Entertainment Law Update Episode 96: Tamera Bennett and Gordon Firemark

Podcast Episode 96 Tamera Bennett Gordon Firemark.jpg

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

This post contains affiliate links. That means if you click a link I may receive a benefit.

The Music Modernization Act Passes the House and Includes the CLASSICS Act

MMA House Judiciary Tamera Bennett #createprotect.jpg

Patrick Lewis contributed to this post.

The Music Modernization Act

The Music Modernization Act - HR 5477 (the “MMA Legislation”) unanimously passed the U.S. House of Representatives on April 25, 2018. The MMA legislation now moves to the Senate for review and hearings. 

The MMA Legislation unifies and serves as an umbrella for four previously introduced bills—the Allocation for Music Producers (AMP) Act, the CLASSICS Act, the Fair Play Fair Pay Act, and a songwriter-specific version of the Music Modernization Act. The goal is to overhaul the U.S. Copyright Act in relation to music licensing and fair compensation. It’s a joint effort of music publishers, songwriters, artists, record labels, radio, digital services, producers, and engineers to reach a workable solution for content owners and content users.

The CLASSICS ACT

(Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act Title II, Sections 201-203, Chpt. 14)

Most importantly to me, the CLASSICS Act, which I authored, is included in this package. It corrects a decades old injustice through which performers have been arbitrarily deprived of royalties on songs recorded prior to 1972.
— IP Subcommittee Chairman Darrall Issa - House Judiciary Committee Press Release, April 25, 2018

Sound recordings were not protected by Federal Copyright Law in the United States until February 15, 1972 (Pre-72 Sound Recordings). There's a hodge-podge of state copyright laws that artists and record labels use to fight bootleg recordings and piracy of those legacy recordings.

The Problem Pre-72 Sound Recording Artists and Copyright Owners Face:

A new issue arose for artists and sound recording copyright owners when digital services such as Spotify, SiriusXM, and Pandora announced they would not pay digital sound recording public performance royalties for the performance of Pre-72 Sound Recordings. State law litigation related to public performance rights for Pre-72 Sound Recordings has resulted in a split in the courts based on how each state interprets their own common law or statutory laws. Some states find there is a digital public performance right and others not.

Goal of the CLASSICS Act:

If the MMA Legislation becomes law, Title II, Sections 201-203, Chapter 14, which encompasses the CLASSICS Act, will pull Pre-72 Sound Recording copyrights under the protection of federal copyright law for purposes of digital public performance of sound recordings.  Digital music services like Spotify, SiriusXM, and Pandora will have to pay to perform sound recordings fixed on or after January 1, 1923, and before February 15, 1972.

The MMA Legislation applies the same analysis used for Post-72 sound recordings to determine if the performance of a Pre-72 Sound Recording is interactive or non-interactive and whether or not the statutory digital transmission license is applicable to the performance. The MMA Legislation grants Pre-72 Sound Recordings the same safe harbors as post-1972 recordings: protection under the Digital Millennium Copyright Act and section 230 of the Communications Decency Act.

Copyright Filings and Damages for Infringements:

A requirement to open the federal court house doors for a copyright infringement claim is a U.S. Copyright Registration (or in some circuits proof of filing an application). Since Pre-72 Sound Recordings are not currently protected under U.S. Copyright Law, there is no procedure for filing a copyright application or a way to sue for copyright infringement in federal court.

The MMA Legislation does not go so far as to allow or require a copyright registration to be filed for the Pre-72 Sound Recordings.  Infringement remedies found in Sections 502-505 of the Copyright Act may be applicable if “the rights owner [files] with the Copyright Office a schedule that specifies the title, artist, and rights owner of the sound recording and contains such other information, as practicable, as the Register of Copyrights prescribes by regulation; and the transmission is made after the end of the 90-day period beginning on the date on which the information filed under subclause (I) is indexed into the public records of the Copyright Office.”

Questions and Concerns with the CLASSICS Act Portion of the MMA Legislation:

I’m concerned with how the Copyright Office recording provision will be implemented. This could be a very burdensome process on the Pre-72 Sound Recording owners.  And, what about the less sophisticated Pre-72 Sound Recording owners that may not even know that they need to comply with this provision?

The U.S. Register of Copyright will be required to implement the recordation procedure. The U.S. Copyright Office has suffered repeatedly from technology challenges and this seems like one more technology hurdle to overcome.

