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The PunkLawyer Blog Copyright Archives - The PunkLawyer Blog

Archive for the ‘Copyright’ Category

Top 10 Tech Legal Issues for 2015- Part 2

Wednesday, 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!

Bloggers and Dinosaurs and Punk Rock, Oh My!

Sunday, 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.

Hot Topics in Entertainment Law for 2012- Part I

Friday, 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.  

Can You Register the Undead for Copyright Protection?

Friday, November 19th, 2010

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.

So You Want to Be A Rock Band Network Star?

Wednesday, August 25th, 2010

Yesterday I had the opportunity to tour the film department at the University of Central Florida and meet some of the faculty.  I enjoyed seeing some of the new technology the students are using, it’s amazing how small the cameras and sound recording devices are getting.  I didn’t get a chance to get over to their downtown facility, hopefully the next time I’m up there I will get to check out the sound stage and motion capture facility.  After all of the writing and speaking I have been doing about music video games and avatars, I would totally be up for trying out one of those motion capture suits just to see what it’s like.  I know, I’m a nerd, it happens.

Speaking of music video games, this week has brought the release of the set list for Rock Band 3, as well as the announcement of Rock Band Network 2.0.  Harmonix and MTV Games have made some improvements to the Rock Band Network experience, you can read more about the changes here. From the time table released, it looks like new software for submitting tracks to RBN2 will be available starting in October, with song submissions starting early next year and tracks becoming available in the first quarter of 2011.  I know there was quite a bit of excitement about the initial launch of Rock Band Network, I imagine there will be more of the same as the release of Rock Band 3 and the launch of RBN2 get closer, as well as questions as to how to get in on the action.  So if you’re an act interested in getting your tracks on Rock Band Network, what do you need to do?

First of all, you need to check on the status of the copyrights to your track.  A song has two copyrights: one in the underlying composition and one in the sound recording.  In order to submit content to Rock Band Network, you need to either own the rights to both the composition and sound recording, or get permission from the label or publisher who has the rights.  Also, Rock Band Network does not accept covers, or songs with samples, so stay with original tracks.  Keeping tracks clean is a good idea too.

Next, you need to decide if you want to try authoring the tracks yourself or have an authoring company do it for you.  If you’re good with recording technology, it might be simpler to try authoring it yourself.  But be warned, it can be time consuming- the estimated time to author one track for RBN is 40 man hours.  You will need the Reaper and Magma software, as well as an XBox 360, a Gold Level XBox Live Membership, and a Creators Club membership to complete the process.  For more details read up on what’s involved here.  Harmonix is also putting on a series of Rock Band Network authoring training sessions and networking events around the country, check it out here.  If you want to go the authoring company route, shop around.  There are differences in pricing and deals, TuneCore initially was charging $999 to author a song for submission to RBN, though they are now charging $2,500 for authoring a song.  Other companies like RockGamer Studios charge by the minute for authoring.  Also look at if the authoring deal calls for the company to get a percentage of your sales of the track.  Once the track is authored and submitted to Rock Band Network, it must then go through peer review and receive a certain amount of positive feedback before it is made available for purchase.   Once the track is made available for purchase, acts receive 30 percent of the track sales.  The prices range from $1-3, so you can do the math as to how that works depending on the price.  It seems like a great way to get exposure for your music.  If you have tracks up on RBN, how is it going?  What do you think?  I’d be interested to hear from you.

Happy Record Store Day!

Saturday, April 17th, 2010

In honor of this special day, I thought I would post in regard to a panel discussion I recently attended at the American Bar Association Section of Intellectual Property Law Annual Meeting.  It was a great conference with sessions on current issues in copyright, patent, and trademark law, IP issues in social media and advertising, entertainment law and others.  Full disclosure, I’m a Young Lawyer Fellow for the Section, but I cannot say enough about the Section and its wonderful group of professionals.   I really enjoyed the conference, especially the entertainment law panels on intellectual property issues in entertainment transactions, as well as the future of the distribution of entertainment content.  It was in the latter panel that I really got to thinking about the state of the industry in comparison to the past and where it might be going.

One recurring theme was that physical content for entertainment is dead.  I found myself thinking of the recent buzz about the resurgence of vinyl, and recalled being at the Fest last fall seeing people carrying records to swap or sell.  I have a small vinyl collection myself, and in thinking about the number of bands and labels that have been and continue to release music on vinyl, the idea of physical content for music being dead seemed odd.  Certainly the industry has changed, sales are down and a lot of sales are from digital instead of physical format.  But the response I get when I talk to some friends and colleagues about the buzz on vinyl, for which sales were up 33 percent in 2009 while total album sales were down 12.7 percent, the response I get is “oh the sales aren’t that big,” as if it doesn’t matter.   Yes, vinyl accounts for only 1 percent of the overall market, but I think in this day and age if you can get people to buy physical content over digital, it’s kind of a big thing, especially if you consider that 2 out of 3 of those vinyl album sales were actually made in record stores.  I think instead of brushing it aside, the industry could learn from it.  Engaging your fans, putting out quality product and a great live show can go a long way in increasing sales, but I think labels and artists have to change your expectations as to what sales of recorded music will be.

Yes, the sales today pale in comparison to what they were at the peak of record sales (which interestingly I learned from the panel was from 1998-2000, the Napster years), but perhaps expecting those type of sales in the Internet age is unrealistic.  The landscape has changed dramatically, instead of there being only a few outlets for exposure to music (mainstream radio, MTV, etc) and limited options for purchasing music, now there are tons of ways to do both.  A big part of the future will be filtering services to help people sort out the crap out there, and there are going to be growing pains along the way.  I think there will always be people who want to be huge rock stars and pop superstars, and if that’s the route you want to go, you can certainly shoot for it and make certain sacrifices in that effort.  However, I know bands and artists that make a living from touring and making smart uses of their rights in publishing and other business efforts.  It’s not an MTV Cribs living, but I don’t think that’s the goal of every band or artist out there.  I’m not saying I have all the answers, and I’d like to hear what you think.  Hope you have a great Record Store Day and find some great records!