Monday, August 24, 2015
LA Calendar: October 17, 2015
Labels:
2015,
Beverly Hills Bar Association,
Cedar Boschan,
events,
Gould School of Law,
Institute on Entertainment Law and Business,
Kent Liu,
MCLE,
Tess Taylor,
Todd Brabec,
University of Southern California,
USC
Saturday, June 20, 2015
#Apple
If you are in interactive development, the below headlines about Apple may be of interest:
Labels:
Analytics,
App,
Apple,
brand,
commission,
developers,
game,
licensing,
royalties,
subscription
Top Three: E3 Edition
Below are the Top 3 #E3 items shared in our @RoyaltyExpert Twitter feed:
|
Cedar Boschan and Evan Van Zelfden @gamelawpro at the Video Game Bar Association #VGBA #E3 cocktail reception sponsored by @LathamWatkins |
- A day of surprises at the start of #E3 | VentureBeat
- EA: "We have to start building new #IP that might feel like a big risk today" | gamesindustry.biz
We extend an invitation for those of you visiting the next E3 event in Los Angeles:
Labels:
Cedar Boschan,
drinks,
E3,
Electronic Arts,
Evan Van Zelfden,
Game Law Institute,
IP,
VGBA,
Video Game Bar Association
Tuesday, May 26, 2015
Los Angeles Calendar: June 25, 2015 Music Publishing Valuation Panel
The Association of Independent Music Publishers will present music valuation panel discussion on June 25 at Lawry's in Beverly Hills, California.
Registration is now open - click here to register!
AIMP Catalog Valuation Panel: Beyond the MultipleThursday, June 25 at 11:30 amLawry's Restaurant in Beverly Hills, CaliforniaTickets & Information: Click Here
Join the AIMP for lunch as speakers delve beyond the multiple to reveal how parties from buyers to banks price music assets. Music valuation expert and AIMP Treasurer Cedar Boschan will moderate this highly informative discussion among world class valuation experts, so mark your calendars for June 25.Registration is now open - click here to register!
AIMP Catalog Valuation Panel: Beyond the MultipleThursday, June 25 at 11:30 amLawry's Restaurant in Beverly Hills, CaliforniaTickets & Information: Click Here
Speakers:
Jason Somerville, Managing Partner, EIG
|
Josh Gruss, CEO, Round Hill Music
|
Dan Coleman, Managing Partner, Modern Works Music Publishing |
Cedar Boschan, Founder, Boschan Corp |
Labels:
Cash Discount,
Catalog valuation,
Cedar Boschan,
Copyrights,
Derek Crownover,
EIG,
Expert,
investment bank,
IP,
multiple,
music,
Net Present Value,
Net Publishers Share,
NPS,
Publishing,
Round Hill,
valuation
Friday, May 8, 2015
Maximize Future Marital Settlement Agreement (MSA) Royalty Earnings with these Drafting Tips from Cheryl Hodgson, Esq.
Trademark, copyright, music law & digital media attorney Cheryl Hodgson of Hodgson Legal |
The best family law
attorneys know when to include outside experts on their team. When it
comes to intellectual property assets, family lawyers turn to attorney Cheryl
Hodgson of Hodgson Legal for her expert advice.
As part of our collaboration geared towards helping family lawyers and their clients navigate the arcane world of intellectual property assets, we invited Ms. Hodgson to share three key drafting tips for family lawyers to consider in cases when the marital assets include royalties:
As part of our collaboration geared towards helping family lawyers and their clients navigate the arcane world of intellectual property assets, we invited Ms. Hodgson to share three key drafting tips for family lawyers to consider in cases when the marital assets include royalties:
1.
Audit
rights. Audit rights are a
vital component to any agreement that includes payment of royalties, whether or
not a dissolution is involved. Without the direct audit rights as well as the
right to participate in an audit of the source of the income stream, there is
no means by which to verify the accuracy of accountings from an ex-spouse, or
payments received by the ex-spouse. Moreover, without an audit to identify
an ex-spouse’s non-compliance with the marital settlement agreement (“MSA”), it
can be difficult or impossible to identify evidence to support legal action and
hold the ex-spouse accountable for failing to properly pay. Therefore, one
should always include a thoughtful audit clause in the MSA that grants access
to the contracts that create the income stream. Moreover, rights to piggyback on direct audit rights are imperative. (See this post for more audit clause drafting tips.)