Next Steps For the MMA Legislation:

The MMA Legislation, which includes the AMP Act, the CLASSICS Act, the Fair Play Fair Pay Act, and a songwriter-specific version of the Music Modernization Act, is in the hands of the U.S. Senate.  Hopefully the bi-partisan treatment in the House will continue as the Senate committee starts its review.

How Does VARA Protect Artists and Building Owners?

Patrick Lewis contributed to this post.

5Pointz is the story of how the pen is mightier than the brush. Or, how written notice could have saved a building owner more than $6 million dollars in damages.

5Pointz History

Starting in the 1990s the exterior walls of the New York building complex known as 5Pointz, representing the five boroughs of New York, was a magnet for highly-recognized graffiti artists and a tourist attraction. The site was so popular, the owner, Jerry Wolkoff, created a “curator” role to oversee what graffiti would go on the buildings.

In 2013, 5Pointz owner Wolkoff announced his plans to destroy the 5Pointz complex and build high-raise apartments in its place.

Seeking injunctive relief on the grounds 5Pointz is a famous tourist spot, twenty-one 5Pointz artists filed suit in federal district court hoping to save their creative expressions.  Before the court issued an opinion, Wolkoff white-washed the walls of 5Pointz, destroying all the graffiti. The court awarded the artists $6.75 million in damages for violation of the Visual Artists Rights Act of 1990 (VARA).

What is VARA?

The Visual Artists Rights Act of 1990 grants moral rights to certain forms of art. Moral rights are non-economic, spiritual or personal, and exist independently from an artist's copyright. Moral rights stem from an 18th-century French concept le droit moral.  VARA grants two moral rights, integrity and attribution. Integrity grants an artist the right to prevent the intentional distortion, mutilation or modification of their work. Attribution grants an artist the right to receive credit for their work.

What Works Does VARA Protect?

VARA only protects a “work of visual art” which the statute defines as paintings, drawings, prints, or sculptures. The statute explicitly excludes posters, maps, globes, charts, technical drawing, diagrams, models, applied arts, motion pictures, and merchandising/promotional items. The statute also expressly excludes works made for hire.

This litigation [5Pointz] marks the first occasion that a court has had to determine whether the work of an exterior aerosol artist—given its general ephemeral nature—is worthy of any protection under the law.
— Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 214 (E.D.N.Y. 2013)

Additionally, VARA only protects “recognized stature.” The statute doesn’t define works of “recognized stature.” Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE), 1995 U.S. Dist. LEXIS 7779 (S.D.N.Y. 1995) remains the seminal case for interpreting the phrase "recognized stature.” Carter created a two-prong test to determine “recognized stature.” First, the visual art has “stature” (i.e. is viewed as meritorious). Second, the visual art is “recognized” by art experts. Carter requires the visual art to achieve some notoriety, but how much notoriety is required is still unclear.

How Does VARA Work?

VARA does not completely prevent the destruction, mutilation or otherwise modification of protected works. VARA requires 90 days’ notice to the creator before the destruction, mutilation or otherwise modification of their work. There must be a good faith effort made to notify the creator. Sending notice to a creator’s last known address is sufficient. Notice is required so the creator has time to remove their work, if possible. 17 U.S.C. § 113. In the case of 5Pointz, it’s unclear to me how the graffiti could have been removed in such a way as to preserve the graffiti without actually removing chunks of the exterior façade.

An award of damages for a violation under VARA can be no less than $750 and no more than $30,000 for each work destroyed. If there is a willful violation, damages can be up to $150,000 for each work destroyed.

The Lesson From 5Pointz

5Pointz puts VARA into focus. It serves as a reminder that violating VARA has real consequences. Wolkoff could have potentially avoided a lawsuit by giving the artists notice of his plans to destroy their works. One question I have is whether or not Wolkoff could have located an address to properly notify all or most of the artists.

If you’re a creator of a VARA protected work, know your rights. Be aware that notice is required for the destruction, mutilation or modification of your work. On the other hand, if you own property that incorporates VARA protected work, know your obligations and follow the notice procedures.

Listen to entertainment lawyers Tamera Bennett and Gordon Firemark discuss the 5Pointz case on the Entertainment Law Update Podcast Episode 94.

Read the court opinion here. Cohen v. G&M REALTY LP, Dist. Court, ED New York 2018.

Update - Recent VARA Case Filings:

As of April 25, 2018, new lawsuits have been filed in Memphis and Pittsburgh over the destruction of graffiti/murals in public spaces.

