Creatives, Copyrights, Contracts and Secret Codes – How Amanda Harcourt Advocates for Artists at Blue Highway

The music industry has always been a complex and difficult system to navigate for artists and the managers who handle their careers. Now, in the digital era of music – and with AI busting into the scene like a hellbent diva ­– the industry is an evolving frontier with rapidly changing rules. With big money to be made and a shroud of mystery surrounding streaming rights, the breakdown of funds and a million moving pieces, it’s an area rife for exploitative bad actors. That’s where Amanda Harcourt and Blue Highway Advisory come in.

Blue Highway Advisory, founded by Ian McCaleb, combines legal support with strategic communications, with a dedication to fighting for creators’ rights. Harcourt takes a holistic approach to her work at the company, with a focus on helping songwriters, musicians and film maker clients collect revenue that has been siphoned off by other parties. In the intricate web of the music industry, with the many moving parts and mouths to feed along the way – this is no simple task.

“For a music creator or filmmaker to find out if they have been paid correctly, first they need an auditor who will often use data analysis expertise to review the accounting statements and also someone to review the contract to tell them if they’ve got a case,” Harcourt explains. “From there, if they do have a potentially good claim they’ll need a litigator, maybe litigation finance and PR support – we want to be a one-stop shop for this."

Harcourt understands that music creators have the right of audit against their music publisher or record label. Filmmakers with a contractual entitlement to a profit share similarly have such rights. That said, in each case, where a work – be it an album, or a film – becomes an actual profit-making work is not ideal from the perspective of the movie studio or the record label. Because at the point of recoupment of costs, when a work enters a “Net Profit” position, accounting obligations to third parties kick in. "One has to start sharing money with the talent," she says. "There is the old riddle 'Why does nobody play tennis in Hollywood?' Answer: 'Because there is no Net.'”

For many creators there are mechanisms in play that give them a right to a revenue stream after the delivery of the work – so called secondary revenue. In Hollywood, for example, the Guilds, such as SAG-AFRTA for actors, or the Directors’ Guild, have over nearly a century negotiated secondary payments that reflect usage of the work after delivery, irrespective of any theoretical profit participation awarded by contract. For music authors the system is slightly different. Music licensing is done on a collective basis. The right of communicating a work to the public is assigned by the music creator to collective management organizations (CMOs) around the world. These CMOs issue licenses to users on behalf of their creator members – to radio stations, streaming services or night clubs for example. "These organizations are largely not-for profit and in almost all cases the music creators have the right to have a presence on their Boards – probably the only area of the music industry where creators can influence policy," says Harcourt. "Despite the advantages of this global system music authors have no right of audit of their CMO.”

Harcourt comes to Blue Highway with decades of experience and ground-breaking results in this space. She’s built an impressive career fighting tirelessly for the rights of artists in the face of big and oftentimes greedy corporations. In the early ‘90s Harcourt’s very first clients in private practice happened to be one of the biggest bands in the world – U2. Harcourt conducted a global audit on their behalf regarding an enquiry into their collectively administered revenues as both authors and performers. This work ultimately began a gradual overhaul of the global collective management system for music authors. Now all such societies in the European Union and the U.K. are subject to detailed statutory regulation with transparency obligations which, in theory and if correctly applied, greatly improve the services on offer.

Lawdragon: How did you get your start in the industry?

Amanda Harcourt: I moved to London from a town in the west country of England where I had been making a film with a group of young offenders. I was invited to join a boutique entertainment law firm. Oddly my first clients were U2 – which they and I thought was quite funny. I had also just finished writing a book about the law and practice of independent film production informed by my work with the young offenders. Simultaneously, I had been working as a PA for a singer-songwriter. I believe I was asked to join the law firm because the two partners had come from a very conventional law background whereas I had practical experience of the industry. I'd been lecturing on copyright at universities around the country after I wrote the book. I also knew what was involved in making a film; I knew what was involved in getting a record made. The senior partner at the firm had been at university with U2’s manager, Paul McGuinness, who’d come to ask him for help. The partner was busy in litigation, so he locked me in the boardroom on Monday morning, left me with all the source material, and just said, "I'm going to test you on Friday."

