Do You Hear What I Hear?

March 2nd, 2015

Have you ever wondered about how to register a sound as a trademark? Check out this webinar that I am moderating this Thursday that will address this very topic. It should be a fun program, full of examples of sounds that you may not have realized are registered as trademarks. Find out more information here: http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=180150294.

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Resolve to Be Smart About Trademarks in 2015

January 9th, 2015

Happy new year! We’re already 9 days into 2015, and from an IP and entertainment law standpoint, it looks like this year will be another one jam packed with interesting legal and business issues. I definitely think that these issues will include those related to trademarks. As such, I wanted to take this opportunity to talk about trademarks and where they should fall in your business strategy. Too often, I hear brand owners talk about the stress and expense of receiving a cease and desist letter from a trademark owner, as well as the threat of a lawsuit. It pains me to hear these stories, for while there is no 100% guarantee against a trademark infringement lawsuit, there are a number of simple steps that business owners can take to greatly reduce the likelihood of a claim. Ideally, you would hire an attorney to help incorporate the business, as well as check on the availability of the intended business name. Too often, business owners don’t take this second step, and this is where you can run into trouble.

Just look at this past season of Silicon Valley, and the trials and tribulations of the Pied Piper app startup. Spoiler alert if you haven’t seen the show yet: the founder, Richard, runs into trademark trouble, and ends up paying for the right to use the name for his software startup from a irrigation company. It’s important to note that the two uses of the name could have coexisted, as the companies are in two different classes of goods and services, but that’s a post for another day. The larger point is that a simple Google search for the proposed company name, as well as perhaps a search of the USPTO trademark database, would likely have produced results showing the potentially conflicting name, and allowed the founder to plan accordingly.

Have you ever wondered why bands change their names after signing with a major record label, or why so many technology companies have weird names? It’s usually a matter of trademark law, or that the domain for that name isn’t available. However, if you’re proactive in planning your business, you can greatly reduce your chances of getting into trademark trouble. Your best bet is to consult an attorney who practices trademark law. He or she will likely recommend doing a more extensive search, which would include not only searching the internet and USPTO database, but also trademark registrations in individual states. Once the attorney receives the results, he or she can provide you with an opinion as to whether you should or should not pursue registering the company name or logo for federal trademark registration with the USPTO. I know that people are always trying to save money when starting a business, but with business names and trademarks, it’s definitely a situation where an ounce of prevention is worth a pound of cure. Litigation can cost a lot more than the legal fees for an attorney to help you determine if the name is available, so save yourself the headache and budget for it as part of your business plan. So if you’re starting a business this year, resolve to be proactive and make sure that the business or product name that you plan to use is available.

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Top 10 Tech Legal Issues for 2015- Part 2

December 31st, 2014

We’ve looked into the future, and at the first 5 legal issues in technology and entertainment law that we think will be big in 2015.  Now it’s time to round out the rest of the top 10 just in time to ring in the new year.

   6.Copyright

If the numerous Congressional hearings about copyright reform are any indication, copyright will loom large in 2015.  As we all are well aware, the current copyright law doesn’t always provide clear solutions in today’s fast-moving technological environment, and this uncertainty has led to calls for reform.  It will be interesting to see whether these changes come in the new year, and what the new reforms may bring.  If you want to get an idea, check out the recently released update to the Copyright Compendium over at the Copyright Office’s website over at www.copyright.gov.

   7.Online payments

Online payments have been a hot topic in 2014, particularly with the introduction of ApplePay as a feature on the iPhone 6.  From Google Wallet to ApplePay to changes in credit card technology, payment technologies look to continue to develop , as well as make the news in 2015.  There is a lot of potential for the growth of sales on smart phones, but the numerous hacking incidents this year illuminate the very real risk of identity theft if these technologies were to be hacked.  Regulators will also be watching the development of these technologies, and likely looking to introduce laws to help try to protect consumers using these devices, but as with many new technologies, the onus will initially be on the operators of these technologies to keep consumer information safe.

