Juneteenth, Black Music Rights, and the Gap Between Rights and Reality

As we celebrate Juneteenth, we commemorate a milestone in American history: the day when freedom, long delayed, finally reached enslaved people in Texas more than two years after the Emancipation Proclamation had been issued.

Juneteenth reminds us of a difficult truth. Rights on paper and rights in practice are not always the same thing.

That lesson extends beyond history. It remains relevant today in industries where creators, entrepreneurs, and professionals must navigate complex systems in order to fully realize the benefits of the rights they possess.

Recently, my accounting firm, Boschan Corp., hosted a panel discussion on Black Music Rights featuring leaders from the music industry, entertainment law, and academia. The conversation explored how Black creators have shaped American music while often facing unique challenges in protecting, understanding, and monetizing their creative work.

One theme emerged repeatedly throughout the discussion: knowledge, representation, and access matter.

When Rights Exist But Understanding Does Not

Music rights are complex. Copyright and trademark ownership, registration, royalty splits, advances, budgets, work exploitation, legislation, and contractual provisions can all affect how creators are compensated.

A creator may possess legal rights. A contract may provide certain protections. Yet if those rights are not properly negotiated in the first place and thereafter understood, enforced, or accurately accounted for and audited, the practical outcome may vastly differ significantly from the expectation. 

"When a deal is offered...its about the opportunity [for the artist] to be heard.... to take care of their families, and create a legacy. That's usually what's told to the artist. But on paper it's something that's totally different." said top talent attorney Ms. Bernie Lawrence-Watkins, Esq. during the Black Music Rights panel discussion.

She continued, "Unfortunately, a lot of Black artists are still signing deals without representation, so they are exploited."

See this and more from Ms. Lawrence-Watkins as she discusses with Southwestern Law School Professor Kevin J. Greene, Esq. why Black artists have been exploited the most in the music industry:

The Importance of Representation and Advocacy

The panel also addressed whether current music industry contracts are fair to Black creators.

The answer was nuanced.

Contracts themselves are tools. Their impact often depends on the negotiating leverage, information, and advocacy available to the parties involved. Several panelists discussed the importance of having knowledgeable professionals at the table - attorneys, accountants, managers, and advisors who can help creators understand both the opportunities and risks embedded in an agreement.

The conversation highlighted a broader reality: outcomes are rarely determined by documents alone. They are shaped by the people who negotiate, interpret, and enforce them.

Watch Ms. Lawrence-Watkins, Universal Music Group's head of legal, Mr. Jeffrey Harleston, Esq., and Professor Greene discuss their differing respective views as to whether current contracts and intellectual property protections are fair to Black creators and who is making money.

Looking Forward

Juneteenth is a celebration of progress, resilience, and opportunity. It is also a reminder that meaningful rights require more than recognition. They require access, understanding, and the ability to benefit from what those rights promise.

The music industry has made significant progress, but the conversation continues.

We are grateful to our panelists for sharing their perspectives and helping advance an important discussion about ownership, compensation, representation, and the future of Black music rights.

Watch the full panel discussion here:

The “But-For” Method Isn’t Controversial — It’s the Law

As an expert in damages disputes, I frequently see opposing counsel attack the “but-for method” as if it were novel, unreliable, or optional.

It’s not.

If you read the case law, you’ll see that the “but-for” framework is not just an economic tool; it is the default legal standard of causation in U.S. law. Courts rely on it to separate recoverable damages from speculation across copyright, patent, and commercial disputes.

With the caveat that I am not a law practitioner and this is not legal advice, below is a refresher for practitioners working in damages, IP, and complex financial analysis:

1. Start with First Principles: The Supreme Court

The Supreme Court has made clear that “but-for” causation is the baseline rule—not a specialized doctrine.

In Comcast Corp. v. National Association of African American-Owned Media, 589 U.S. (2020), the Court held that a plaintiff must show their injury would not have occurred “but for” the challenged conduct. See https://supreme.justia.com/cases/federal/us/589/18-1171/.

The Court emphasized that this burden applies throughout the case, not just at trial. This reflects a fundamental principle: 

If the result would have occurred anyway, it is not legally attributable to the alleged misconduct.

