Entertainment Law Update Episode 81 - Tamera Bennett and Gordon Firemark

entertainment law update episode 81 tamera bennett gordon firemark #podcast #entertainmentlaw

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 to the Entertainment Law Update Podcast or subscribe in iTunes.

In Episode 81 of the Entertainment Law Update Podcast, Tamera and Gordon offer an unscientific take on the top copyright, trademark, film, TV and other entertainment law cases of the year. The round-up includes:

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.


Why You Can't Trademark The President's Name

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In every election year, we see a flurry of trademark applications filed by individuals that want to profit off a candidate's name. Maybe they are for the candidate, or perhaps against. Either way, filing a trademark application that includes, Trump, Hillary, or Bernie is always a waste of time and money.

Since January 1, 2016 over 100 trademark applications have been filed with the U.S. Patent and Trademark that have some reference to "Donald Trump." The applicants filing the marks are not "the Donald" or any business associated with Trump. Those applications have been or will be denied.

Here's Why You Can't Register A Trademark With The President's Name:

Denied registration for not having permission to use Donald Trump's name or image.

Denied registration for not having permission to use Donald Trump's name or image.

1.  You don't have permission: You need permission to use a person's name in a trademark registration.  You'll get this response in an office action refusing your application: Registration is refused because the applied-for mark consists of or comprises a name, portrait, or signature identifying a particular living individual whose written consent to register the mark is not of record.   Trademark Act Section 2(c), 15 U.S.C. §1052(c); TMEP §1206.  Without written consent, you will not be able to secure a trademark registration.

2.  Most likely you are not using the phrase, slogan, or mark as a trademark: If you decided to produce t-shirts, hats or other clothing using the candidate's (or President's) name or likeness, you may get a refusal that your use is merely ornamental. Registration is refused because the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of applicant’s clothing and, thus, does not function as a trademark to indicate the source of applicant’s clothing and to identify and distinguish applicant’s clothing from others.  Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051-1052, 1127.  With respect to clothing, consumers may recognize small designs or discrete wording as trademarks, rather than as merely ornamental features, when located, for example, on the pocket or breast area of a shirt.  Consumers may not, however, perceive larger designs or slogans as trademarks when such matter is prominently displayed across the front of a t-shirt. 

Trademark Application Review Process is Bi-Partisan:

Don't worry that some trademark applications may be accepted and other's denied just because the trademark examining attorney is Republican or Democrat. The rules are applied equally. Since 2008 over 150 trademark applications have been filed by people not related to President Obama that contain the word Obama. Those applications have all been denied registration.

Denied for not having consent to use Obama's name. This application was filed by POM Wonderful. You would think they wouldn't have any tried.

Denied for not having consent to use Obama's name. This application was filed by POM Wonderful. You would think they wouldn't have any tried.

Five Things Copyright Law Does Not Protect

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You know you need intellectual property protection, but you are just not sure how to protect your band name, the family BBQ recipe, or your latest idea. The intellectual property law areas of patent, trademark and copyright are related but protect distinct areas.

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Examples of well-known trademarks include NIKE, CHANEL and ZYRTEC.  Click here to read more about trademark basics.

A patent protects ideas, concepts, systems, or methods of doing something.

Frequently Asked Questions On Things Not Protected By Copyright

Can I copyright my domain name?

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers.

Can I copyright my recipe?

A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.

Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records. See FL 122, Recipes. If you do have a family secret recipe, protecting the recipe as a trade secret may be your best bet. Remember, you have to keep the recipe a secret and the recipe has to bring economic value to your business.

Can I copyright the name of my band?

No. Names are not protected by copyright law.  See Copyright Circular 34 "Copyright Protection Not Available for Names, Titles, or Short Phrases". Some names may be protected under trademark law. Learn more about the basics of trademark law from Attorney Tamera Bennett.

Can I copyright a name, title, slogan, or logo?

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

Can I copyright my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work. To learn more about what is protected by a patent visit the U.S. Patent and Trademark Office website.

Click here for more frequently asked questions on the copyright process.

Entertainment Law Update Podcast - The Top Cases and News of 2016

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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 to the Entertainment Law Update Podcast or subscribe in iTunes.

In Episode 80 of the Entertainment Law Update Podcast, Tamera and Gordon offer an unscientific take on the top copyright, trademark, film, TV and other entertainment law cases of the year. The round-up includes:

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

EntLaw Update does a phenomenal job of keeping you current on issues of interest to anyone working at the intersection of law and media. Hosts Gordon Firemark and Tamara Bennett are personable and engaging, presenting stories in well-organized fashion that often leaves room for humor. As an avid consumer of law podcasts, I have to say this one is my favorite — if you need a reminder that the law isn’t *always* boring, Entertainment Law Update is what the doctor ordered!
— Michael

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Music and Podcasts: How Do I Clear The Music Rights For My Podcast?