   8.Online threats

From Gamergate to the case that came before the Supreme Court this term that had Chief Justice John Roberts quoting Eminem lyrics, 2014 featured a lot of discussion of whether the First Amendment protects threats posted by people against others online.  While trolls seem to be as inherent to the internet as baseball and apple pie are to Americana, the serious and frightening threats that some Gamergate targets received (and ultimately caused them to leave their homes for fear of attack) are raising questions as to whether there should be repercussions for posting such threats.  The Supreme Court’s decision in 2015 should certainly shed light on the issue, but in this writer’s estimation will hardly be the last word on the matter.

   9. Hacking

It almost goes without saying that hacking will keep its lofty perch as one of the top issues in technology and entertainment law in 2015.  As the fallout from the Sony Pictures hack continues, and big companies like Target and Home Depot work to recover from their data breaches earlier in the year, companies and consumers alike will continue to be concerned about the security of their data, and looking for solutions to protect themselves from hackers.

    10. Royalties for Online Music

Taylor Swift made big headlines in 2014 for pulling her music off of the online music service Spotify in favor of selling it at Target, and through other online music outlets.  This move highlighted the very real tension between artists and streaming music services over the matter of how much artists are paid for having their music played, which can in some instances be far less than one would imagine millions of plays would generate.  In addition, as several lawsuits are pending over similar issues being litigated by the performing rights organizations, as well as satellite radio stations, it appears that we will see even more developments related to how much artists are paid for having their music played online in the new year. 

So that’s our list for hot issues in technology and entertainment law in 2015.  Now it’s time to wind down the new year here in the U.S.  Wishing you a safe and happy new year.  Cheers!

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Top 10 Tech Legal Trends to Watch for 2015- Part 1

December 30th, 2014

2014 is rapidly drawing to a close, and it’s time to look to what the new year will likely hold in terms of trends in technology and entertainment law. Here’s the first installment of issues that I think will be trending in these areas of law, or in some cases will continue to be trends in 2015:

1. Privacy.

From the data breaches at Target, Home Depot and other major retailers this year to the current Sony Pictures hacking scandal, data privacy will continue to be a big issue for companies and consumers in 2015. Look for lawmakers to try to find solutions in both federal and state law, and for consumers to continue to find better ways to protect their data.

2. gTLDs.

Speaking of hacking, it was revealed this week that the Internet Company for Assigned Names and Numbers itself had been a victim to the efforts of hackers. As you may have seen this year, a major issue for brand owners was the roll out of the new generic top level domain (gTLD) program. While recent years have involved a lot of crystal ball gazing to see what the future might hold as these new domains are introduced, this year actually saw many of them being introduced. In addition, the disputes over domains that were in contention by more than one party have largely been resolved through auctions, so there will be more new gTLDs than ever being introduced. Though it will be interesting to see how the .press and other domains are used by businesses and brand owners, I think I’m most anxious to see what results from the introduction of my favorite new gTLD, which is .sucks. .enjoy!

3. Projects using real life people

Among the many issues related to the ongoing international crisis that is the Sony Pictures hacking situation is that of the potential consequences of using the identities or personas of real people in fictional works. Right of publicity issues have taken on greater importance in recent years, and 2014 was certainly no exception, with the ramifications of former UCLA basketball player Ed O’Bannon’s antitrust lawsuit against the NCAA for its use of not only his likeness in television broadcasts and video games, but those of potentially thousands of other NCAA athletes looming large on the future of the organization. While these works can be defended on the grounds of parody or fair use, it’s important to keep in mind that if you are at a point where you are discussing these defenses, it likely means you are trying to ward off a lawsuit, or have already been threatened with one. While these situations are typically fact and personality specific as to the potential consequences, it is definitely advised that creators seek the advice of counsel before pursuing the use of the names, likenesses, voices or other identifying characteristics of real life people in commercial projects.