We want to look back, not forward. We want to help our music and film creator clients correct the wholesale theft of their revenue historically.

LD: What were you helping U2 with?

AH: When singer/songwriters go on tour, the tour promoter has to pay a license fee from the tour budget to the CMO in the country where the artist or band is performing – often to perform their own songs. Each CMO has a different rate they charge as a percentage of the ticket sales. Each CMO takes off administration fees but we discovered that sometimes they were taking off what they called an additional “cultural deduction,” as well as so-called “social deductions.” So U2 were singing their own songs, but they were getting as little as 45 to 55 percent of the money. It was all being eaten up by mouths to feed all the way along the chain. That was the first part of the exercise. We went to the Performance Rights Society (PRS for Music) – the UK CMO for music authors – and said, "Here are the dates of the tours, here is what was paid over, here's the songs that were sung, where's the money?"

It was fascinating. After two years of inundating the PRS with questions, I discovered all kinds of things. Not just the bites to feed all the mouths along the way, but we discovered that even the promoters were “diverting” money that belonged to the songwriters. Some promoters were negotiating reductions in fees payable to the CMO but charging the tour budget the full amount and pocketing the balance. I understand this practice is still going on – but some large managers, on discovering this, appear to be reluctant to admit to their clients that they hadn’t spotted it happening over the years. Ultimately I went to the UK trade association for songwriters and composers. In this role I was mandated by the membership to give evidence to a competition authority enquiry into the PRS which then published a wide-ranging competition report that formally began the UK process of modernizing these organizations. Back in the ‘70s, there was a move to look at large companies and modernize them, but these societies had been overlooked in that process. It wasn't until the ’90s that the CMO system began the modernization process, ultimately leading to the EU and UK legislation I mentioned.

LD: How did you come to Blue Highway?

AH: I had engaged Ian [McCaleb] to run the U.S. side of PR in support of a piece of federal litigation which had arisen from some forensic work I had done for filmmaking clients based in California. I was the “points man” between my clients, the litigators and the PR teams working on the case. Ian and I hit it off from the day we met. I regard myself as a kind of invisible second-in-command at Blue Highway. He and I worked very closely together defining the range of services we'd offer. It was then up to Ian to put the team together. His background is PR and my background's law, so we come at it from different perspectives.

LD: Tell us a bit about what you’re able to offer at Blue Highway.

AH: There are a lot of organizations doing advocacy, trying to change the law, trying to make it more sympathetic to creators in the future, and we'll help with that if we can. But in the early stages, we want to look back, not forward. We want to help our music and film creator clients correct the wholesale theft of their revenue historically, because it appears that there is a need for this. If they want to litigate, they need someone who knows how to read their contracts and look at their statements. We are able to feed the statements through a state-of-the-art data analytics system which “reads” over 300 different royalty statement formats and pulls all the data together into one place. This gives us a clear and manageable picture, we can identify missing statements and reconcile the copyright meta data, correcting errors etc. We may go to an auditor at that point but the process basically means we are able to determine if they may have a case. From there, they’ll need a litigator, maybe litigation finance and PR support – we aim to be a one-stop shop for this. I can look at the analysis and the contracts and assess if it’s a worthwhile case. We can do a budget, and Ian does the legwork finding litigators with no conflict who will run the litigation case and we are there to guide and co-ordinate the different parties.

If you are a manager and you're trying to run your artist's career, you don't want to be talking to a bunch of people – the data person, the auditor, the person who's done the analysis, the litigator, the PR rep – you'd go crazy. So we are able to offer a kind of points man service, which is what I did for U2 and that's what I did for the case recently in California.