Music Rights and Podcasts How Do I Clear The Music Rights For My Podcast? #createprotect attorney-Tamera-Bennett

Media and music lawyer Tamera Bennett presented Legal Issue of Podcasting with attorney Gordon Firemark. You can watch the CLE at TexasBarCLE.  You can listen to the CLE as part of the Entertainment Law Update Podcast. Below is an excerpt from the CLE materials on Music and Podcasting.

Music Issues In Podcasting

Podcasting’s closest relative in the media world is traditional terrestrial radio.  A typical podcast may have the feel of a talk radio show. Podcast topics run the gamut from news, sports, health, the law, politics, religion, technology, entertainment and much more. Like talk radio, music can play an integral part in the feel and a presentation of a podcast. The podcast might be solely focused on music such as a “count down” of this week’s hits, or music may be a little “icing on the cake” for transitions during the podcast.

Just like the podcast is protected by copyright, so are any songs or sound recordings that you may include in an episode of the podcast.

Exclusive Rights of Copyright Owner

The owner of a copyright has a bundle of exclusive rights:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.  17 U.S.C. § 106.

These rights can be licensed by the copyright owner individually or as a whole; exclusively or non-exclusively.

Song Copyright and Sound Recording Copyright In Podcasts

Whether you’re talking intro and outro bumper music, or a whole podcast dedicated to music, you have to understand the different rights attached to a music copyright along with the different music licenses that may be involved.

When discussing the music and who owns what rights, it's important to note that there are two copyrights involved in each musical recording. 17 U.S.C § 102.  The copyright that attaches to the song covers the words, music, and the arrangement. Sound recordings are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” 17 U.S.C. § 101.  The song copyright is owned by the songwriter or a music publisher who was assigned the copyright.  The copyright in a particular version of a recording is owned by the artist or record label who was assigned the copyright. 

As an example of the difference between owning the song copyright and the master/sound recording copyright, recall that Dolly Parton is the songwriter of the hit song “I Will Always Love You.” Neither Dolly Parton nor the music publishing company that owns the song copyright for “I Will Always Love You,” have any ownership in the sound recording copyright for the version of the song recorded by Whitney Houston for the movie “The Bodyguard.” Nor does the record label or Whitney Houston’s estate have any ownership in the song copyright.  The song and the sound recording are two distinct copyrights with different owners.

Streaming vs Download For Music In Podcasts

Because podcasts can be delivered to consumers in two different manners - streaming or download – multiple rights are triggered and need to be licensed. These multiple rights and licenses apply separately and distinctly to the song and sound recording.

Songs – Musical Compositions In Podcasts

A song copyright encompasses the words, music, and the arrangement. The copyright owner of a song has an exclusive right to license the public performance of the song as well as the mechanical reproduction of the song. A public performance of a song occurs when it is streamed as part of the podcast. This is analogous to listening to the song on the radio.  If the podcast can also be accessed by download, the exclusive right of reproduction – or mechanical right – is also triggered.  In traditional media, we think of a mechanical license being needed when a music compact disc or music download is purchased.

What does this mean for the podcaster who wants to include music in her podcast? In short, if the podcast can be consumed by both streaming and download, the podcaster needs both a public performance license and mechanical license whenever a song or a portion of a song is included in the podcast.

Public Performance Right For Songs In Podcasts

A public performance of a song occurs when the song is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.

In the United States, we have three major societies that collect all of the public performance payments for the various different licensees of music. Radio stations, TV networks, and nightclubs are a few of the types of businesses that publicly perform music and need a license.  What is nice about the public performance licensing scheme is that you can secure a blanket license which will allow you to publicly perform all songs in the performance right society’s catalog. You don’t have to go back for individual song licenses.  If you have a variety of music in your podcast and are unable to limit your music selections to those licensed by one performance rights society, you will need web licenses from ASCAP, BMI and SESAC.  While license fees will vary, you can estimate a minimum annual license around $300.00 for each society.

Most podcasts are embedded or streamed from a blogging or website platform. When you go to license the rights for public performance in the United States, the licenses are not typically named a “podcast license.”  At www.ascap.com the licenses are labeled for “website and mobile apps.” Search www.bmi.com under the “digital licensing center.” And, search www.sesac.com for “internet licensing.”

Mechanical Reproduction Right of Songs In Podcasts

Potentially two different mechanical uses are triggered when a podcast is accessed. If a podcast that contains music is downloaded, a permanent digital download (PDD) occurs with each individual digital delivery transmission resulting in a reproduction made by or for the recipient which may be retained and played by the recipient on a permanent basis. PDDs are sometimes referred to as full downloads or untethered downloads.  Even though the song is part of and incorporated into the podcast, the use is considered a PDD and requires a mechanical license and mechanical royalty.