Entertainment Law Update Episode 95: Tamera Bennett and Gordon Firemark

Podcast Episode 95 Tamera Bennett Gordon Firemark.jpg

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

 This episode of the Entertainment Law Update Podcast is brought to you by LawPay. If you are lawyer or law firm and need a better way to process credit cards, visit  lawpay.com/elu .

This episode of the Entertainment Law Update Podcast is brought to you by LawPay. If you are lawyer or law firm and need a better way to process credit cards, visit lawpay.com/elu.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

This post contains affiliate links. That means if you click a link I may receive a benefit.

My Trademark is Being Used As A Twitter Handle. Now What?

twitter handle trademark createprotect.jpg

Patrick Lewis contributed to this post.

What can I do if a Twitter-squatter creates a username using my registered trademark and holds it for ransom?

Twitter’s Trademark Policy

Using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation may be considered a trademark policy violation.
— Twitter Trademark Policy

If you have a U.S. federally registered trademark, you have options for securing the Twitter handle. Twitter’s policy prohibits third parties from using a third-party federally registered trademark as a username if the third party is using the account in a misleading or confusing way. Be aware that not every handle that is identical or similar to a registered trademark is a violation. There may be “fair use” factors that come into play in the instance of fan usage and parody.  

To file a trademark claim with Twitter you’ll need to be able to answer the following questions:

  • Is someone impersonating my brand
  • Is someone infringing my trademark
  • Contact information for the brand owner
  • Your affiliation/relationship to the brand owner
  • The trademark registration numbers
  • The third-party Twitter handle
  • How the third-party is impersonating or infringing the trademark

Twitter’s Inactive Account Policy

Waiting may pay off in acquiring a Twitter handle. An account is deemed inactive when the user has not logged onto the account in over 6 months. When an account is removed, the username is up for grabs. However, it is difficult to tell if an account is active or inactive since activity is based on logins and not tweets.

Twitter’s Anti-Squatting Policy

If you receive a solicitation to purchase a Twitter handle that is the same or similar to your federally registered trademark, contact Twitter.  Twitter’s anti-squatting policy protects against “Attempts to sell, buy, or solicit other forms of payment in exchange for usernames are also violations and may result in permanent account suspension.”

Twitter evaluates the following factors in a “squatting” claim:

  • the number of accounts created;
  • the creation of accounts for the purpose of preventing others from using those account names;
  • the creation of accounts for the purpose of selling those accounts; and
  • the use of third-party content feeds to update and maintain accounts under the names of those third parties.

Twitter will not release squatted usernames except in cases of trademark infringement. It’s worth noting that Twitter may require proof of an attempt to sell a username in order to enforce its policy.

Practice Pointer

As your company or clients develop new brands, check across the social media platforms to see if the handle/username is available.  This can be performed as part of a trademark knock-out search. If the brand name is clear, then secure the social media handle/usernames.  An ounce of prevention is always worth a pound of cure – or the hassle of trying to secure the Twitter handle after the fact.

 

 

 

Entertainment Law Update Podcast Episode 94 Tamera Bennett and Gordon Firemark

Podcast Episode 94 Tamera Bennett Gordon Firemark Entertainment Law Update

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

This post contains affiliate links. That means if you click a link I may receive a benefit.

 

 

Year In Review - 2018 Entertainment Law Update Podcast

2018 Year in Review Tamera Bennett Gordon Firemark #podcast Entertainment Law Update

2018 was full of fun and interesting entertainment law cases and issues. Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark on their annual year-end wrap up of entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

This post contains affiliate links. That means if you click a link I may receive a benefit.

Entertainment Law Update Podcast Episode 89 - Tamera Bennett & Gordon Firemark

Attorney Tamera Bennett Gordon Firemark Entertainment Law Update Podcast Episode 89

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

This post contains affiliate links. That means if you click a link I may receive a benefit.

Entertainment Law Update Podcast Episode 88 - Tamera Bennett & Gordon Firemark

Music Lawyer Tamera Bennett Gordon Firemark Entertainment Law Update Podcast

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast.

Entertainment Law Update Episode 90 - Gordon Firemark & Tamera Bennett

Dallas Trademark Lawyer Tamera Bennett Gordon Firemark Entertainment Law Update Podcast

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In this episode of Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast

This post contains affiliate links. That means if you click a link I may receive a benefit.