I often encounter people in the entertainment industry who do not see the need for specialist litigation PR. But making the public aware of the asymmetry of revenues between the creators and the corporations is important, as is explaining simply and clearly what the grievance may be. Bad publicity can affect a share price, or deter someone about to sign with a company by shining a light on the unfair practices in operation at that company. There is an assumption that fame or celebrity brings wealth. This is not necessarily the case.

And there is surely asymmetry. Daniel Ek, who founded Spotify, is worth $4.9B. That is four times Sir Paul McCartney’s net worth. If your work is streamed on Spotify you can expect to be paid a little over $3 USD for 1000 streams, or $0.003c USD per stream. And this amount has to be shared with all the songwriters, all the band members. The CEO of Universal Music Group reportedly has a base salary over $5M that could rise to a performance-related $10M plus stock options worth up to $100M. That’s asymmetry! When digital music delivery entered the marketplace, all the creators' revenue plummeted largely because these deals were led by the record companies, and they put their corporate interests first. Statistics about the success of the music industry are not reflected in what the creators are receiving. The market is dominated by three music companies that have a 70 percent market share and it seems their focus is making sure that they could keep their commercial foothold in the marketplace.

There is surely asymmetry. Daniel Ek, who founded Spotify, is worth $4.9B. That is four times Sir Paul McCartney’s net worth.

LD: Were you always interested in working with artists?

AH: Growing up in New Zealand my father was really keen on jazz and popular music as well as fine art. He was on the selection committee of the National Academy. I've got a cousin and her mother who are both Dames of the theater and I've got another cousin who's a comic; another is a journalist. Then, on my mother's side, we have an actress and a pianist. My whole family seems interested in this area, so I was never going to be dedicated to agricultural law.

When I first came to England, I made the film with the young offenders which is what gave rise to the film law book. I think I would much rather work for the people who are actually creating the stuff that we treasure than the people who are just another mouth to feed in the royalty food chain.

LD: What are some of the big challenges that artists are facing these days?

AH: Meta data – copyright works labelling! There's an international works code that is or should be attached to every copyright song or composition. It is called an International Standard Works Code (ISWC). The very first ISWC number that was allocated was to Dancing Queen by ABBA – that gives you an indication of how new they are. Individual recordings have an equivalent code – an International Standard Recording Code – the ISRC. When artists are in the studio, they're focused on getting the track down. But it’s so important to make sure they add the metadata to the work because it's those international works codes that are embedded in the sound files or attached to the song and registered at the authors’ CMOs, which enable people to track where the work is going and therefore account properly by reference to the work. But it is often nowhere near the top of the list for the creator.

There is an important financial reason why the music creator should put the metadata right at the beginning of the life of a work. What? Every single songwriter, composer and performer has three words that appear in their contract: “directly and identifiably.” Basically in every single contract it says that unless the company can match an amount of money “directly and identifiably” to your work, they don't have to pay you. They can keep the money. So baked into the system of music contracts is a disincentive for good data at the record company and the publishing companies. So all the unmatched revenue goes straight to the bottom line; to the shareholders and to the executive bonuses. So you can see why it matters because the better the data that goes in at one end the better the chance of the creator getting what they're entitled to at the other end.

LD: How about AI – what do musicians need to think or be prepared for there?

AH: It’s definitely an enormous threat. What’s infuriating is that as usual the law lags behind the technology. And, as was the case with digital delivery the approach of the tech barons seems to be based upon forgiveness not permission. In Europe, you can opt-out and say you don’t want your piece of music to be used to train AI data sets but to a considerable extent the ship has sailed. In France and Germany, the CMOs there have already taken positions on the use of the catalogues they manage being used to train AI and the German CMO has issued a licensing structure and is suing Open AI. And of course the AI companies should have had consent for the copying in the first place. Google publicly maintains no copy takes place but if you read about the actual tech process this is untrue. A license fee is required for the copying – it is an act that copyright law provides needs consent and a license fee. For creators of all stripes already struggling to make a living in the digital age, AI threatens even further damage to their livelihoods.

