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.
Archive for the ‘Entertainment Law’ Category
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.
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.
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.
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.
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.
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!
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:
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.
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.
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.
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.
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.
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.
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.
So 2010 is quickly coming to a close, and I thought I would get one last post in to wrap up the year here at the PunkLawyer blog. There has been quite a bit of hubbub online about the departure of founding members Josh and Zac Farro from the band Paramore, including dueling blog accounts of the circumstances surrounding said departure. To read the posts and view the videos, check out the coverage over at Alternative Press. While I’m not familiar with the actual operation within the band Paramore, I thought that this would be a good time to discuss band partnership or operating agreements.
More bands than you would think have operating agreements in place. These agreements can vary somewhat according to the type of business entity such as a corporation or limited liability company that a band chooses. The decision to create a business entity is important, and something I will cover in a future post. Depending on the particular entity you choose, an operating agreement can be required. This agreement will typically cover who is on the board of directors of the company, when, where and how often they will meet, how they can vote, and otherwise run the company. For a band, such an agreement can also address what rights members have to make purchases beyond a certain dollar amount on behalf of the band, as well as to enter into contracts on its behalf.
A particular area of importance to address in a band partnership or operating agreement is what happens when a member leaves. This is also an important issue for startup companies, where like a band a member can leave and potentially wreak havoc on the company if a procedure for the departure of that person is not in place. Think of the bands you have seen that tour with only one or two of the original members but still use the same name. While in some instances this may be done without the permission of the original members, in others it comes down to who owns the rights to the band name. A famous example is Guns N’ Roses, who have continued to exist in various incarnations with Axl Rose as the only remaining original member. The story goes that when the band was renegotiating its contract with Geffen Records, Axl had language added to the contract stating the he alone would own the name of the band. Once the band members signed that contract, Axl had the legal right to use that name. This would mean he can perform under that name with different members, license it for merchandise, you get the idea.
So how would you want to structure your band agreement to avoid later disputes as to the ownership of the band name, particularly after a band member leaves? You would want to include language that states what a departing member would receive in terms of compensation, and that he or she leaves with no rights to the band name, image and the like. Or your band may have a different view, but generally it is best to spell these type of issues out so that when you’re in the midst of the upheaval that can surround a band member’s exit you know that the issues are clear and in writing. An entertainment attorney can help your band draft such an agreement, as well as assist you in the process of incorporating or forming another type of business entity. Of course, you hope you never have to deal with these issues, but as a lawyer I like to try and plan for the worst but hope for the best. Hope that you all have a happy new year, I look forward to sharing more insights with you in 2011.
Hey there interwebs, sorry for the not posting for a bit. I’ve been keeping busy with clients, writing projects and the punk rock awesomeness of Fest 9. Fest was amazing as always, what a great weekend of music, hangs and just great community. Among my favorite sets were Larry and His Flask poolside at the Holiday Inn on day 1, Dear Landlord dressed as Juggalos, as well as the always entertaining Me First and the Gimme Gimmes. It was great to catch up with old friends and meet new friends. Heard there were some amazing room shows, a secret show by Off With Their Heads, and even a lobby show by Frank Turner, a good time definitely seemed to be had by all. Kudos to Tony and his Fest crew for another great year.
My post today is about copyright. I was working on a column for the Scriptwriters’ Network newsletter on the subject, and used vampires and zombies to illustrate a point and thought I would share it here as well. The copyright law makes distinctions as to what can and cannot receive copyright protection. One such area is what are called scenes a faire, and it refers to those common elements of a theme such as characters, plots, scenes or other elements that are so indispensable to creating a work that to allow them copyright protection would make it nearly impossible to create another work on the subject. You’ve probably noticed that when a particular trend is hot, a lot of movies and TV shows come out featuring that trend. As of late the hot trend was and still somewhat continues to be vampires, though the new hot undead trend seems to be zombies. Think of the common elements in zombie movies and television shows. Your list probably includes people who have been bitten by zombies and are now undead, that also have a desire to eat brains, at night time, and attack humans to acquire said brains. Now imagine trying to make a zombie movie or television show without those elements. Could be pretty hard, right? That’s the idea behind scenes a faire and similar doctrines of copyright law, is that to allow those common elements needed to make a zombie movie to be protected by copyright themselves could prevent new original works from being made using those elements. What copyright does protect is the original expression that results from using those elements to create a work, not the elements themselves. So the original expression that is ‘Evil Dead’ using those elements is protected by copyright law, but the idea of zombies itself would not be.