2. In Copyright: Courts Require a Causal Nexus (Not Speculation)

The “but-for” principle is embedded in copyright damages through 17 U.S.C. § 504(b), which allows recovery only of profits “attributable to the infringement.”

The Ninth Circuit’s decision in Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002), is particularly instructive. Full opinion: https://cdn.ca9.uscourts.gov/datastore/opinions/2002/07/25/0035839.pdf

There, the court rejected a claim for indirect profits - even though infringement was undisputed - because the plaintiff failed to demonstrate a non-speculative causal connection between the infringement and the defendant’s revenues. The court held that damages must be grounded in a “tangible nexus,” not conjecture.

In practical terms: No causal link = no damages.

This is simply the “but-for” framework applied rigorously.

3. The Same Rule Applies Across IP (Patent and Beyond)

The same causation principle governs damages across intellectual property law.

In Aro Manufacturing Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964), the Supreme Court defined compensatory damages as the difference between:

• the plaintiff’s actual condition, and
• the condition that would have existed absent the infringement

See https://supreme.justia.com/cases/federal/us/377/476/.

Similarly, in Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995), the Federal Circuit explained that lost profits require proof that the patentee would have made the sales “but for” the infringement. See https://law.justia.com/cases/federal/appellate-courts/F3/56/1538/624381/.

These cases reinforce a consistent rule: Damages must reflect the delta between reality and a properly constructed “but-for world.”

4. Daubert Confirms the Method’s Admissibility

Challenges to the “but-for method” often collapse under basic expert admissibility standards.

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts admit expert testimony based on reliable, testable, and widely accepted methodologies. See https://supreme.justia.com/cases/federal/us/509/579/.

The “but-for” framework easily satisfies this test:

• It is testable (through counterfactual modeling)
• It is widely accepted in economics and law
• It aligns damages analysis with causation requirements

In practice, courts do not exclude “but-for” reasoning. They exclude unsupported assumptions mischaracterized as causation.

5. Federal vs. State Courts: Different Labels, Same Inquiry

Although terminology varies, federal and state courts apply materially the same causation analysis.

Federal courts explicitly use “but-for causation,” particularly in statutory and IP contexts.

State courts may use terms like “proximate cause” or “substantial factor,” especially in tort and contract cases. 

Regardless of jurisdiction, the operative question generally remains identical: Would the claimed loss exist absent the defendant’s conduct?

If yes, it is not recoverable.

6. Where Damages Models Fail

The real issue in litigation is not whether the “but-for” framework is valid but whether it has been properly applied.

Courts routinely reject damages models that:

• Treat correlation as causation
• Attribute all revenue during a period to the alleged misconduct
• Ignore independent drivers (brand value, marketing, other IP, macro trends)
• Fail to isolate the incremental contribution of the alleged infringement

That last point is critical.

The law does not award total revenue. It awards only the portion of profit that would not exist in the “but-for world.”

7. Why This Matters

For litigators and experts, the implications are straightforward:

1. The “but-for” framework is not optional
2. It is embedded in statutory damages regimes (including § 504(b))
3. It is necessary to survive Daubert scrutiny
4. It is essential to avoid speculative damages

When applied correctly, it provides a disciplined, legally grounded method to isolate compensable value, test causation assumptions, and align expert testimony with the applicable law.

Final Thought

The debate over the “but-for method” is often misplaced.

The real question is not whether it should be used, because it *must* be used.

The real question is whether the analysis faithfully answers the only issue that matters: What would have happened in the absence of the alleged wrongful conduct?

Everything else is just narrative, and courts tend to see through that.

VoyageLA Interview with a Damages Expert

Select quote:

Do you remember a time someone truly listened to you?

"Yes – every day. Litigators and other clients hire Boschan Corp. because they want clarity, truth and expert opinions. Listening – on both sides – is part of the value of hiring us and is essential to delivering expert opinions that stand up in litigation."

Click to read the full article:

Or copy and paste this link: https://voyagela.com/interview/life-values-legacy-our-chat-with-cedar-boschan-of-culver-city-highlight/