Apple Music Podcast: Cedar Boschan on Music Royalties

Thank you to "Riches and Rhythms," for having me guest on your podcast.  It was a pleasure to speak with Stonebridge financial advisor Tyler Martin and Tristar business manager Peggy Stephens about music royalty audits, IP valuation and AI.

Link to podcast: https://apple.co/3uL14Qu

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

Bold Journey Magazine Interviews Cedar Boschan

I enjoyed recently being interviewed by Bold Journey magazine, because it gave me time to reflect on one of the key skills needed to be a top forensic accountant: communication. 

I truly appreciate the mentors and consultants who helped me on my journey to be a better communicator, especially Fred Wolinsky, CPA, Jennifer Wilson, and David Zyla.

If you are interested in joining my team at Boschan Corp., or engaging our firm, you will find that we accord greater emphasis on communication than other accounting firms.  Click here to apply.

To all readers: What communication techniques, tactics and skills do you think are under-or-over-rated when it comes to accounting services?

Exploring the Delayed Discovery Doctrine, Doctrine of Estoppel, and their Implications on Contesting and Objecting to Incoming Profit Participation Accountings and Royalty Statements

Your favorite royalty auditor and forensic accountant is here to make sure California attorneys know of the potential application of the delayed discovery doctrine and the doctrine of estoppel in contesting incoming profit participation accountings or royalty statements, notwithstanding contractual or statutory limitations. I believe such legal doctrines, along with the relevant cases I will highlight, provide compelling grounds for certain creative and licensor clients to challenge such accountings or statements.

1. Delayed Discovery Doctrine: The delayed discovery doctrine allows for the tolling or extension of limitations periods when a plaintiff could not have reasonably discovered the existence of a claim. It recognizes that in certain situations, a plaintiff may be unaware of the facts giving rise to a cause of action until a later date.

By applying the delayed discovery doctrine, our clients may be able to argue that they were not reasonably aware of the inaccurate or improper profit participation accountings/statements until a later point, beyond the contractual or statutory limitations. This would provide them with an opportunity to contest and seek redress for the extended period covered by the accountings or statements.

2. Doctrine of Estoppel: The doctrine of estoppel, in the context of profit participation accountings and/or royalty statements, can block entertainment companies and licensees from imposing statutory or contractual limitations on audit or other damages claims, if they have previously acted in a manner inconsistent with the position that such claims shall be limited. Estoppel arises when a party's prior conduct or representations reasonably induced another party to rely on those actions to their detriment.

Applying the doctrine of estoppel, our clients may argue that a company's past conduct, representations, or acceptance of actions misled them into believing their rights were being properly accounted for, and as a result, they refrained from auditing or taking legal action within the contractual or statutory limitations periods. This would potentially estop the other party from invoking those limitations to shield themselves from our clients' challenges.

Relevant Cases: I would like to draw your attention to two notable cases that support certain arguments for delayed discovery and motions to estop a company from imposing limitations on your clients audit and damages claims:

1. Weatherly v. Universal Music Pub. Group, 23 Cal. Rptr. 3d 157, 125 Cal. App. 4th 913 (Ct. App. 2004). This case showed that conducting an audit is not necessary to reach the level of diligence required to make delayed discovery claims.

2. Wind Dancer Production Group v. Walt Disney Pictures, 10 Cal. App. 5th 56, 215 Cal. Rptr. 3d 835 (Ct. App. 2017): This case involves a dispute over profit participation accountings and the application of the doctrine of estoppel. It establishes that a party's acceptance, authorization, or prior conduct can estop them from using contestability clauses and written amendment clauses to defend against claims challenging the accuracy of profit participation statements, thereby allowing for a longer contestability period.

Conclusion: Given the potential application of the delayed discovery doctrine and the doctrine of estoppel, along with the persuasive precedent set by the mentioned cases, it is crucial that you, as counsel to profit participants or royalty recipients, thoroughly explore these legal doctrines to contest the incoming profit participation accountings/statements for periods longer than the contractual or statutory limitations allow. By leveraging these arguments, we can effectively advocate for our clients' rights and pursue a fair resolution.

I would greatly appreciate the opportunity to discuss these matters further with you. Call my office to clear conflicts for a consultation (424) 248-8866.

And, if you know of other important cases, please comment!

Understanding Cumulative Profit Participation Accountings

Cumulative accountings refer to a method of calculating financial transactions that spans over an extended period. Instead of treating each individual transaction separately, cumulative accountings aggregate various transactions, creating a comprehensive record. This approach is commonly employed in situations where it is impractical or inefficient to account for each transaction individually.

It is the traditional approach for film and TV industry profit participation accountings as well as joint venture, certain merchandise statements and/or 360-degree accountings in the music and games industries.

See the below Screenshot for an example of a cumulative accounting (for a film to a producer):

To learn about profit participation audits, please click here.

Audit and Objection Notices May Be Coming Due Due this Summer

 

If your client's accountings are rendered 90 days following the end of the semiannual period ended June 30, 2023, you usually must render a notice of objection prior to September 30 in order to reserve your client's right to audit his/her/its 2020 H1 statement.  Confusing? Yes, it is very confusing!

Call my firm Boschan Corp. for help at (424) 248-8866 or learn more about our royalty audits by clicking here. Please do not wait until September.  Your client's rights could expire sooner, depending on the relevant contractual language and statutes.