4. CalOPPA

Speaking of real life people, like many states, California regulators have been increasingly concerned about the privacy of its residents online. California implemented the law known as the California Online Privacy Protection Act, or CalOPPA in 2003, and has been making headlines in its efforts to enforce the law, which among other things requires app and website operators to conspicuously post privacy policies on apps and websites. While I understand that design is an important aspect of the work that app and web designers do, I would recommend that designers start finding ways to make the conspicuous of privacy policies and terms of service part of the design plan as a way to keep themselves and their clients in compliance with CalOPPPA and other regulations. In addition, the recent amendments to CalOPPA that are going into effect on January 1, 2015, call for website operators to implement a ‘delete button’ feature that will require them to implement mechanisms that would allow minors to request that their information be deleted from the site, as well as provide minors with notice of this ability to delete online content and instructions on how to do so. Yet another amendment prohibits operators from marketing certain categories of products or services to minors online. Amendments like these highlight the importance of treating a website’s privacy policy and terms of service as living documents that must be tended to and updated as laws change.

5. Kids’ privacy

And to round out the top 5, we’re back to privacy. While it may seem like splitting hairs to some, to parents and regulators, the privacy of children in the internet is a whole separate area of concern. In addition to the changes coming as part of CalOPPA, it is likely that the Federal Trade Commission (FTC) will continue to monitor apps and websites for COPPA compliance, as well as amend the law to better protect children online. It is also likely that companies like Facebook will continue to lobby for the loosening of COPPA and similar regulations in favor of letting companies develop their own mechanisms for protecting children online. Recent FTC settlements with TinyCo and Yelp over COPPA violations illuminated areas of concern for the agency, which primarily focused on the collection and handling of data gathered by apps targeted at children. In the case of Yelp, the FTC noted that while the site had the proper COPPA mechanisms in place on its full website, it was the lack of such a mechanism on the site’s mobile app that brought the attention of the agency.

What other issues do you think will be big in 2015? We’ll be listing the rest of the top 10 tomorrow, and as always welcome your insights.

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Happy Tax Day

April 15th, 2014

Wow, 2014 is flying by so far. Can’t believe it’s already tax day. It’s been a busy spring for me so far, this month has taken me to Arlington, Virginia for the American Bar Association Section of Intellectual Property Law Annual Meeting, as well as to Fort Lauderdale for the Nova Southeastern Law Sports and Entertainment Law Society Annual Symposium.  Both events included interesting content on current issues in intellectual property, entertainment and sports law.  I particularly enjoyed taking part in the panel at the Symposium on IP and right of publicity issues in video games, and the impact of the recent decisions in the O’Bannon, Keller and Hart cases on the NCAA and its players. 

 In addition to it being the time of year to get your taxes in if you haven’t already, it’s also an important time of year in most states for corporations.  As you may know, one of the major benefits of incorporating your business as a corporation or similar business entity is that it provides a means of protection for the company’s owners from potential personal liability for the actions of the corporation.  Part of keeping this protection involves not only registering with the state, but also maintaining it by filing the company’s annual report with the Secretary of State for that particular state.  The annual report is important because if it is not filed in a timely fashion, the company will be what is called administratively dissolved.  This means that if you don’t file the annual report, you could lose the protection from personal liability from corporation actions during the time the company is out of compliance.  Here in Florida, the deadline is May 1st to file an annual report with the Department of State.  I encourage you to familiarize yourself with the deadline in your state if you have a business, and make sure that your paperwork is filed by the respective deadline for that state, or consult with an attorney in your area to help you do so.  

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When Should I Consider Trademarks?

March 11th, 2014

I spoke this past weekend at Florida DrupalCamp on intellectual property law and compliance issues for web developers. It was a great session, with lots of interesting questions from those in attendance, and I hope to incorporate many of them into future posts. I think a good place to start is a question that I am asked a lot by aspiring entrepreneurs, which is “when should I consider registering for a trademark in the startup process?” My answer to this is that it should be considered as early on in the process as possible. Of the many steps that it can take to start and grow a business, sometimes the process of considering whether a company or product name is capable of being registered for a trademark, as well as registering such a name, can tend to end up on the back burner. This can be a costly tactical error for a small business, as proceeding without the use of a company or product name without an idea of whether it could potentially generate a trademark infringement claim can not only result in litigation from another trademark owner, but also mean that the company or product may have to change its name and lose any accumulated recognition in the minds of consumers.