Just imagine where the show ‘True Blood’ or ‘Twilight’ books and movies would be if undead people who suck blood, have fangs, burn in sunlight (unless you’re a daywalker), sleep in coffins, and the like were all protected individually by copyright such that you would have to license all of them to create a new work using them. It’s definitely interesting to think about. Of course, whether an element is seen as a scene a faire or an infringement by the courts typically depends on whether the element is an expression or an idea. The closer it is to an idea, the less likely it is to found to be protected, while the closer it is to an expression, the more likely it is to be found to be protected. There can be instances, however, where an idea and expression are so closely intertwined that the expression can be found to not be protected under copyright because to protect the expression would prevent others from making original works using the elements that are ideas. So in short, you can’t register the undead for copyright protection. Hope you have a rad weekend.
I spent part of last week at Game Developers Conference Online in Austin. I’ve been trying to fit in one of the GDC conferences for the past few years, so when I lucked out and won a pass in the online scavenger hunt, I jumped at the chance to attend. In addition to punk rock, an area I am really passionate about is the intersection of new technology and the law, and attending certainly fed right into that. Tuesday started off with summits on game narrative, iPod game design, and 3-D stereoscopic gaming. I had noticed that the game narrative summit featured a session on storytelling in the Rock Band games a while back on Twitter, and made a beeline for it Tuesday morning. It was a great session, Design Director Chris Foster and Senior Writer Helen McWilliams from Harmonix discussed how they developed the narrative of the game, and a big theme was that they wanted to keep the game as true to the dream of being in a band we all have. If you didn’t know, a lot of the people at Harmonix either are in bands or were in bands, including Ben Carr of the Mighty Mighty Bosstones. The writers capitalized on this treasure trove of anecdotes, and as research recorded the musings of their coworkers one night at a local watering hole. In addition to designing the game to follow the path a band’s career would take, such as moving on to better transportation and playing bigger venues, the writers also incorporated vignettes that would convey what it would be like to embark on that first trip as a band with a van. They not only highlighted what was included in the game narrative, but also discussed some of the features that were removed, such as characters that would guide you through the game, as well as a global network of venues. Narrative was of particular importance in developing the Beatles: Rock Band title, where Chris mentioned that they took great care to not have any virtual Beatles interacting or appearing too close to live footage from their careers. It was also clear that the writers also took great care to respect the history of the band while creating a game that was fun to play. Having written and spoken about licensing issues in music video games, it was really cool to get a look behind the scenes at the creative aspects of developing them.
Another panel I was excited to attend was the program on legal issues associated with selling virtual goods. If you didn’t know, I co-edited a book that was released this year on intellectual property issues in computer gaming and virtual worlds that was published earlier this year by the American Bar Association. Side note, another benefit of the conference was meeting people who responded to that sentence with “that’s awesome” instead of a glazed over look. I also made a guy’s evening at the kickoff party by saying I liked his “Misfits/Danzig-y’ look. Hey he did have that look going on. Getting back to legal matters, Greg Boyd gave a great presentation on the veritable minefield of issues that can arise from selling virtual goods in games, from potentially violating state lottery and sweepstakes laws to SEC and banking regulations. And that’s in addition to the additional layer of regulations game developers are subject to if their game is targeted at children. Having recently spoken about some of these issues as part of a presentation on keeping kids safe in virtual worlds for Social Media Club Southwest Florida, I was certainly interested in hearing the presentation. There were a lot of interesting questions from the audience, which I think there will continue to be as the virtual goods and social gaming areas grow. Look for more posts on issues with virtual goods and other techie issues to come. What a week, after GDC Online I was off to an entertainment law meeting, definitely left me feeling like some of my touring musician friends with all this travel. Or George Clooney in ‘Up in the Air’. Austin was a blast, I was definitely tempted to stay for the Austin City Limits Festival to see Muse and some of the other great bands on the lineup.