Prince

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.

Music, Estates, Taxes and the IRS - Latest On Michael Jackson and Prince

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The Value of Michael Jackson's Right of Publicity

What's the value of a name? That is the question the IRS is asking in a dispute over the post-death value of Michael Jackson's name and likeness.  Under California law, where Michael Jackson resided at the time of his death in 2009, his right of publicity lasts for 70 years after his death. That means his estate can continue to make money from licensing the rights to use Michael Jackson's name, likeness, and voice.

The IRS Court will need to determine the value of Jackson's right of publicity at the date of his death.  The rub is that the family says the value was almost zero at the date of his death because Jackson was taking minimal steps to promote his name and likeness. Post-death, the family ramped up efforts to maximize revenues and did a great job promoting and licensing the name and likeness rights of Jackson. The IRS claims they are entitled to the increase in value, not just the purported value at death.  The asserted value at death was $2,105. The IRS claims the value is closer to $434 million.

The valuation does not take into account revenues from song or sound recording copyrights owned or licensed by Jackson.

Hindsight might be 20/20.  Music attorney Tamera Bennett was interviewed in 2009 on the value of the Jackson estate and stated, "Michael Jackson’s most valuable asset is his name and likeness, ie, his right of publicity. This right is descendible under California law. For estate tax purposes the value of his right of publicity is speculated to exceed the liquid assets of his estate."

Prince's Estate Tax Payment Could Have Been Reduced

Prince died in April 2016 without a will, trust, or other estate or tax planning documents in place. In a worst case scenario, Prince’s estate is subject to a federal tax of 40 percent and Minnesota’s state tax of 16 percent. In January 2017, Prince's estate had to make its first estate tax payment to the IRS. It's estimated the estate will owe $100 million in taxes.

Like the Jackson estate, the Prince estate is working to maximize revenues from the music assets. Deals were struck to have Prince's music catalog available on all major streaming services in February. Most likely a choice Prince would have personally hated based on the limited streaming deals he did during his lifetime. Additionally, Universal acquired rights to Prince's "vault" of back catalog recordings that have not been released.

Music attorney Tamera Bennett discussed the Prince estate issue with KRLD radio news manager Mitch Carr in the days following Prince's death. You can listen to the interview by clicking here.

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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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.


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

Drone Law - Special Edition of Entertainment Law Update Podcast Episode 74

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Click the arrow in the box below to listen to Entertainment Law Update Podcast Episode 74.

Attorney Enrico Shaffer from Traverse Legal joins media lawyer Tamera Bennett and film lawyer Gordon Firemark on the Entertainment Law Update Podcast to discuss the latest developments and regulations in the area of Drone Law. After the special conversation with Enrico, please keep listening for the latest on Prince's estate and more.

This informative conversation provides the basic "do's and don'ts" for operating a drone for commercial purposes. Enrico answers questions like, "Could I be fined if I don't have a 333 Exemption?" "Can the FAA regulate drone operations?" "Why can't I fly over a crowd or fly at night?" "What's the difference between a commercial purpose and recreational use of a drone?" "Will Tinkerbell be flying on a drone at Disneyland?"

Below is a partial checklist for compliance with Drone FAA regs (and some common sense). The checklist doesn’t cover everything but is a good place to start. Please review all FAA rules and regulations on commercial operation for drones.

Practice pointer: Have the drone pilot or the camera operator (if it is someone different than the drone pilot) sign a work for hire agreement and/or copyright assignment to make sure the drone pilot cannot claim a copyright interest in the images captured by the camera on the drone.
— Media lawyer Tamera Bennett
  • Maintain a valid Unmanned Aircraft System (sUAS) Registration with the FAA;
  • Drone is physically marked with the sUAS registration number (N-number);
  • Comply with all rules, regulations, and applicable laws whether local, state, or federal for the operation of an Unmanned Aircraft System;
  • Secure an approved FAA Exemption under Section 333 (it could be months or longer before the new Part 107 - which will replace Section 333 - is approved and implemented);
  • Airworthiness certification from the FAA for the drone;
  • Fly the drone below 400 feet and remain clear of surrounding obstacles;
  • Keep the drone within visual line of sight at all times;
  • Remain well clear of and do not interfere with manned aircraft operations;
  • Do not fly within 5 miles of an airport;
  • Do not fly near people or stadiums (500 feet or the equivalent to a city block away from people or structures);
  • Do not fly a drone that weighs more than 55 pounds;
  • Do not fly at night;
  • The operator of the drone holds a valid airline transport, commercial, private, recreational, or sport pilot certificate;
  • Operator of drone will not be  negligent, careless, or reckless in the operation of the drone;
  • Confirm there are no airspace restrictions where the drone will be flown;
  • Maintain a commercial drone liability insurance policy (this will most likely be a rider to a commercial insurance policy).

You can find comprehensive information on drone law issues and FAA regulations at Enrico's website at www.dronelaw.pro. 

We love listener feedback. Michael posted this comment in the Apple iTunes podcast 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!