While of course I always advise that entrepreneurs consult with an attorney to help them navigate the trademark search and registration process, there are also simple steps that people can take to get an idea of whether a name is available for use for a company or product. One way is to perform an internet search for that name and the related industry in which it would be used to see if there are any results that could potentially overlap with what you have in mind. The related industry is important, as trademark registrations with the United States Patent and Trademark Office (USPTO) are issued by the class of goods or services for which the mark will be used. This is why you will see in some instances the same name being used for different classes of goods or services, such as Delta Airlines and Delta Faucets. Now an internet search may not give you all the information you would need about whether a name is available for use, or is already registered as a trademark. This is why it is also a good idea to run a search of the trademark registrations with the USPTO on its website to see if there are any names or logos that could conflict with the name you are looking to use in the search results. Of course, the next logical question that may come to mind is if I can do these searches myself, why would I need to hire an attorney? It’s a good question, and the answer is that an attorney with knowledge of trademark law can assist you in performing a fuller search of whether a name or logo is capable of being registered with the USPTO. Why does this matter? As trademarks are not only a matter of federal law, but also state law, there can be registrations or uses of the name in question that may not show up in an internet search or search of the federal database that may show up in a fuller knock out search. Such a search would also include domain name registrations, and if you have ever wondered why some tech companies have such strange names, it is often a result of trying to find an available domain name. Further, an attorney can advise you as to the potential risk that similar or matching results may present, and help a company choose another name if the risk is too great.

No matter which route you opt to take in terms of trying to determine if a name is available for use, and ultimately for registration as a trademark, the point is that these discussions need to take place early on in the startup process. Think about it- if you’re going to spend your time, energy, and money on developing a new product or company, don’t you want to do so wisely? Litigation is expensive and time consuming, so if doing some basic searches can help you head off potential problems, that is time (and money) well spent.

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Bloggers and Dinosaurs and Punk Rock, Oh My!

September 16th, 2012

I really enjoyed attending Central Florida BlogCon yesterday, big thanks to the planning team for all their hard work organizing and running the conference.  There was a lot of great learning and sharing going on during the sessions that addressed different topics related to blogging and social media.  The conference got off to quite a start with a flash mob, then a great keynote by Lou Mongello on how to quit your job and blog full time.  I think everyone got a kick out of seeing his slides projected on the huge Cinedome screen. 

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After the keynote, I checked out a session on monetizing your blog through online advertising, which provided a thorough explanation of the different options for online advertising on your blog and guidance as to typical rates that advertising networks may offer.  I then took some time to prepare for my talk and relax in the Ford recharge lounge, which featured strawberry cookies from Parkesdale Market, Nawgan energy drinks, and free massages from Motherlove Massages.  My talk on IP issues that bloggers need to be aware of went well, there were lots of great questions from the audience.  Then it was time for lunch courtesy of Bahama Breeze, who not only provided quite a lunch spread, but also a steel drum band to entertain attendees during lunch.  The afternoon kicked off with a yoga session before the slate of afternoon sessions.  I checked out Mark Krupinski’s talk on how to best monitor and use social media analytics, which was full of good tips, then Joshua Johnson’s session on blogging for business.  He stressed the importance of using an editorial calendar to help keep you plan posts and stay on track with your blog.  Then it was time for Mark Baratelli of the Daily City’s hilarious talk about how to find and share content to build a passionate following.  He pulled no punches as he shared his experiences in building the following for his blog, and his thoughts about topics like niche blogs.  He’s clearly not a fan, as he said that he doesn’t think you should focus on a niche, and that “niche= no no, then you’re stuck with a scarf blog and what happens if you tire of scarves, moron.”  It was definitely some good food for thought on how to approach building your following and the different paths that bloggers can take.  Then it was time for the session on storytelling and creating infectious blog posts presented by Justice Mitchell, which was really interesting.   Then it was time for the breakout sessions where bloggers met with other bloggers with a similar focus to discuss their experiences and challenges blogging in that area.  I met with the business blogging group, and we had an interesting discussion to end the day. 

