"When The Band Gets Divorced - Mediating The Band Partnership Dispute"

"When The Band Gets Divorced - Mediating The Band Partnership Dispute"1 hr CLE pending

Join attorney/mediator Tamera Bennett at the Belo Mansion at Noon on Wednesday, March 27, 2013 for a discussion on common issues band members mediate when a member departs and/or the band dissolves.

We'll be taking a look at the "Sugarland" partnership dispute, the recent "En Vogue" dispute, as well as the "J Geils Band" dispute and applying those fact patterns to structuring a successful mediation for your client.

Dallas Bar Association Belo Mansion 2101 Ross Avenue Dallas, Texas 75201 214-220-7400

Bikram Yoga Protected by Trademark NOT Copyright - It's Hot!

Updated October 13, 2015 -

The Ninth Circuit Court of Appeals affirmed the partial summary judgment finding yoga sequences are not protected by copyright law. See BIKRAM'S YOGA COLLEGE OF INDIA, LP v. EVOLATION YOGA, LLC, No. 13-55763 (9th Cir. Oct. 8, 2015).

The court states:

Although there is no cause to dispute the many health, fitness, spiritual, and aesthetic benefits of yoga, and Bikram Yoga in particular, they do not bring the Sequence into the realm of copyright protection. The Sequence falls squarely within Section 102(b)'s exclusions from copyright protection, no matter how it is labeled or how ably the label is argued. Therefore, the district court properly granted Evolation's motion for partial summary judgment.


Original Post on January 4, 2013

U.S. Copyright Office - No Protection for Yoga Sequence

Get Hot -- The US Copyright Office issued a ruling in June 2012 that yoga sequences are not protected by copyright.  Studios offering "hot yoga" should now be in the clear from lawsuits brought by Yogi Bikram Choudhury so long as the name BIKRAM is not used. Yogi Bikram Choudhury developed the "Bikram" style of hot yoga and according to records at the U.S. Patent and Trademark Office has been using the brand name "Bikram" since 1971 in offering his yoga classes and instructional materials.  The craze of "hot yoga" (which even as a yoga student, I do not understand), has taken the U.S. by storm.

Choudhury, diligent about licensing his rights to the BIKRAM trademark and instructional method, sues yoga studios offering "traditional hot yoga"  even if the name BIKRAM is not used to describe the course.  Choudhury has multiple copyright registrations for his yoga instructional videos and materials.  He is claiming a copyright in the sequence which is a compilation of 26 poses and two breathing techniques.

Two Cases - Two Different Results

Two very different results were reached in recent court cases filed by Choudhury.  In the Central District of California (Western District), Choudhury sued the studio Yoga To The People claiming copyright infringement of the sequence.  The suit, after discovery and mediation, settled in November 2012 with the defendant agreeing not to offer "hot yoga" at his studio.  Perhaps the defendant should have stuck it out with the case a bit longer as a different result was reached in a very similar case.

Choudhury sued Evolation Yoga, LLC also alleging copyright infringement of the Bikram sequence.  In a motion for summary judgment ruling, The Central District of California held:

There are two reasons why the Sequence is not copyrighted: 1) Choudhury’s copyrights cover his literary and audiovisual works—but only his expression of the facts and ideas contained within, and not the facts and ideas themselves; and 2) even though Choudhury’s works describe the Sequence (and teach one how to do it), a compilation of exercises or yoga poses itself does not fall into any of the copyrightable categories under 17 U.S.C. § 102(a) and is not copyrightable under § 102(b) because it is a system or procedure.

The Evolation Yoga case (Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 2012 WL 6548505 (C.D. Cal. Dec. 14, 2012))  continues with other issues not resolved by the Motion for Summary Judgment ruling.

Read more here and here.

Image CC by 2.0 Tony and Debbie

Mediating the Band Partnership Dispute

Image CC2.0  Martin Fisch 

Image CC2.0 Martin Fisch 

Scenario:  Band members are "in love" and all is rocking along.  Money is starting to be made and then it happens --- the honeymoon is over and a band member leaves voluntarily or is forced out.   A lawsuit is filed and it starts to get ugly. Even a written Band Partnership Agreement or LLC Membership Agreement may not be sufficient to resolve the dispute between the parties.  A third-party neutral, i.e., mediator, might be necessary to hear all sides of the dispute and help guide the band members to a workable solution.

Common battle grounds include:

Who gets to use the band name? Who owns the master recording copyrights? Who owns the song copyrights? Who owns the physical product or merchandise? Can the band keep using the leaving band member's name and likeness?

Here are some on-going band disputes where mediation, also known as alternative dispute resolution, could be used as a vehicle to resolve the dispute by the parties rather than by a judge or jury:

Boston v. Tom Sholz (former Boston guitar player) LIVE - mediation occurred on November 1, 2012 Ariel Pink's Haunted Graffiti J Geils Band En Vogue - lawsuit settled via arbitration Chris Daughtry sued by Absent Element

To learn more about Music Attorney Tamera Bennett's mediation practice click here.


