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.
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