After a long day of sharing and learning, everyone was glad to check out the Yelp after party, which was held in the dinosaur area of the Science Center.  It was cool to mingle with the other attendees among the dinos, and enjoy the drinks and great food, like the vegetarian gumbo provided by Qdoba, pitas and hummus from Crave, and sushi.   Big thanks to the planning team, can’t wait to see what they come up with for BlogCon next year.

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As if it hadn’t been a busy enough day, Strung Out was also playing over at the Social.  I headed over there in time to catch the Swellers’ set, which was energetic and melodic.  Energetic was an understatement for Strung Out, who are probably the only band who could play 2 sets and an encore in under 2 hours.  They stormed through their albums Suburban Teenage Wasteland Blues, and Twisted by Design, to the delight of the crowd.  The Swellers joined Strung Out on stage to play “Justified Black Eye” as a tribute to the late Tony Sly.  It was a great end to a long but fun day.  I highly recommend checking out the conference and the bands if you get a chance.

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Central Florida BlogCon & Social Media Law

August 26th, 2012

As anticipated, 2012 is continuing to be an active and interesting year in entertainment and intellectual property law.  The big news this week has been the verdict in the patent infringement lawsuit between Apple and Samsung over the alleged infringement of mobile phone patents, which awarded Apple more than $1 billion in damages.   As these companies also have a number of lawsuits pending in other countries, this will likely hardly be the end of this patent battle. 

 

There was also news this week on the social media front, as a Occupy Wall Street protestor Malcolm Harris filed a motion challenging the judge’s previous ruling allowing prosecutors to subpoena his tweets.  Harris was arrested in October, and his case is among several similar cases for which prosecutors are seeking social media posts as part of prosecuting the case.  This case has brought some interesting issues to light, such as the question of who owns a user’s tweets, as well as the issue of whether one has any expectation of privacy in regard to his or her social media posts.  The judge has previously ruled on attempts to quash the subpoena by both Harris and Twitter.  In the case of Twitter, the company’s attorneys had argued that the subpoena violated Harris’ freedom of speech and right to privacy.   The judge rejected this argument, ruling that the posts were made publicly, and with no expectation of privacy.  Twitter is appealing this ruling, so it will be interesting to see how that action turns out.  Harris’ filing also asks that the judge recognize his standing to challenge the subpoena on first amendment grounds, as well as on the ground that it violates fourth amendment protections against warrantless searches.  This is definitely a social media case to keep an eye on, as the interplay between social media and the law will likely produce some interesting legal rulings.

 

Speaking of social media, I also wanted to mention an upcoming event at which I will be speaking, the Central Florida Bloggers’ Conference.  CFL BlogCon is being held Saturday, September 15th at the Orlando Science Center.  My presentation is titled “Copyrights, Trademarks and Social Media, Oh My!,”  and will explore the legal issues that bloggers may run into, and how to avoid legal problems when blogging and using social media.  It’s coming up soon, and seats are filling up quickly, so if you’re interested in attending, register and start planning your schedule over at the Central Florida BlogCon website

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Hot Topics in Entertainment Law for 2012- Part I

May 25th, 2012

So 2012 seems like it will be another interesting year in entertainment and intellectual property law.   I discussed my predictions for the year in terms of hot topics in social media and the law over at the Social Media Club Clubhouse, and will be posting a midyear update soon, so I thought I would discuss some hot topics I’ve noticed in entertainment law over here. 

A big topic to keep an eye on is termination of copyright grants.  You may have read about the recent court decision in favor of Village People singer Victor Willis allowing him to terminate his portion of the grant of copyright rights to Scorpio Music and Can’t Stop Productions, the companies who administer the music publishing for the group’s songs.  You will likely be seeing more litigation in this area, as 2013 will be the first year in which songwriters and recording artists who made grants of their copyrights to publishers or record labels can terminate those grants under the copyright law.  In 1978, an extension of the copyright act went into effect that granted artists the right to terminate their copyright grants 35 years after that grant under section 203.  There are some strict requirements to send a termination notice, and the notice must be sent not less than two years before the termination date, and not more than 10 years before that date.