By Tamera H. Bennett BLAWG REVIEW #212

"You Don't Have To Call Me Darlin,' Darlin'"

When I teach music publishing classes or seminars I always give an example to explain the difference between an idea and the expression of an idea. The expression of the idea fixed into a tangible medium is what is protected by copyright law.

My favorite example is to tell the class they each need to write a song that includes these ideas: trains, rain, momma, jail and pickup trucks.  (Yes, lyrics still count).  In the end they may all come up with something completely different and each original work would be protected by copyright law. Even if those same ideas are found in another song … the perfect Country & Western song.

Songwriter Steve Goodman penned the lyrics that singer David Allan Coe made famous in 1974  and turned the classic country song “You Never Even Call Me By My Name” a/k/a “You Don’t Have To Call Me Darlin,’ Darlin’” click to watch the video into a country cult classic. (Country cult is not an oxymoron, is it?)

Verse One Well it was all That I could do to keep from cryin' Sometimes it seemed so useless to remain But you don't have to call me darlin', darlin' You never even call me by my name

Sometimes it seemed so useless to remain…  We don’t know for sure if he and “darlin” are married, but in Texas it could have been a common law marriage.  Watch out during those divorce proceedings for taped phone calls and emails showing up in discovery says the New Jersey Law Blog.  The Alabama Family Law Blog makes it clear it takes two to tango but only one spouse to get a divorce.

You never even call me by my name… As a trademark/branding lawyer one of my clients' biggest concerns is being called by the right name and making sure no competitor is using the same or similar name.   Check with the Los Angeles Trademark Attorney Blog to see if it is the  "The Girl From Ipanema" wearing that IPANEMA tagged swimsuit.  Over at the TTABLOG we can voice our thoughts on Lamb's vs Lam for rum.  Las Vegas Trademark Attorney Ryan Giles asks will the real Andre Agassi and Stephi Graf stand up now that their cybersquatters are down? Mr. President, please do not be confused by those pending OBAMA trademark applications in the EU as reported by the IPKAT.  And Google, what are you doing now with those crazy adwords?  Read the update from IP lawyer Ron Coleman on the Texas class action against Google.  This week is the Annual International Trademark Association Convention in Seattle so I am giving a special shout out to Seattle Trademark Attorney Michael Atkins comparing the Space Needle to the Rock 'n Roll Hall of Fame.

Verse Two You don't have to call me Waylon Jennings And you don't have to call me Charley Pride And you don't have to call me Merle Haggard, anymore Even though you're on my fightin' side

CHORUS: And I'll hang around as long as you will let me And I never minded standin' in the rain But you don't have to call me darlin', darlin' You never even call me by my name

Just make sure she really wants you hanging around because GPS can now be attached to stalkers.

Verse Three Well I've heard my name A few times in your phone book (Hello, Hello) And I've seen it on signs where I've played But the only time I know I'll hear David Allan Coe Is when Jesus has his final Judgment Day


Watch out for those signs, too.  Like Woody Allen, sometimes your picture might be associated with something you oppose.

RECITATION: Well, a friend of mine named Steve Goodman wrote that song And he told me it was the perfect Country & Western song I wrote him back a letter and I told him it was not the perfect Country & Western song because he hadn't said anything at all about Mama, Or trains, Or trucks, Or prison, Or gettin' drunk. Well he sat down and wrote another verse to the song And he sent it to me, And after reading it, I realized that my friend had written the perfect Country & Western song And I felt obliged to include it on this album The last verse goes like this here:

Well I was drunk the day my Mom got out of prison And I went to pick her up in the rain But before I could get to the station in my pickup truck She got runned over by a damned old train

This additional verse that makes the song the perfect country and western song, also makes it o-so perfect for Blawg Review….

Did he say drunk and prison in the same line? You better see what my Twitter colleagues have to say at the Criminal Defense Blog, the Simple Justice Blog and the Defending People Blog.

Trains, people and trucks rarely make a good combination.  See what the Chicago Injury Lawyer Blog has to say about a recent train accident. Read here about the man charged with DUI in a car/train accident.  Also, no texting while driving the train.

CHORUS: And I'll hang around as long as you will let me And I never minded standin' in the rain No, you don't have to call me darlin', darlin' You never even call me Well I wonder why you don't call me Why don't you ever call me by my name

Until I re-read this post I thought it was the perfect Blawg Review post.  Then I realized it said nothing about...

Fashion and the law Cuban Trade Laws and the impact on music Estate PlanningCopyright InfringementNegotiationsThe TheatreSocial Media in the music businessBranding in the music businessPatents in the music business or Tattoos -- Famous Trademarks as Tattoos, that is

Now I realize I have written the perfect Blawg Review post.

