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Entertainment Law Update Podcast Launching

Launching April 20th, Entertainment Law Update is an audio podcast featuring Entertainment lawyers Gordon P. Firemark and Tamera H. Bennett. Every month, our hosts and guests will survey the legal landscape of the entertainment industry, discussing the top cases and news stories of interest to lawyers and entertainment business professionals.

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Each episode will feature a news roundup, discussion of recent case law, and an in-depth discussion on a legal issue, or other practical topic of interest to our listeners.

Attorneys who listen can opt into receiving continuing legal education credit*, and the programs will be of interest to all entertainment and media professionals.

Producer and host Gordon Firemark says, “We’re really hoping this will be a dialogue with our audience. Listener feedback is more than just welcome, we’re counting on it. Our colleagues in the legal profession are encouraged to submit topic ideas, and we hope to select guests to join us from those who submit ideas.”

Listeners can find (and listen to) the podcast at http://www.entertainmentlawupdate.com or can subscribe using the iTunes store** or the handy links on the website.

*(pending approval by applicable bar associations) **(available soon)

Seton Hall Call For Journal Articles

by Tamera H. BennettApril 23, 2008

The folks over at Seton Hall Law Review requested I pass along the following information:

Journal of Sports and Entertainment Law Call for Submissions!

The Seton Hall School of Law Journal of Sports & Entertainment Law is seeking submissions for possible publication in future issues. If you are a law professor, other type of professor, practicing attorney, judicial clerk, law student, or graduate student who has written a substantive piece that pertains to sports or entertainment law, please consider submitting your work.

For more information or to submit a piece, please e-mail Tara Touloumis, Articles Editor, ttouloumis at gmail.com. Thank you!

December 07 Copyright Cases: Texas

By Tamera H. Bennett and Stephanie PrinceJanuary 14, 2007

Filings for the last month of the year were a little crazy in the copyright arena. The filings are organized by Federal District.

Eastern District

Butler v. Elsevier et al (4:2007cv00557) Plaintiffs filed suit on December 13, 2007 against Elsevier, Inc. and others alleging Defendants violated Plaintiffs’ exclusive rights in several horse hoof drawings by publishing unauthorized copies of the drawings in the Defendants’ book entitled Equine Podiatry. Plaintiffs further complain Defendants’ attempt to obtain permission in a letter sent after the publishing of Equine Podiatry and the unauthorized copies of the drawings was too late.

Plaintiffs seek injunctive relief, the impounding and confiscation of all copies of Equine Podiatry, damages, costs, and attorneys’ fees.

Corbello v. DeVito (1:2007cv00985) Read summary here.

The film companies are busy filing for copyright infringement for unauthorized copying and distribution of motion pictures over the Internet in the Eastern District. Warner Bros. Entertainment, Inc. et al v. Musacchio (4:2007cv00542) Warner Bros. Entertainment, Inc. v. Shedrick (1:2007cv00945) Screen Gems, Inc. v. Dews (1:2007cv00946) Warner Bros. Entertainment, Inc. et al v. Braggs (1:2007cv00947)

Northern District EsNtion Records, Inc. v. JonesTM, Inc. et al (3:2007cv02027) Read summary here.

A1 Surveillance Systems, LLC v. Remarkable Surveillance Systems, Inc. (3:2007cv02037) A1 Surveillance Systems filed suit on December 6, 2007 against Remarkable Surveillance Systems. The complaint alleges Defendant used Plaintiff’s layout, site structure, programming, text descriptions for products and text descriptions for categories of products on its website. A1 seeks injunctive relief, damages, costs, and attorneys’ fees.

KB Home v. Antares Homes, LTD (4:2007cv00761) KB Home filed suit on December 7, 2007 against Antares Homes, LTD, Antares Homes, LLC, Antares GP, LLC, and Ronald F. Formby. The complaint alleges Formby, in his capacity as Plaintiff’s Vice President of Sales, and through later visits to KB Home’s properties in his capacity as an officer of Defendant, had the opportunity to willfully copy and did willfully copy several different KB Home plans, to which Plaintiff lawfully holds the copyrights.

The complaint further alleges Formby, through the businesses he formed, including Defendant Antares LTD, Antares Homes, LLC, and Antares GP, published simplified home plans based on copies of Plaintiff’s copyrighted designs, in brochures and on the internet; created architectural technical drawings substantially similar to each of Plaintiff’s copyrighted designs, and sold single family homes that were substantially similar to each of Plaintiff’s designs.

Plaintiff seeks injunctive relief, damages, costs, and attorneys’ fees.

Southern District

McDonald v. The Motherhood Center, Inc. (4:2007cv04188) Shannon McDonald filed suit on December 10, 2007 against The Motherhood Center, Inc., and Gabriela B. Gerhart. The complaint alleges Defendants printed, published, and distributed Plaintiff’s photographs in marketing materials to promote The Motherhood Center without Plaintiff’s consent or authorization. The complaint further alleges Defendants continued to infringe on Plaintiff’s copyrights subsequent to Defendants’ receipt of a letter notifying them of their infringing acts.