And as for AI generated “music,” if you look at the laws around the world about authorship, you find statutory references and case law referring to a human author. For anything generated by AI that includes human input, any time that gets broadcast or performed in public, that should require a license and remuneration. But the license money should be paid only to the human author, not the machine. So a generative AI work should have no copyright protection in and of itself, except to the extent that includes a piece of work written by a human author. The law is already there, it’s just being ignored.

LD: Can you tell us about a recent case that you’ve got your eye on?

AH: Given my interest in CMOs, there are two cases in the UK involving the PRS for Music. The CMO is facing two complaints and they're both from creators. When the organization that's absolutely vital for music authors, for their livelihoods as songwriters, is being attacked by its own members, the CMO should be both alarmed and ashamed. Something seems to be wrong in the way that particular CMO is conducting itself. To fight rather than finding an intelligent accommodation makes much more sense than spending members’ money – it is after all a not-for-profit organization.

One claim is at the competition authority and it’s about the way the CMO aggregates revenue and pays out public performance money. The other case is about live performance royalties and is in part an indirect result of the U2 case and challenges made in Germany in the 1970s. All the societies in Europe and the UK, and it is now enshrined in statute, have to make it possible for writers to pull out from the CMO certain threads of the performing right. The live performance right is identified as one that can be withdrawn and managed directly. This enables the singer/songwriter to do a deal with the promoter and get paid the full amount, fast and without all the deductions. There exists a UK-based independent company that shows big writers how to do this live self-administration and get paid swiftly and direct, maximizing revenue outside the CMO system.

A generative AI work should have no copyright protection in and of itself, except to the extent that includes a piece of work written by a human author. The law is already there, it’s just being ignored.

The PRS also runs a system for major concerts to help big artists. But the allegation is that the PRS is making it impossible for the independent company to function by imposing unrelated conditions upon them. In addition, the PRS is applying different live administration fees across the membership. It costs 23 to 30 percent to administer live performance, it's very labor-intensive. But the PRS is apparently offering the major artists a low single digit administration fee all the while making the little guy pay the full 23 plus per cent. The effect is the big guys, are paying a tiny amount as a deduction but all the little guys are paying 23 to 30 percent. The rich are getting richer. And this is in an organization that is required to treat equally all members whose works they manage – including those from abroad. Arguably, they're not acting in accordance with their own rules or particularly transparently. They're a not-for-profit company limited by guarantee. They're a membership organization. That two groups of creator members have issued proceedings against them should be a real worry for their Board and for their members.

LD: Can you tell us about the lectures you teach?

AH: I am an Honorary Professor of Practice at the Institute of Brand and Innovation Law at the Faculty of Laws at University College London. It is a very highly regarded law school with a strong research element. My role is developing as a bridge between the copyright academics and the copyright industries. The Faculty has a really smart woman running the copyright program and we are developing some really fun stuff for 2025/26. I have put together some public lectures, and for the last nine years I've also been running public courses about the law and practice around privacy and data. We look at surveillance capabilities, data and crime prevention, international data transfers, privacy and the press, the forum internum, biometric data – fingerprints, facial recognition etc – and the governance surrounding what can and can't be done with it. Generally we explore the extent to which the digital world is encroaching upon our privacy. I’d like to explore transhumanism and privacy next year.

In February this year we are offering a public lecture with two journalists from Northern Ireland who sued UK law enforcement because they had been arrested and their work seized. It seemed the arrests were an attempt to identify their sources for a documentary about a loyalist paramilitary massacre. In the UK we have the Investigatory Powers Act which sets out the process and basis on which law enforcement can secure access to, say, a telecoms company subscriber’s data and meta data for surveillance purposes. Unusually, given the statistics around complaints made to the Investigatory Powers Tribunal, the case was found in the journalists’ favor.

LD: Do you have a favorite TV show or film about the law?

AH: My husband says I like what he calls Serial Killer of the Week, but that's not strictly true. I have to say that I do like a well-structured police procedural. But I tend to mostly watch documentaries about art, gardening, fashion and that kind of thing. Not music because I need to turn my brain off.