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Entertainment Law Update Podcast - Episode 105 Tamera Bennett and Gordon Firemark

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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.

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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 104 Tamera Bennett and Gordon Firemark

Entertainment Law Update Podcast Episode 104 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. This episode is also a wrap up of some of the top cases and topics discussed in 2018.

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 103 Tamera Bennett and Gordon Firemark

Podcast ep 103.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.

Entertainment Law Update Podcast - Episode 102 Tamera Bennett and Gordon Firemark

Podcast ep 102.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.

Entertainment Law Update Podcast - Episode 101 Tamera Bennett and Gordon Firemark

Podcast Ep 101.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.

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.

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

Entertainment Law Update Podcast - Episode 99 Tamera Bennett and Gordon Firemark

Entertainment Law Update Podcast 99 Tamera Bennett Gordon Firemark #podcast #musicbiz #copyright #trademark.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.

Entertainment Law Update Podcast Episode 97 - Tamera Bennett and Gordon Firemark

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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 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 clink, I may receive a benefit.

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.