Plaintiff requests injunctive relief, seizure of the infringing materials, damages, costs, and attorneys’ fees.

The record labels are busy with copyright infringement claims for unauthorized downloading and distribution of music in the Southern District of Texas. Warner Bros. Records, Inc. v. Latham (4:2007cv04525) Warner Bros. Records, Inc. v. Grover (4:2007cv04528) Maverick Recording Company v. Blackburn (4:2007cv04528)

Western District Versata Software, Inc. v. General Electric Medical Systems, Inc. (1:2007cv02023) Versata Software, Inc. filed suit on December 14, 2007 against General Electric Medical Systems, Inc., General Electric Company, GE Healthcare, Inc., and GE Medical Systems Information Technologies, Inc. alleging breach of contract, copyright infringement, misappropriation of trade secrets, tortious interference with a contractual relationship, and unjust enrichment

Plaintiff, a company engaged in the research, development, and sale of computer software, entered into a contract with Defendant General Electric Medical Systems in 1996 granting Defendant a nonexclusive and nontransferable limited license to use certain software developed and owned by Plaintiff. The parties also entered into a Professional Services Agreement, under which Plaintiff provided Defendant with ongoing professional consulting services.

In 2001 Defendant cancelled Plaintiff’s services agreement, leading Plaintiff to believe Defendant had also abandoned use of Plaintiff’s software products. Plaintiff learned in 2005 that Defendant continued to use, reproduce and distribute unauthorized copies of the software. After negotiations failed, Plaintiff filed this action for. Plaintiff seeks injunctive relief, an order requiring destruction of all unauthorized copies of Plaintiff’s software, damages, costs, and attorneys’ fees.

Broadcast Music, Inc. v. Vicci, Inc. (1:2007cv00981) Suit alleging unauthorized public performance of musical copyrights.

BMG v DOE, DOE AND MORE DOES BMG filed four suits in the Western District of Texas against John Doe plaintiffs alleging Plaintiff downloaded and distributed Plaintiffs’ copyrighted music files over the internet in violation of Plaintiff’s exclusive rights. BMG Music et al v. Doe (1:2007cv01054) BMG Music et al v. Doe (1:2007cv01047) Sony BMG Music Entertainment et al v. Doe (1:2007cv01063) Interscope Records et al v. Doe (1:2007cv01057)

Tamera Bennett Music Publishing Basics in Fort Worth

by Tamera H. BennettDecember 20, 2007

Hard to believe 08 is here in two weeks. Please support the Fort Worth Chapter of the Nashville Songwriter's Association on Monday, January 7, 2008 by attending their monthly meeting.

I will be presenting "How The Money Flows: Music Publishing 101."

Upcoming Texas Music, Film CLE

by Tamera H. Bennettposted September 19, 2007 No need to travel to Nashville, LA or New York for great entertainment CLE or music business events. Please check out the following programs:

17th Annual Entertainment Law Institute Sponsored by TexasBarCLE and the Entertainment & Sports Law Section of the State Bar of Texas. October 10-11, 2007, Austin, Texas. Speakers include:

Mike Tolleson Stan Soocer Daryl P. Friedman Tamera H. Bennett William J. Chriss Marybeth Peters Michael Perlstein D'Lesli M. Davis Julie Anne Ford Ed Fair Tim Mandelbaum Jeff Begun Bob Hudgins Brian O'Leary - Tax Counsel, NBC Buck McKinney Steve Winogradsky Jeff Biederman David Lessoff Neville Johnson Bernard Resnick John C. Ale Layne Lauritzen Chuck Flood Jody Williams Clay Bradley --Assistant VP A&R, RCA Records Craig Hayes -- Zumwalt, Almon & Hayes Robert H. Kohn Chris Castle Maureen A Doherty -- Entertainment Attorney Harold Brook Pearlena Igbokwe Amen Najjar Timothy Davis Kevin Robinson Woodie Dixon

Music Law Bootcamp presented by the Dallas Bar Association Sports & Entertainment Law Section, October 26, 2007, Dallas, Texas. Speakers Include:

Linda Septien - Septien Entertainment Group Tamera Bennett – Bennett Law Office / Farm to Market Music Casey Monahan - Director, Texas Music Office Craig Barker -- Music Business Attorney

Gretchen Peters Songwriting Workshop presented by the Nashville Songwriter's Association International, Fort Worth Chapter, November 1, 2007.

RoyaltyWeek E-Newsletter Music Business Royalties

by Tamera H. BennettAugust 23, 2007

For concise and current information on what is happening in the world of music royalties, visit www.royaltyweek.com and subscribe to their free weekly newsletter.