2.
Earnings
Periods. The MSA should
address dates governing receipts and payments prior to the date of dissolution
since payments may be earned long before they are received. For example,
in the case of foreign performance royalties from the broadcast of music on
television and in film, earnings during the term of the marriage may not be
received or paid in the United States for a year or even longer.
3.
Transfers
of Title. A
court order detailing rights in the divided assets should be drafted in a
manner that is both clear, detailed, and binding upon third party payees of
royalties. Entertainment related companies are often loathe to make
changes in existing payment instructions without clear agreements, letters of
directions, and in many cases, a court order that clearly identifies the assets
and the parties covered.
# # #
Don’t wait for the next
post in our ongoing collaboration – read more from Ms. Hodgson today on her own website. Better yet, for a personalized
consultation, call Ms. Hodgson today at 310-623-3515 and follow her on
Twitter @CherylHodgson.
Labels:
asset,
assets,
audit,
Cheryl Hodgson,
community property,
copyright,
divorce,
family,
Hodgson Law,
intellectual,
marital,
MSA,
rights,
royalties,
settle,
settlement,
title,
transfer
Monday, April 13, 2015
Mark Your Calendar: Cinco de Mayo
The Recording Academy and California Lawyers for the Arts will present a music industry panel discussion May 5 at The GRAMMY Museum in Downtown, Los Angeles:
The Legal Landscape for Compensating Content CreatorsTuesday, May 5 at 6:00 pmThe GRAMMY Museum in Los Angeles, CaliforniaTickets & Information: Click Here
The below experts will discuss why music revenue and royalties are at all time lows, the history of music distribution, how content creators (and artists) are paid, the applicable laws and legislation, and the present and future landscape for creating and selling music.The Legal Landscape for Compensating Content CreatorsTuesday, May 5 at 6:00 pmThe GRAMMY Museum in Los Angeles, CaliforniaTickets & Information: Click Here
Panelists:
- Jay Cooper, Esq., Greenberg Traurig LLP
- Dina LaPolt, Esq., LaPolt Law PC
- Cedar Boschan, Boschan Corp. & Auditrix, Inc.
- Edwin McPherson, Esq., McPherson Rane LLP
- Keith Cooper, Esq., de la Peña & Holiday LLP
The museum entrance is on Figueroa, between The Farm of Beverly Hills and Flemings.
Paid parking is available in nearby public lots.
Click here for more details.
Labels:
2015,
California Lawyers for the Arts,
Cedar Boschan,
Cinco de Mayo,
Compensating,
Content Creators,
Dina laPolt,
Edwin McPherson,
Esq.,
Jay Cooper,
Keith Cooper,
May 5,
The Recording Academy
Sunday, April 5, 2015
2015 Quarter 1 Top 10 @RoyaltyExpert
Below are the items that had the highest engagement during the first quarter of 2015 on our RoyaltyExpert Twitter feed:
- February's digital console sales drop 3.7% http://t.co/Th9E0U85z4
- Spotify launches today on PS4 and PS3 with PlayStation Music http://t.co/YxoKVXG9v1
- Allocation of Copyright Damages for Co-Owners - In re Isbell Records, Inc. | McDermott Will & Emery - JDSupra http://t.co/a3HNW0EHR0
- Boeing Patents Force Field Technology http://t.co/xsPcM8gRc6
- Machinima gets another $24 million in funding from Warner Bros. http://t.co/1mQxC93Tto
- GameMaker Studio creator acquired for $16.4 million http://t.co/emDdnZmLkm
- Why Being Under-Funded Could Actually Help Your Business http://t.co/GquGaEsvl5
- 20 Percent Of Mobile Gamers Are Mobile-Only | alistdaily http://t.co/sbbpOwxKpT
- 15 Stephen Hawking Quotes That Will Change Your Life http://t.co/xRKZe1iy10
- Physical Game Sales Hit 24-Year Low in Japan http://t.co/scVOe0UWkS
Labels:
Boeing,
co-owners,
console,
copyright damages,
game sales,
GameMaker,
Gamers,
Isbell,
japan,
Machinima,
mobile,
patents,
Playstation Music,
ps3,
ps4,
Warner Bros.
