Gerry is admitted to practice in Maryland, Washington, D.C., California, has served as a media commentator, and wrote the book “Sue the Bastards.”

Show Me the Money:Four Key Streams of RevenueFor Professional AthletesGuest Post By Jaia A. Thomas, Esq.

Are you a professional athlete?  Do you work with one?  In her guest post below, sports and entertainment attorney Jaia A. Thomas shares with you her expert knowledge about how pro-athletes earn contingent and guaranteed compensation.  Need help maximizing these revenue streams?  Contact Jaia!

Jaia A. Thomas, Esq.

SHOW ME THE MONEY:

FOUR KEY STREAMS OF REVENUE FOR PROFESSIONAL ATHLETES

1).        SALARY - The bulk of a professional athlete’s income is generated from the salary provided for by their team. The salary structure in professional sports varies depending on the league. However, the salary structures in MLB, NBA and NHL contracts are similar in the sense that they provide guaranteed revenue. The salary structure in an NFL contract, on the other hand, does not provide guaranteed revenue, meaning the players who are cut are not eligible to receive their salary from the team. It is worth noting that the NFL does, however, offer players the opportunity to receive additional income through various conditional and non-conditional bonuses:

• Signing Bonus - This is a non-conditional bonus, paid once the player signs his contract.

• Roster Bonus - This is a conditional bonus, paid only if a player is still on the active roster of the team at a specific date.

• Workout Bonus - This is a conditional bonus, paid only if a player works out at the team facilities during the off-season.

2).        ENDORSEMENTS - From sneakers to credit cards to home insurance, there are very few products and services professional athletes haven’t endorsed. Lebron James currently receives over $40 million in endorsement income from Nike, Coca-Cola, Samsung and McDonalds. Professional athletes receive a considerable sum of revenue every year from endorsement deals. These deals usually vary in regards to performance related pay structures. However, payment is usually contingent not only on player performance on the field but also player performance off the field. All endorsement contracts contain a ‘morals clause,’ making payment contingent on an athlete’s ability not to act in a way that significantly devalues the endorsement or embarrasses the company. It is also worth noting that many companies are now offering stock, ownership rights and a percentage in company sales as opposed to traditional monetary compensation.

3).        EVENT EARNINGS/WINNINGS - In such sports as golf, tennis and boxing, where players are not employed by a specific team, they earn money through event earnings. However, even in those sports where players are employed by a team, players can earn additional revenue from event winnings. For instance, in 2012 the Patriots players earned an additional $62,000 each as part of the NFL’s playoff shares and even though they did not win the Super Bowl, they did receive an additional $44,000 for making a Super Bowl appearance (the Giants players received $88,000 each).

4).        APPEARANCE FEES - From Eric Berry (Kansas City Chiefs Defensive Back who charges $5,000 for an appearance or speaking engagement) to Robert Allen Dickey (Toronto Blue Jays Pitcher who charges $20,000 for an appearance), athletes frequently earn additional revenue and income from speaking engagements and appearances.

Jaia A. Thomas is a sports and entertainment attorney, focused on transactional and intellectual property matters. She is a graduate of Colgate University (BA) and The George Washington University Law School (JD). She also holds a Certificate in Television, Film and New Media Production from University of California, Los Angeles. She is the author of “Entertainment Law: The Law Student’s Guide to Pursuing a Career in Entertainment Law,” available via Amazon and Barnes & Noble. For more information: www.jathomaslaw.com or @jaiathomaslaw. 

A Well Kept Secret of Powerful Attorneys

Attention attorneys:

Are you regarded as one of the most powerful attorneys in your field? For example, did the Hollywood Reporter feature you in its 2010 Power Lawyers list?

If you answered “no,” consider a well-kept-secret from many of the Hollywood Reporter’s 2010 Power Lawyers:

What do so many powerful attorneys have in common? They know that:

1. It isn’t enough to know everything about intellectual property law, or the be a suave litigator

2. To be a power attorney, you must build a reputation of getting your clients a bigger piece of the pie

3. The most powerful attorneys seek the most help - getting lots of clients a bigger piece of the pie is not something you can do alone

To whom do powerful attorneys turn to gain leverage? The well-kept secret is a trusted auditor.

I know, since I am the auditor trusted by attorneys on many a “Power" list, including The Hollywood Reporter's:

However, few attorneys besides the upper echelon understand the power of knowledge that an auditor can provide. Those attorneys who appreciate the value of a compliance inspection typically have no idea that the decision to advise a client to audit rests squarely on their shoulders. (Often, if an attorney does not suggest an audit, nobody will - not even a business manager, unless the business manager happens to do audits... which presents a conflict of interest, incidentally.) Finally, when an attorney does realize that the decision to audit is largely hers, she may hesitate to advise a client to audit due to a fear of the unknown – unknown costs, unknown impact on business relationships and unknown recoveries.

This is why, if you represent someone who receives contingent compensation, it is crucial that you find at least one auditor you trust, who will:

· Help you figure out which cases require audits and which do not
· Advise you during negotiations of accounting clauses and definitions
· Take the stand and testify in the event of a royalty dispute that enters a litigation phase
· Perform due diligence and valuations of intellectual property
· Consult on bankruptcy and divorce cases that involve intellectual property
· Prepare royalty statements
· Conduct audits to:

o Recover your client's unpaid royalties or profits

o Ascertain compliance with marketing restrictions

o Identify breaches of contract

o Gain leverage for negotiation purposes

Building your team of experts now will give you the power to secure your clients royalty and profit entitlements and lay the foundation for your rise to powerful deal making and victories. Don't delay!