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Entertainment Law Update Podcast - Episode 100 Tamera Bennett & Gordon Firemark

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100 episodes later and the Entertainment Law Update Podcast is still going strong!

Listen to Dallas-area music lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark discuss the legal highlights from the past nine years on this very special episode of the Entertainment Law Update Podcast. Yes, we said "Righthaven" one more time.

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

In this very special episode Tamera and Gordon covered:

and much more.

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

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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.

Five Things You Need to Know About Filing A DMCA Designated Agent

Five Things You Need To Know About Filing a DMCA Designated Agent #createprotect #copyright #dmca

Enacted in 1998 as part of the Digital Millennium Copyright Act (“DMCA”), 17 USC Sec. 512 established a system for copyright owners and online entities to address online infringement.

Does Your Website Have Third-Party Generated Content?

If you are a service provider (the term service provider includes web sites) that allows the upload of third-party generated content, you may have limitations on liability if you fulfill certain requirements. One requirement is registering a Designated Agent with the U.S. Copyright office to receive notice of infringing content posted on your website.

Why Should I Register a DMCA Designated Agent?

To protect your business from certain claims of copyright infringement.

By What Date Do I Need to Re-Register?

New regulations went into place on December 1, 2016, the same date the U.S. Copyright Office launched a new electronic system and directory. The new electronic DMCA Registered Agent registration system will expedite the process of recording and searching for Registered Agents. Any service provider that has previously designated an agent with the Office will have until December 31, 2017 to submit a new designation electronically through the new online registration system.

As part of the transition to the new system, the Office’s present public directory of designated agents, generated by service providers’ paper filings, will be phased out on December 31, 2017. Until that time, an accurate designation in the old paper-generated directory will continue to satisfy the service provider’s obligations under section 512(c)(2), and the public will need to continue to search the paper-generated directory if the service provider is not yet listed in the new electronically-generated directory.

Where Do I Register My DMCA Designated Agent?

You can register online for only $6 via the U.S. Copyright Office.

How Does Someone File A Notice of Claimed Infringement When I Have a Designated Agent?

When a copyright owner’s work is allegedly being infringed on or through a service provider’s service, the copyright owner may send a notification of claimed infringement (often referred to as a “takedown notice”) to the service provider’s designated agent. For takedown notices to be legally effective, they must be provided to a service provider’s designated agent in writing and include substantially the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

17 U.S.C. § 512(c)(3)(A). Upon receipt of a compliant takedown notice, a service provider must respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of the infringing activity. If a service provider fails to do so, it may lose its safe harbor protection and be subject to an infringement suit.

Five Things Copyright Law Does Not Protect

Five-things-copyright-law-doesn't-protect #copyright #createprotect Texas-copyright-lawyer-tamera-bennett

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.

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.

 

 

Texas Music Lawyer Tamera Bennett Speaks at SXSW 2016

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Texas music and trademark lawyer Tamera Bennett is honored to join her colleagues Paul Bezilla, Lynn Morrow and Kelly Vallon presenting "Developing An Indie Artist's Career Using Their Money on Others'" on Friday, March 18, 2016 at the SXSW Music Conference.

Here's a link to the materials for the presentation. And you can click the slideshow to the right of this post.

Entertainment Law Update Podcast - Episode 70 - Tamera Bennett - Gordon Firemark

2015 Top Cases from Entertainment Law Update Podcast

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Click the arrow below to listen to Episode 69.

California film/TV lawyer Gordon Firemark and Dallas music/trademark lawyer Tamera Bennett, wrap up and count down the top entertainment law cases of 2015 on Episode 69 of the Entertainment Law Update Podcast.

The countdown includes:

Santa Claus is Coming to Town Copyright Grant Termination ruling
Happy Birthday Copyright - Case Settled
Lenz v. Universal - Dancing Baby - Must Make Fair Use Determination
Blurred Lines Case - on Appeal
Innocence of Muslims Ruling (and possible  en banc review)
Pre ‘72 Copyrights – Turtles - Class Action claimants settle without the Turtles
Copyright Office Music Licensing Study – the history and the future
Point Break Live ruling - stage performance (not the new movie)
Monkey Selfies

Is The DMCA Working? Call for Comments From U.S. Copyright Office

Is The DMCA Working? createprotect.com attorney-tamera-bennett

Announced December 30, 2015, the United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code - the DMCA Safe Harbor Provision.

While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement.
— Copyright Office

Section 512 was added to the U.S. Copyright Act in 1998 to help foster growth of the Internet and provide protection to internet service providers for copyright infringement liability when certain procedures were followed.

Currently, Google receives close to 20,000 DMCA takedown requests per week. In light of a Sept. 2015 holding in Lenz v Universal, Google and other service providers must now consider a fair use analysis before taking down content once a DMCA takedown notice is received.

What do you think, is the DMCA working? Should the burden be on the content owner to send the takedown notice? Should the burden be on the Internet Service Provider to analyze fair use? Should the burden be on the content user to get a license or determine fair use?

Leave your thoughts in the comments section below and file comments with the Copyright Office.

Music In Political Campaigns - What Licenses Do I Need?

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As the 2015/16 presidential election campaign trail heats up, we will hear more and more music and perhaps see more and more demand letters from artists/songwriters to the presidential candidates.

In the podcast below, Dallas copyright and music attorney Tamera Bennett explores questions related to public performance licenses, synchronization licenses, master use licenses and right of publicity -- all related to music used in presidential campaigns.

Theme Songs |

Presidential candidates love to pick theme songs. That's all fine and dandy when the artists and songwriters behind the selected tune support the candidate - - Bill Clinton and Fleetwod Mac ("Don't Stop").

So far this season, Donald Trump's campaign has heard from REM and The Rolling Stones.  Neil Young wasn't thrilled about Trump using "Rockin' in the Free World." And,  Aerosmith front man, Steven Tyler asked Trump to stop dreaming and stop using "Dream On."

Legal Issues Stay The Same |

There's nothing new to the legal issues. Do you remember the band Heart being so upset that candidate Sarah Palin used "Barracuda" in the 2008 presidential campaign? How about Newt Gingrich using "Eye of the Tiger?"

The podcast above will answer your questions on how you can use music in a political campaign.  Want to hear even more from Tamera Bennett and Gordon Firemark on the topic - click here for the Entertainment Law Update Podcast where they discuss the latest on Trump and Steven Tyler.

Join Us |

Leave a comment below with your favorite campaign song.

Entertainment Law Update Podcast - Episode 66 - Live from Dallas

entertainment law podcast live dallas tamera bennett gordon firemark september 2015 episode 66

Dallas trademark lawyer Tamera Bennett and Los Angeles film lawyer Gordon Firemark presented the Entertainment Law Update Podcast before a live studio audience at the Dallas Bar Association on September 23, 2015.

With a full house of sports and entertainment lawyers, Gordon and Tamera chatted in detail about the "Happy Birthday" copyright decision, the DMCA dancing baby decision, and other cases of interest. There's also bonus material revealing "behind the scenes of podcasting for lawyers."

Click the arrow below to listen to Episode 66.

Tamera was also interviewed on KRLD radio about the "Happy Birthday" decision. Click here to listen.

Image is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. Attribution: Drumguy880.