The second mechanical right is triggered by interactive streaming. Streaming means listening to the podcast (which contains music) in real time, instead of downloading a file to your computer or mobile device and listening to it later.  There are two types of streaming: interactive and non-interactive. Streaming of content is considered interactive, or on-demand, when the listener can request the specific recording they wish to hear and the digital file is transmitted electronically to a computer or other device contemporaneously with the user's request.  17 U.S.C. § 114(j)(7).  Because the end user can control when they stream the podcast, the action is considered interactive. Other examples of interactive streaming include services such as Spotify, Beats Music, Google Play Music All Access, and Xbox Music.

Both the PDD and interactive streaming of the songs require a mechanical license. Does it matter how much of the song is used? Probably not. Unless the podcaster is able to fit within a fair use exemption for using the song, a mechanical license will be required. (See 17 U.S.C. § 107 for more on fair use). The leading collective for securing mechanical licenses is the Harry Fox Association (HFA). It is very important to realize that HFA does not have the rights to every song that a podcaster might want to include. Unlike a public performance license, there’s no ability to secure a blanket license for the podcast. Individual licenses must be secured for each song. Visit “digital licensing” at harryfox.com for more information on mechanical licenses for songs in podcasts. Because HFA does not have the rights to license every song, the podcaster may have to contact individual music publishers for the rights needed.

The current mechanical rate for a PDD is 9.1 cents per song per download. The rates for interactive streams are determined by a number of factors. These include service offering type, license type, service revenue, recorded content expense, and applicable performance royalty expense. 

Keep in mind the rights, licenses and rates are only for the United States. Each country has its own licensing procedures. As an example, in the UK and Australia, podcasters can license the public performance right and mechanical rights from a single organization in each respective country.

Sound Recordings or Master Recordings for Music In Podcasts

If securing the rights for the song wasn’t tough enough, a podcaster must also secure the rights for the version of the song – the recording – she wants to use. Performing the song in the podcast is a “digital audio transmission” of the sound recording. 17 U.S.C. § 106(6). With the master, two different rights are triggered.  A digital public performance right and a reproduction right – more commonly known as a master use.

A podcast is considered an interactive stream because the consumer can select when they play the podcast. A podcast is not the same thing as internet radio. Internet radio is non-interactive meaning the user cannot choose the track or artist they wish to hear.  The Digital Performance in Sound Recordings Act of 1995 created a statutory license for subscription-based, non-interactive digital audio transmissions.  17 U.S.C. § 114.  In 1998, Congress passed the Digital Millennium Copyright Act, which expanded the statutory license to include non-subscription, non-interactive digital audio transmissions.  License fees for non-interactive uses are pre-determined by a rate determining body called the Copyright Royalty Board, are non-negotiable and paid by the internet radio stations, webcasters and satellite radio stations to SoundExchange (the entity designated to collect the royalties) as a digital performance royalty. 37 C.F.R. Part 380.

You need to understand that SoundExchange cannot help you license sound recordings for a podcast.  In fact, SoundExchange states the following:

Interactive streaming and downloads: In addition, the statutory license administered by SoundExchange does not cover interactive streaming or downloads of any kind, including downloadable “podcasts” of archived programming. If you are offering podcasts that include sound recordings, then you may need to obtain a direct license.
— SoundExchange Memo to All Commercial Broadcasters dated Nov. 21, 2014

Because of the interactive nature of on-demand services, there is no statutory scheme or Copyright Royalty Board determining licensing rates.  The on-demand services must secure direct sound recording licenses from the owners of the sound recording copyrights in order to stream.  Royalty rates for on-demand services are negotiated between the sound recording copyright owner and the podcaster.

What does this mean for the podcaster? It means you have the obligation to secure a direct license for each sound recording that is in an episode of a podcast. You will have to negotiate direct licenses that will cover the digital public performance right and the reproduction/master use right. There are some companies that provide clearing house licenses for interactive sound recording uses. While I do not endorse or recommend any particular services, MediaNet (mndigital.com) is used by many large interactive streaming services for clearing popular music rights.  Their pricing may or may not be practical depending on the reach and scope of your podcast.

Possible Solutions For Music In Podcasts

Don’t give up hope yet. You may still be able to have music in your podcast.

The easiest solution to using music in your podcast is to secure music from a stock music library that has already pre-cleared all the necessary rights. It’s your job to read the license from the stock music library to determine if you have the rights for a digital interactive public performance of the song, permanent digital download of the song, interactive digital public performance of the sound recording, and master use/reproduction of the sound recording.  Keep in mind, most choices from a music library will probably be original music tracks created for the library. This means, using the latest Beyoncé track is probably not an option.

