- Robert Jacobs is a lawyer in LA who works with musicians and songwriters.
- He says cases like copyright infringement can be long and arduous, but he loves his job.
- Here's his story, as told to writer Cari Shane.
This as-told-to essay is based on a conversation with Robert Jacobs, an entertainment litigation lawyer based in LA. It has been edited for length and clarity.
I grew up in Los Angeles, where the entertainment industry was all around me. I loved movies and TV and would frequently go to live concerts. There's a certain magic in what creative people are able to create.
In law school, I took a class on copyright law and learned about the intersection of art and law — and specifically, how the law can protect artists and their craft. I was hooked right away and decided to focus my studies on entertainment litigation, which is what I've specialized in since 1998.
Over the past 20-plus years, I've worked with different forms of media, from photography to film and TV
But for the last several years, I've focused primarily on the music industry as a litigator dealing with a wide range of legal issues, including copyright disputes. I also handle royalty disputes and all kinds of contract and other rights-related disputes. Sometimes, I represent people suing for copyright infringement, other times I'm defending someone being sued.
For all of it, I like to stay behind the scenes and let my clients shine because it's not about me. I have a deep respect for what they do and how they do it, whether they're musicians, producers, singers/songwriters, or writers. I believe very strongly in protecting what they create.
At the outset of every matter, the most important questions I ask are, "What's really at stake here?" and "What makes sense?" especially from a financial perspective.
I just finished up a case for music producer and DJ Marshmello that I'm very happy with
It was a copyright claim involving the song "Happier" that we successfully defeated. That case went all the way to appeals on the Ninth Circuit, the appellate court that has jurisdiction over California, and we prevailed there, too. In total, the case took about three years from start to finish.
I've also handled a couple of lawsuits for Kendrick Lamar: one in 2016 that involved a claim by Bill Withers that we successfully resolved, and another involving the art used in the background of the video "All the Stars" from the "Black Panther" soundtrack. That lawsuit began in February 2018 and ended in March 2019.
One of my clients once gave me a plaque reminiscent of a gold record that an artist would receive from the RIAA (Recording Industry Association of America) as a thank you.
What's complicated about what I do is the lack of predictability
Judges and juries can be unpredictable. For example, although most people rightly understand that a finding of copyright infringement in the music world requires proof that a defendant has used a meaningful amount of compositional elements that are original to the plaintiff, too often courts have allowed cases to go forward — and juries have found liability — merely based on the works at issue sharing a common "feel" or using common musical building blocks that belong to no one.
Although we're starting to see the pendulum swing back in line with most people's understanding of what the copyright laws are supposed to protect in more recent decisions, including those involving works by Katy Perry and Led Zeppelin, the fact that those other precedents remain on the books underscores the need to take a thoughtful and strategic approach to these kinds of cases.
Music copyright infringement claims can be a long, laborious process
It can take years going through the court system to resolve a copyright claim. Although musical works enjoy copyright protection from the moment they're first written down or recorded, the owners of such works can't sue for copyright infringement without first registering their works with the US Copyright Office in Washington, DC. It's always a good idea to complete the registration process as soon as possible after a work is first created or at the same time as initial publication.
The record labels and music publisher to which my recording artist and songwriter clients are signed usually — but not always — will take care of registering the copyrights in the works created by my clients.
There needs to be proof that the wrongdoer 'had access' to that person's music
Oftentimes, we look at how widely the song has been distributed to the public and in their geographical location.
Next, they need to prove that there's substantial similarity between the allegedly infringing work and their work. A substantial similarity inquiry considers whether the plaintiff has adduced sufficient evidence that the songs at issue share meaningful and objectively verifiable similarities — usually based on testimony from a musicologist or other qualified musicological expert — and a lay listener would regard the songs as being meaningfully similar.
We also often need to engage in detailed analyses regarding the extent to which the plaintiff can show the alleged infringement actually caused the damages the plaintiff seeks and the value of such damages.
Musicologists breathe life into this process in a way that nobody else can
Generally speaking, a musicologist is someone who has extensive knowledge about musical theory and history, often as a result of having pursued an advanced academic degree and/or teaching such topics.
The scholarship, thoughtfulness, and understanding that a good musicologist can bring to bear is invaluable. We often retain musicologists on a case-by-case basis to analyze claims.
It's important to recognize that even if there are overlaps in the work at issue, often times it's coincidental.
Although the entertainment industry has its glitz and glamour, that's not the lane I like to be in
I'm grateful and privileged to have the opportunity to act on behalf of some of the world's greatest creators, but the spotlight belongs to them and their work, not me. Outside my professional role, I'm all about my kids and home life just like everyone else.
My days involve a lot of reading, including The New York Times, The Wall Street Journal, Billboard, The Hollywood Reporter, Music Business Worldwide, and Law360, and catching up on what's going on in my industry, returning phone calls, and taking meetings. I tend to make myself available whenever my clients need me.
Travel has been very much part of my work life. I've had cases all over. In terms of music, I listen to everything — rap, hard rock, country, pop, classical, and John Coltrane.
To my younger self, I'd say, "Good job." I'm incredibly appreciative and grateful for where I am and what I've done.