Think of the artists who would have been making these copyright grants 35 years ago…some big names come to mind: the Eagles, Bob Dylan, the Village People, Tom Petty, the list goes on and on.  Losing the right to license these songs or recordings could be a big blow to a record label or music publisher, which is why you will likely see a lot of litigation next year trying to prevent these terminations from going through.  Another wrinkle that arises when you are talking about termination is whether sound recordings fall within the termination provisions of the copyright law.  This has its roots in the provisions in most record contracts that states that any recordings created during the term of that contract are works made for hire that would be owned by the record label, and the fact that sound recordings are not one of the categories of works that can be works made for hire.  If the recordings were found to be works made for hire, under the copyright law they would be seen as having been authored by the record company, and giving the termination right to the label rather than to the artist. 

I think that’s a good place to start, enjoy the food for thought.  Up next, I’ll discuss recent developments in right of publicity cases, especially in music video games.  

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New Books, Stage Collapses and Milestones, Oh My!

September 17th, 2011

Howdy folks, sorry to have fallen off the blogging wagon for a while there.  The last few months have been pretty hectic with a move to an in-house position with a technology company in Orlando and all the fun that comes with moving and getting settled.  But things are settling down, and I’m hoping to get back to posting on a more regular basis.

To start, I am proud to announce the publication of a book that I contributed a chapter to, The American Bar Association’s Legal Guide to Video Game Development.The American Bar Association's Legal Guide to Video Game Development

I contributed chapter 2, which is about business and finance issues to consider when starting a video game company.  I am really excited that it is out, and want to thank my colleague Ross Dannenberg, who edited the book, for the opportunity to take part in the project.  Ross also is one of the principal authors of the blog Patent Arcade, which covers video game IP law, I encourage you to check it out.

Also, in the midst of all that has been going on, I missed celebrating the two year birthaversary of my firm, can’t believe how fast the time has gone.  I’m looking forward to another year of working with creative and interesting clients.

Next, in light of all the scary stage collapse stories in the news in recent months, I wanted to take some time to talk about stage riders.  @catherinereach had inquired about them in response to a tweet I had posted about the unfortunate stage collapse and resulting deaths at the Pukkelpop festival earlier this month, and whether safety requirements are typically part of the contracts bands sign.  The answer is typically yes, though it depends on the level of festival or event involved, as well as the sophistication of the parties.  As you can see in Metallica’s rider for their 2004 tour, there is a provision on page 9 giving the band the right to cancel their performance in the event that they feel the band or fans would be subject to bodily injury.  It also calls for the party booking the band to provide general liability insurance, and abide by applicable health and safety regulations.   Now a bigger band like Metallica will have a crew traveling with them to handle matters like the rigging of lights and sound, which provides them with some means of protecting against disaster, but as Warped Tour creator Kevin Lyman noted in a recent interview with Alternative Press, there is nothing you can do to completely safeguard a festival.  It’s an interesting read, as is this article published by The Hollywood Reporter on the recent festival disasters.  It provides an interesting perspective on the infamous Van Halen rider request that no brown M&Ms be placed in their dressing room.  This request was included, as many rider requests are, to ensure that the promoter had read the contract and complied with its requirements, including following the safety requirements for setting up the stage.  The best bet for a band is to ensure that stage safety requirements are set out in its rider, and that the contract calls for the promoter to have adequate insurance in the event of an accident.  But even with a contract in place, don’t forget to trust your instincts as well.  It has been reported that a last minute decision by Sugarland’s tour manager to keep the band from going on stage may have made the difference in preventing the band from being harmed in the Indiana State Fair stage collapse.  So, to sum it up, get your requirements in writing and trust your instincts when it comes to stage safety.

And finally, speaking of festivals, do check out Fest 10 via the ad in the sidebar.  Looks like it will be another amazing 3 days of music invading Gainesville this year.  Check out the free comps and all the other Fest goodness over at their site.

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