Music & the Law Pt. 2

I have been taking an Entertainment Law class at Full Sail University. It has been interesting to learn about trademarks, copyrights, and the protection of intellectual property. The blog entry will stand to share what has been observed and learned throughout this course. This article is written in hopes that it is of assistance to any reader who is searching for understanding in the entrepreneur and entertainment worlds.

In a recent podcast from Entertainment Law Update, they talk about Subway’s use of the word “footlong”, and how the submarine sandwich company has attempted to gain a legal trademark of the word. Subway is not the first to sell or distribute submarine sandwiches that are approximately twelve inches in length. In a recent court case, an independent Iowa restaurant has filed suit against Subway for sending them a “cease and desist” order for using the word “footlong” to pertain to their sandwiches. The courts have decided that “footlong” is a general term and in fact cannot be trademarked. The podcast agrees that Subway could have a valid claim in registering the trademark “Five Dollar Footlong” (or “$5 Footlong”), but not in the regular word, “footlong”. The podcast also makes a valid point in explaining that when you hear the word “footlong”, you may think of a hot dog instead of a sub sandwich. It is interesting to note that the US Patent and Trademark Office has denied Subway’s application to file the word as a legal trademark against other restaurants.

In the entertainment industry, there will always be someone ready to make “bogus” claims in the fight against copyrights. Subway is not alone n this issue. Suffolk University’s “Intellectual Property Law Podcast Series” brought to my attention a case of the US v. the American Society of Composers, Authors, and Publishers (ASCAP). It talks about ASCAP considering downloading a song as “public performance” and how the United States disagrees. The US District court has decided that by definition of the Copyright Act, “perform” means “to recite, render, play, dance, or act it either directly or though a device or process”. Downloading is merely a means of delivering the song(s), and is in no way a “performance”. So while sites like Yahoo! are not entitled to paying copyright owners or ASCAP a performance fee, the podcast does mention a reproduction fee that is required through the Harry Fox Agency. In a sense, the copyright owner does not have to worry about how they will get paid, but rather who will pay them.

The same podcast from Suffolk University introduced me to a new case taking its place in court soon. The case of Axl Rose v. Activision, and breach of contract is being discussed as will be sent to trial in January 2012. According to Rose, he only agreed to license Guns N’ Roses music (specifically “Welcome to the Jungle”) for Activision’s Guitar Hero III on the basis that the game would not feature the likeness of ex-band member Slash (born Saul Hudson). Anyone who has played the game, seen the cover of the game, or wants to do a general Google search of “Guitar Hero III” will see Slash front and center on the game’s cover image. According to Rose, he was told the image and likeness of Slash is only for promotional use and would not be used in the final game. The podcast goes on to say that Rose is suing Activision for deception and deceiving him. It is interesting to note that according to Hollywood Reporter, Gwen Stefani and her band No Doubt are also filing suit against the video game publisher for misusing licensed rights.

In conclusion, I would have to say that you should know your limits when it comes to trademarks, copyrights, and licensing agreements. As you dive into the world of business and entertainment, make sure you know what you can and/or can’t do when it comes to protecting yourself and your company. If you don’t need to go to court, stay away from it. But should you find yourself in a situation like Axl Rose, get EVERYTHING agreed upon in writing. Cover all you bases to make sure the next court case we review isn’t you. Until next time, Stay Tuned.

Music & the Law

Today, the Stay Tuned blog will focus on some pivotal and recent court cases that have impacted the recording industry. The use of intellectual property in music will always be a sensitive subject with some folks. For how can you really put a copyright on a thought or idea, and say no one else can stumble upon the same idea? The music industry is pregnant with various claims of copyright infringement and people who mistake inspiration for duplication.

The first case to discuss is Fantasy Records, Inc vs John Fogerty. For those don't know John Fogerty was the lead singer and songwriter of Creedence Clearwater Revival (CCR) who was signed to Fantasy. In a nutshell, CCR broke up and the only way for John Fogerty to get out of his contract was for him to turn over all his rights to all the songs he wrote for CCR. Later, in Fogerty's solo career, he released "the Old Man Down the Road", which Fantasy decided sounded exactly like the CCR recording "Run Through the Jungle" but with new words. Of course, Fogerty wrote the song, but Fantasy owned the copyright. This cases teaches a few different things besides its outcome that elaborated the standards that factor into district court's decision to award attorney's fees in copyright litigation.

1. Pay attention to your initial contract and fulfill your obligations
2. Don't put yourself in a position to sell your "soul" (or rights to your music)
3. If you have to give up your rights, keep a percentage. Never give all of your intellectual property away.

The next case is more recent and deals with the music industry trying to deal with illegal downloading. Capitol vs Thomas is said to be the first file-sharing lawsuit that went to be tried before a jury. The case shows that Jammie Thomas-Rasset was found liable for infringing songs by downloading from P2P site Kazaa. The RIAA sent a cease-and-desist letter to Thomas-Rasset and a settlement, but she refused to settle. This led to the court case we have before us. Thomas-Rasset was ordered to pay Capitol and the RIAA $222,000. In a retrial by her request, a jury still found her liable and order her to pay $1,920,000, which was later reduced to $54,000. the RIAA would not except the reduced amount and was granted a third trial. The jury awarded the RIAA $1.5 million against Thomas-Rasset.

From this trial we learn, if you are offered a settlement, take it. But seriously, the RIAA and the music industry attacking consumers isn't exactly the correct way to handle piracy and illegal downloading. While trials such as this one may scare a lot of the downloading industry, where there is entertainment you have to pay for, there will always be a way to get it for free. The entertainment industry as a whole combats this by offering interactive content with DVDs and bonus tracks on music albums. I think as technology evolves there will always be a way to cheat the system. Attacking all people who download is like starting a war on all of terrorism...

The next case is the RIAA vs LimeWire, which seems to mean changes to file sharing within the United States. This seems to be the RIAA's backup plan to attacking the illegal downloading. Why attack the user, when you can attack the user's tools? The RIAA in the past attacked P2P site and softwares like Napster, Morpheus, Grokster, Kazaa, eDonkey, iMesh, WinMX, I2Hub, BearShare, Shareaza, and now LimeWire. The other P2P sites could not stand up to the RIAA, and it seems LimeWire may fall to the same fate.

The P2P industry can argue several different points against the music industry. P2P is not all negative. For many students who want to put music to a powerpoint, home video, or other project, isn't it easier to boot up LimeWire and download that one song you need instead of having to search through multiple paid libraries just to find that the song you need is not licensed by that library; or you have to buy a whole album for one song? yes, there are negative uses for the P2P industry, but there are also beneficial uses, especially for the little person who just needs one song from time to time.

In conclusion, the music industry will always have those looking for a cheap way out or who "infringe". While the Fogerty issue is hard to combat unless you have a good lawyer and some sense of reality at your contract signing, there is a way for RIAA to take care of file-sharing. If you know there is a need or desire for something, create it. If the RIAA created its own file-sharing site/software for a reasonable one-time fee, would you participate in it?

Stay tuned...