Another option is to hire musicians to record original music and sound recordings for you. Again, you need to secure in writing all of the appropriate rights.

You might also hire musicians to re-record some popular songs for you. Make sure you secure in writing the ownership and all copyrights in the re-record. In this situation, you would only need the public performance licenses from ASCAP, BMI and SESAC; and mechanical licenses from HFA.  By re-recording the popular songs, you’ve eliminated the need for any negotiated licenses for using the original sound recordings.

If you're interested in more hot topics in podcasting legal issues, visit the Google+ Community hosted by Tamera Bennett and Gordon Firemark.  Also, subscribe to the Entertainment Law Update Podcast so you don't miss any updates.


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Entertainment Law Update Podcast - Live From Austin - Episode 79

#podcast #entlawupdate Attorney Tamera Bennett Attorney Gordon Firemark Entertainment Law Update Podcast News

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 to the Entertainment Law Update Podcast or subscribe in iTunes.

In Episode 79 of the Entertainment Law Update Podcast Tamera and Gordon record live at the TexasBarCLE Entertainment Law Institue CLE. Professor Stan Soocher joins them as a guest co-host. 

Entertainment Law In the News Discussed:

Prof. Stan Soocher Interviews Tamera Bennett and Gordon Firemark:

  • For a fun change of pace, rolls are reversed and Tamera and Gordon are interviewed on the "Laws of Podcasting."
  • Insight on using music in podcasting
  • Name and likeness releases for podcasting
  • Protecting your content when you podcast
  • and much more

You can find more links to stories discussed on Google+ in the "Legal Issues of Podcasting" Community.

Please leave us listener feedback at the iTunes store.

Gordon and Tamera select current situations in entertainment law to update attorneys and others. Their discussions are highly informative, a great review of the law, and easy listening. A pleasure to tune in - how often can you say that about a CLE?

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7 Questions for Authors to Ask Before Signing a Book Contract

Media and copyright lawyer Tamera Bennett presented 7 Questions for Authors to Ask Before Signing a Book Contract to the students enrolled in the "Author's Job" course presented by Creative Enterprises Studios.

Seven Questions for Authors to Ask Before Signing a Book Contract:

  1. Who owns the copyright in my book?
  2. How do I register a copyright?
  3. What are the options for publishing my book?
  4. What rights will the book publisher want?
  5. What will I get paid?
  6. When will I get paid?
  7. How can I cancel the book contract?

Bonus topics on trademark law and book publishing:

You can view the slide show above.

 

 

Entertainment Law Update Podcast - Episode 77 Gordon Firemark & Tamera Bennett

Entertainment law update podcast tamera bennett gordon firemark #entlawupdate #entertainmentlaw Texas music and media lawyer

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 to the Entertainment Law Update Podcast or subscribe in iTunes.

In Episode 77 of the Entertainment Law Update Podcast Tamera and Gordon ponder:

These stories and more on this episode of Entertainment Law Update with Tamera Bennett and Gordon Firemark.

Please leave us listener feedback at the iTunes store.

EntLaw Update does a phenomenal job of keeping you current on issues of interest to anyone working at the intersection of law and media. Hosts Gordon Firemark and Tamara Bennett are personable and engaging, presenting stories in well-organized fashion that often leaves room for humor. As an avid consumer of law podcasts, I have to say this one is my favorite — if you need a reminder that the law isn’t *always* boring, Entertainment Law Update is what the doctor ordered!
— Michael

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

Tech And Music Industry Updates - Listen On Audible

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Who knew Audible.com would be such a great resource for keeping up with the latest in the intersection of tech, copyright, and the music industry? I guess these days it's not so much an intersection as it is daily life that all three go together. Audible.com is now offering "Channels" with short-form news and podcast segments.

This post brought to you today by Audible. Consider joining Audible to listen to audio books, news, and more.

For your listening enjoyment:

Tech Giants Boast an Edge in Music Streaming

Release Date: 07-25-16

Publisher: The Wall Street Journal

Written by: Hannah Karp

Narrated by: Alexander Quincy

Length: 5 mins

 

How Apple Sold a Million Drake Albums in Five Days

Release Date:05-07-16

Publisher: The Wall Street Journal

Written by: Hannah Karp

Narrated by: Paul Ryden

Length: 5 mins

 

Prince Went to Some Astounding Lengths to Protect His Music - and His Image

Release Date:04-25-16

Publisher: PRI's The World

Written by: Shirin Jaafari

Narrated by: Marco Werman

Length: 5 mins
 

Google Wins Java Copyright Case Against Oracle

"Google Wins Java Copyright Case Against Oracle" is from the May 26, 2016 Tech section of The Wall Street Journal. It was written by Jack Nicas and narrated by Alexander Quincy.


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