Updates on Prince Estate - Heirs Determined; UMG Deal Voided; Possible Dispute Over Prince Stage Show

#createprotect Attorney Tamera Bennett Prince Estate stop Purple Rain Tribute Band

What Happens Now that Prince's Heirs Are Determined?

More than a year after Prince's death, the court certified Prince's heirs as his sister and five, half siblings. Under Minnesota law, half siblings are treated equally with full siblings for inheritance purposes.

The first action of the heirs seems to be challenging deals made by the trustee managing the estate for the past year. News reports state all six heirs agreed in 2016 that the estate administrator was rushing to sign deals for Prince's "vault" of songs and masters when their didn't seem to be a reason to push a deal through. A deal was made with UMG in January 2017 that was worth $31 million. Now there's a discrepancy between what rights UMG actually acquired under the deal signed as opposed to rights currently claimed by Warner Bros in the catalog.

In July 2017, the court voided the deal with UMG and now $31 million should be returned to UMG. Hopefully that money is still held in trust. But what about any commissions the trustees may have earned? 

Can Prince's Heirs Block A Stage Production About Prince?

Is it a musical or a cover band? That's the first legal question I think the heirs need to ask regarding the "A Celebration of Prince Purple Rain" tour that launches in August in the UK. An article from the BBC says the heirs are exploring legal options in regards to the tour.

Do tribute bands trigger "grand rights"?

Under U.S. law and U.K. law, theatrical grand rights require a public performance license to use music in stage/theatrical production. Those rights are fully negotiable and can be withheld by the copyright owner. These are different rights from the small rights that would be secured in order to present a concert. Small rights are much harder to deny so long as the necessary public performance licenses are secured. In the U.S., the small rights are licensed from ASCAP, BMI, and SESAC. In the U.K., PRS for Music is the public performance licensing agent.

If the tour is actually a "musical," then the tour could be shut down if the proper grand rights licenses are not secured from the music publisher. A concert starts to look more like a musical or theatrical stage production when the songs are used as part of the arc of a story line. If the songs are used for dramatic purposes to carry the story forward, grand rights are triggered.

Do tribute bands infringe trademark rights or right of publicity?

What are the options if this is a "tribute band"? I went to see a Journey tribute band earlier this summer and rocked out to the great hits. I had no illusion or confusion that I was going to see the real members of Journey. The name of the cover band didn't even mention Journey. There was a small tag line in the advertising materials saying the group was a tribute band. 

A small tag line is very different from how the Prince "tribute band" is advertising their shows. The purple website, the dove, and the words "purple rain" on the website could all be used to confuse a consumer that somehow this is an authorized tour. This case might come down to less of an issue of copyright infringement, but more of an issue of trademark infringement and unfair competition.  There's also a question of infringing on Prince's right of publicity. In accordance with Minnesota state law, the right of publicity will survive after death.  In the U.S., all of the factors mentioned could potentially weigh in favor of Prince's estate.

I'm not an expert on U.K. law regarding trademarks and unfair competition so I asked my colleague Claire Freeman with Dummett Copp to share her thoughts on the law in the U.K.

“We don’t have personality rights or unfair competition laws in the U.K. Prince’s estate will need to rely on the U.K. laws of passing off and/or trade mark infringement.  For an action under passing off to succeed, the estate must show that fans are mistakenly under the impression that the production has been endorsed by Prince’s estate.  Their chances of success will depend on the court’s assessment of the facts of the case and in particular on the way in which Prince’s name is being used."

Claire went on to say, "In June of this year, Prince’s record company, NPG Records Inc, filed both a U.K. and European trade mark application for the mark PURPLE RAIN presumably in order to try and help them win this legal battle.”

Here's a link to some other interesting tribute band litigation.

Entertainment Law Update Episode 87 - Tamera Bennett and Gordon Firemark

Entertainment Law Update Podcast Tamera Bennett Gordon Firemark

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the latest entertainment law issues on the Entertainment Law Update Podcast.

Click the arrow below to listen or click the "Apple" below to subscribe in iTunes.

In Episode 87 of the Entertainment Law Update Podcast, Tamera and Gordon discuss the latest news and cases involving copyright, trademark, film, TV, and other entertainment law issues.

These cases and much more on this episode of the Entertainment Law Update Podcast.

Please leave us listener feedback at the iTunes store. Your comments will help other folks find our podcast

This post contains affiliate links. That means if you click a link I may receive a benefit.