Our friend Steve Winogradsky has an article in the August 22, 2007 issue on the economics of iTunes.

Who Pays the Songwriter Under First Sale Defense?

by Tamera H. BennettAugust 20, 2007

Universal Music Group sued Troy Augusto for copyright infringement based upon Mr. Augusto’s offering for sale and selling of musical compact discs marked “Promo Only.” Mr. August secures promotional compact discs from various sources and then sells them on eBay.

Pursuant to 17 U.S.C. § 109(a), musical compact discs/tapes/albums can be sold or otherwise disposed of by the party in possession of the compact disc, without authority from the copyright owner. The big question raised in the lawsuit and other articles reporting the lawsuit revolves around the marking of the compact discs as Promo Only along with other legends regarding not selling the CD’s overriding the language of § 109(a).

Here is my question for the day that has yet to be addressed: Who pays the artist, producer, music publisher/songwriter and yes even the record label when “promo only” copies are sold?

Assume I am a music publisher. I will issue a license to Universal for one of their artists to record one of my songs. I will include language in the license similar to the following:

…provided, however, that no such royalty shall be payable with respect to promotional Phonorecords sent to disc jockeys, reviewers, and the like, which are clearly marked “Promotional Records Not For Sale” and which are not being distributed by Licensee for resale.

In my scenario, as the publisher I consent to a certain number of promo copies being manufactured and distributed and agree not to collect a royalty for those copies.

Suddenly, with the proliferation of online retailers such as Augusto, more and more royalty free recordings are moving in the marketplace without payment to the songwriter, publisher, artist, producer and label.

What is the solution? I am not sure. As much as I would like to see Universal prevail in this case and have a court announce Augusto’s action constitute copyright infringement, I do not think that is going to happen.

With a huge percentage of record labels providing digital content to radio stations and promoters, I wonder exactly how many promo copies are even pressed these days. Maybe this issue will resolve itself as fewer and fewer actual compact discs are made.

TUR JOINS YOUTUBE CLASS ACTION SUIT

by Tamera H. BennettAugust 8, 2007

Robert Tur, the cameraman and copyright owner that filed the first lawsuit against YouTube for copyright infringement, will dismiss his case in California against YouTube and join forces with the Football Association Primer League and the Bourne Company to battle YouTube in district court in New York.

Additional plaintiffs to join the class action include the National Music Publisher's Association, Finnish Football League Association, the U.K.'s Rugby Football League, X-Ray Dog Music, Knockout Entertainment Limited, and Seminole Warriors Boxing.

COPYRIGHT OFFICE REVISES SEARCH DATABASE

by Tamera H. BennettAugust 7, 2007

FROM THE COPYRIGHT OFFICE

IMPROVED COPYRIGHT SEARCH SYSTEM TO REPLACE CURRENT SEARCH SYSTEMS IN MID AUGUST

In mid August, the Copyright Office will launch a powerful new records search system that accesses more than 20 million digital records of registrations and recorded documents from 1978 to the present. The new system allows searching by title, name, keyword, and registration or document number. Through a command keyword search, elements of any or all fields can be combined to search the records.

Users can also search by type of work, such as sound recordings, dramas, motion pictures, visual materials, or preregistrations. The search method combines three separate databases that previously permitted only limited searching. The search tool uses Voyager software, the same system used by the Library of Congress Online Catalog.

For a tutorial on searching with the new system, go to:

http://www.copyright.gov/records

YOUTUBE INTRODUCES VIDEO RECOGNITION

by Tamera H. BennettJune 12, 2007

Google announced today plans to implement video recognition in conjunction with video postings on YouTube.

YouTube executive Chris Maxcy told news agency Reuters the tool would be tested in a month's time. The tool, when implemented will allow a "fingerprint" to be placed on copyrighted videos. The copyright holder could then determine whether or not a posting remains on YouTube. If a posting remains on YouTube, there is talk of a revenue sharing arrangment between YouTube and the copyright owner.

The technology will be beta tested with numerous partners such as Time-Warner and Disney. If successful, the product will be rolled-out to all copyright owners.

At least YouTube can not longer argue they do not have the technology to block infringing posts. Are the impending lawsuits finally making YouTube and Google realize the shield of the DMCA may eventually be removed?

I applaud YouTube/Google for moving in the right direction. It still frustrates me as an attorney and an owner of intellectual property that the burden will continue to remain on the copyright holder to police the content on YouTube.

Reuter's Report Read the BBC report Read the Houston Chronicle article

TAMERA BENNETT ADDS MEDIATION PRACTICE

May 20, 2007 Attorney Tamera H. Bennett recently received her certificate of completion of the Texas 40 Hour Mediation Course. Tamera will be available to mediate business conflicts with an emphasis on trademark, copyright and entertainment law disputes.

For more information, feel free to contact Tamera at info@tbennettlaw.com.