You don't have to call me Darlin,' Darlin' .... just call me lawyer Tamera H. Bennett.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

UPDATED 5/18/09:  American Apparel and Woody Allen settled for $5 Million after this Blawg Review went to press.  Read more here.

Legalish Topic "Follows" On Twitter


by Tamera H. BennettPosted December 12, 2008

This is part two of a post started earlier on how I gather legal/news information. Part one is here regarding the blogs I have on RSS feed.

I am right at the 60 day mark of using Twitter. What a crazy, fun, informative community. Twitter is an amazing resource for staying current on breaking news issues that relate to your practice. Many bloggers will feed there blogs directly to their Twitter posts. Other Twitter users do not maintain blogs, but aggregate news stories and post those on Twitter.

There is no way to list all the folks I follow and learn from each day, but here are a few of my tweeps:  This is from law Professor Michael Scott. He provides a roundup of daily copyright news. All things arts, tech, digital and IP related.  Updates on tax issues from a Texas tax attorney  A fashion and lifestyle blog for overachieving chicks. Hey, got a have a little fun in my day.  Great info on building a solo law practice. Attorney Victoria Pynchon is a must follow for ADR topics. She feeds two of her blogs into this link.  If you are building or supporting a law practice today, you need to be following Kevin O’Keefe. Kevin founded LexBlog and has incredible insight into how to use today’s technology to grow your business.  Great resource for launching and building your music business brand.  I'm not a patent attorney, but if you are you need to be following Dennis Crouch.  Grant Griffiths provides insight on designing blogs and use of other social media to build your brand.   Always a fun twist on government, technology and legal issues.

Again, this is not an exhaustive list. Enjoy and learn something new today.

Oh, and you can follow me on Twitter Here.

"A" Is for Ask

by Tamera H. BennettMarch 10, 2008


I am starting a post on asking permission with the following statement: The IP ADR Blog has a great idea in which they are working through the alphabet for post topics. Do I need permission from them to use this same idea? I think not. Ideas may be protected by patent law and may also be protected under certain contract theories. Using the alphabet to organize a topic is not original to the blog in question; just read a children's book. So this idea is not protectable, but the expression may very well be protected. What if I copied the blog post written by someone else, would I need permission then?

I may not have asked permission for the A, B, C's, but I did ask permission to copy the blog post in its entirety below. Why? The blog post itself is protected by copyright. The post is in reference to "ways to avoid a claim of copyright infringement."

The Easiest Way to Get What You Want: Say Please Posted on February 28, 2008 by Victoria Pynchon

Recently I re-posted Five Ways to Minimize Risk of Copyright Liability from Citizen Media here.

Today, IP attorney extraordinaire Tamera Bennett (left) dropped by to remind us of our own ADR "core values," i.e., self-determination and respect for the rights of others.

Instead of simply approving Tamera's comment, I decided to bring it up here for everyone to see.

The easiest way to get along with our fellow artists?

Get a license!

If you have genuine affection for the work of another, drop them a line, pick up a phone, send a carrier pigeon.

"I really love your work."

Then ask for permission to use it.

Just do what your mother taught you. Ask nicely. Say please. Then thank the nice copyright owner for being so generous with his/her work. You'd be amazed at people's generosity, especially when you couple it with a (true) statement such as "I'm a young artist and don't have a lot of money but would really like to . . . . . "

If you can't say that, i.e., if you have the money to pay the license fee, for heaven's sake support your fellow artists.

Tamera's comment below. See her blog, Current Trends in Copyright, Trademark and Entertainment Law here.

I have several concerns with the listing of ways to avoid copyright infringement.

1. "Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message" ---- Clients come to me and want to know how much of the song can I use or can I reprint a portion of this chapter of the book, or can I use this poster in something else. I advise the client to get a license. Fair Use is a defense which is very difficult to win. There is no cut-and-dry rule that you can use three bars from the song before liability attaches.

2. Add something new or beneficial (don't just copy it -- improve it!) --- This trips folks up all the time. Adding something new does not protect you from copyright infringement. You need a license to create a derivative work. Adding something new to someone else's copyright is a violation of the copyright owner's exclusive right to allow for the creation of derivative works.

Remember, if you did not create it, you probably need a license to use it.

Somebody Pays When Case Not Dismissed

by Tamera H. BennettJune 20, 2007

Attorney Michael Young with the IP ADR blog gives us a great look at why it is important for parties in copyright infringement cases submitted to binding arbitration to agree how fees and costs will be allocated for post-arbitration proceedings.

In Brayton Purcell LLP v. Recordon & Recordon, --- F.Supp.2d ---, 2007 WL 1462365 (N.D. Cal., May 18, 2007) (currently available only on Westlaw), the parties submitted to binding arbitration, but did not dismiss the pending suit or make an agreement prior to arbitration or during arbitration as to the allocation of post-arbitration fees and costs. Because the case was not dismissed, the prevailing party in arbitration asked for and was awarded post-arbitration costs and expenses pursuant to 15 U.S.C. sec. 505.


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