Saturday, March 28, 2015
Introducing Boschan Corp.
Dear readers,
It is my great pleasure to announce that audit and forensic expert services successfully launched this week at Boschan Corp., the sister company of Auditrix, Inc.
Boschan Corp. is dedicated to empowering attorneys to optimize client claims / counterclaims through:
Personally speaking, I am thrilled to return to an entrepreneurial role focused on music, IP, interactive and other select clientele, not to mention a commute that saves hundreds of hours!
Please update your contact records as follows:
Cedar Boschan
President & CEO
Boschan Corp. & Auditrix, Inc.
8383 Wilshire Blvd.
Suite 800
Beverly Hills, CA 90211
Web: Boschan.com
Tel: 424-248-8866
E-m: clientservice@boschan.com
I hope to hear from and see you soon!
Have a wonderful week ahead,
Cedar
It is my great pleasure to announce that audit and forensic expert services successfully launched this week at Boschan Corp., the sister company of Auditrix, Inc.
Boschan Corp. is dedicated to empowering attorneys to optimize client claims / counterclaims through:
- Contract and royalty audits
- Damages, property and restitution valuation
Personally speaking, I am thrilled to return to an entrepreneurial role focused on music, IP, interactive and other select clientele, not to mention a commute that saves hundreds of hours!
Please update your contact records as follows:
Cedar Boschan
President & CEO
Boschan Corp. & Auditrix, Inc.
8383 Wilshire Blvd.
Suite 800
Beverly Hills, CA 90211
Web: Boschan.com
Tel: 424-248-8866
E-m: clientservice@boschan.com
I hope to hear from and see you soon!
Have a wonderful week ahead,
Cedar
Labels:
Boschan Corp.,
damages,
forensic accountant,
royalty audits
March 2015 Music Business Top Ten
Here are the top ten music industry highlights from our Auditrix twitter feed:
- Cheryl Hodgson moderated a fantastic panel discussion about brands and music at the California Copyright Conference:
- By David Oxenford, who represents #broadcasters: Songwriter' Equity Act Reintroduced - What Does It Propose?
- Hollywood Reporter: We nominated our favorite power lawyers!
- Daily Mail Online: Jay-Z to pay Swiss jazz musician 50% of royalties after 'stealing' his instrumental for 'Versus'
- Fast Company: Spotify Unveils A Bold New Brand Identity
- New York Post: Spotify to spend $1B on renewal deal with Universal Music
- Billboard: 'Blurred Lines' Trial Verdict: Jury Rules Against Pharrell Williams & Robin Thicke
- Disruptive Competition Project: Transparency at the Intersection of Music Licensing and Antitrust
- Sonicbids: 5 Not-So-Obvious Revenue Streams for Musicians
- Digital Music News: 12 Reasons to Fire Your Bandmates
Labels:
Antitrust,
Blurred Lines Trial Verdict,
brand integration,
Cheryl Hodgson,
fire band members,
Jay-Z,
media value,
Music Licensing,
Power Lawyers,
royalties,
settlement,
Songwriters Equity Act,
Spotify
Sunday, February 22, 2015
February Financial News Recap - Music Royalties
MIDEM as we know it may be no more, but the music business always kicks off the new year with The Grammy Awards. This year, we celebrated nominated clients during #Grammy #Week with many out of town guests from New York, The Southeastern US and Texas (see photo here by Christianne Kinney, Esq. featuring Tamera Bennett, Esq., Ken Freundlich, Esq. and Auditrix founder Cedar Boschan at the Fox Rothschild Pre-Grammy Party)
Our music royalties highlights so far this year:
Our music royalties highlights so far this year:
- A popular post on the Auditix blog "Five Things to Consider Before Filing a Music Copyright Case" by trial lawyer Gerard P. Fox, Esq.
- Cedar Boschan was re-elected to a second term as national treasurer of The Association of Independent Music Publishers. She was also honored to be featured in discussion with the following music industry professionals in Berkeley at California Lawyers for the Arts' "Crossing the Digital Divide" 32nd Annual Music Business Seminar:
- Keith L. Cooper, Esq., Partner who heads de la Pena & Holiday LLP's new Los Angeles office and focuses on clients in transactional, copyright and trademark matters, as well as lawsuits
- Angela Rose White, Esq., COO of David Rose Publishing Co. where she concentrates on music publishing/administration of a catalog including “The Stripper”
- Mikael "Count" Eldridge, San Francisco-based record producer and filmmaker (projects include DJ Shadow, Frank Sinatra, Radiohead, John Cale, No Doubt, RUN DMC)
- Vivek Sridharan, Esq., Partner at Counsel LLP who advises on digital strategy for independent record labels, music technology start-ups
The panel discussion focused on digital distribution of music and its impact on the music business. - Green Hasson Janks published its final Entertainment Newsletter (GHJ is switching to a blog, to be announced soon)
- Cedar and her team at GHJ attended several educational programs about the music industry, including an International Panel at the AIMP and the first music-oriented program held by The Beverly Hills Bar Association in quite a while:
- We also attended The AIMP's International Royalties program featuring:
- Michel Allain, Director General/CEO, FastTrack (Paris, France), who cogently pointed out that, unfortunately, $1M Euros equals $1M U.S. Dollars
- Ger Hatton, Director General/CEO, International Confederation of Music Publishers (Switzerland)
- Teri Nelson Carpenter, President & CEO, Reel Muzik Werks/AIMP Vice President
- Check out our top tweets here!
Labels:
Angela Rose White,
California Lawyers for the Arts,
Count,
Dean Wilson,
Dina laPolt,
Donald Passman,
Grammy Week,
Keith Cooper,
Mikael Eldridge,
Music Copyright,
Rand Levin,
Vivek Sridharan
Top Tweets YTD from the Auditrix 2015 Twitter Feed
Below are the popular tweets from the Auditrix twitter feed, which focuses on music economics and royalties, during 2015 YTD:
- Duff McKagan on royalty audit of Geffen: "Well, they didn't pay us on something like 6 million records."
- YouTube Music Key Drew Criticism from Indies
- Apple spent up to $50 million for a music data company
- Swedish songwriters called for more clarity and fairness over digital royalty distribution
- Sly Stone testified in royalties lawsuit against his former manager and won
- Katy Perry's lawyers demanded takedown of 3D printable Left Shark and filed a trademark claim for Left Shark
- Federal District Courts "have been improperly applying a quantitative and not qualitative #copyright analysis... "
- Elvis Presley Turns 80: What Is the King's Legacy Worth?
- Sony's Lynton said: No Plans to Sell Music Publishing Business
- The Best Time to Release Your Album: A Month by Month Guide
- The U.S. Copyright Office Embraced Big Shake-Up to Music Licensing Regime
Best Unfinished Twitter Conversation with Glenn Peoples @ Billboard and John Strohm @ Loeb |
- Jas Prince Sued Birdman For Drake Royalties
- Tony Braxton's Ex-Husband Auctioned Off Royalties To Pay Back Child Support
- Kiplingers: Shouldn't Music Streaming Sites Pay Higher Royalties?
- Medium: Why Do All Records Sound the Same?
Labels:
Apple,
audit,
Billboard,
Cedar Boschan,
copyright,
Drake,
Geffen,
John P. Strohm,
Katy Perry,
Left Shark,
Music Key,
Netflix,
royalties,
Sly Stone,
Spotify,
streaming,
sued,
Swedish songwriters,
trademark,
YouTube
Friday, January 9, 2015
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.”
Labels:
attorney,
copyright,
damages,
Federal District Courts,
forensic accountant,
Gerard Fox,
infringement,
litigator,
music,
musicologist,
Net Profits,
song,
trial lawyer
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