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The PunkLawyer Blog Intellectual Property Archives - Page 2 of 2 - The PunkLawyer Blog

Archive for the ‘Intellectual Property’ Category

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.

Hey That’s My Band Name!

Wednesday, September 15th, 2010

This post comes at the request of Brian over at Punk on Deck, a fun blog about punk rock and baseball.  Do check it out, particularly if you’re a Cardinals fan.  Brian suggested a post about claiming band names, and who has priority if there is a claim by another band that you’re using their name.  Great suggestion, you’ve probably read about this happening to bands and wondered why this happens.  It’s happened to bands like Blink 182 and The Academy Is….  To start, this is an issue of trademark law.  I’ve heard people talk about bands having to change their names because of copyright law, and that’s not the case.  I want you to know what you’re talking about, in part because I want to educate you, and in part because it’s a pet peeve of mine.  Generally, a trademark refers to marks protected in association with goods, and service marks refer to those marks for services.  Trademark law protects word marks, logos, some slogans, even certain scents and colors.

Trademark protection exists on 3 levels: common law, state, and federal protection.  The strongest level is federal registration with the United States Patent and Trademark Office, which gives the trademark owner the right to enforce that mark in every state in the U.S.  To register for federal trademark protection, you have to register for each class of goods or services you will be using the mark.  So for example, for a band, you could register for “providing live musical services,” “clothing, including t-shirts, baseball caps, and sweatshirts,”  and “recorded music on CDs, records” you get the idea.  Federal registration can get expensive as you get into multiple classes of goods and services.  State registration protects, as you would imagine, only in the state or states in which you register.  The benefit of state trademark registration is that it gives you proof to use in court that you have been using the mark since a certain time. However, with the Internet, I’m not sure how well state trademark protection will protect a band name, since the Internet can be accessed worldwide.  You can still enforce a trademark like a band name without registering it for either federal or state protection under the common law, the challenge that often arises is proving the date of first use in commerce.

Why does first use in commerce matter?  Well let’s take a band, perhaps they’re like your band.  After hours of debating potential names, perhaps fighting with your bandmates in the process, agonizing over the perfect name, you settled on what you think is a great name.  So you start touring, selling your music online or in physical product, and start getting a following.  Then, just as you start getting successful, you get a letter in the mail from another band with the same name threatening to sue you if you don’t stop using the name.  This is where first use in commerce and being able to prove it comes into play.  The standard for who has priority to use a mark is who was either the first to use the mark in commerce or the first to file an intent to use application for the mark with the USPTO.  Hopefully you and your bandmates have been keeping flyers, CDs, or other items along the way since you started using the name that would prove when you first used the name in commerce.  Or you registered the mark yourselves online, or perhaps you have consulted an attorney knowledgeable in this area of the law to help you register your name for federal registration.    If you indeed were using the mark first and can prove it, you would be able to fight off the other band and keep on truckin’ under that name as the Dead would say.

But what if you are what is known as the junior user, and weren’t using the name first?  Ideally before starting to use a name, you would have hopefully run a Google search for the name, perhaps set up an alert to see if anyone else is using it, and perhaps consulted an attorney to run a full search.  But even having done all of the above, you could still end up with another band firing off a cease and desist letter to your band demanding that you stop using the name.  If either you weren’t the first user of the name, or you just don’t want to spend the time, money and hassle of fighting to protect the name or paying to license it from another band, it may just be easier to change your name.

The decision of what steps to take as a band vary from group to group.  I’ll discuss band partnership agreements, entity selection and other measures you can take in future posts.  If you visit the USPTO site and perform a basic search of some of your favorite bands, you can see that some bands have chosen to register their band names for federal protection and others who haven’t.  While federal registration gives you the strongest level of protection, it doesn’t automatically do so.  Enforcing a trademark means monitoring for other uses of your mark, and having your attorney send cease and desist letters to those other users in your class of goods or services ordering them to stop using the name.  Some bands just don’t want the hassle and expense of doing so.

So what’s the best course of action in choosing a band name and trying to protect it in the future?  Here are some tips:

  • Run a search engine search for the name, set up an alert like Google alerts to see if any other bands using the name come up
  • Also check sites like MySpace, Facebook, Twitter, as well as domain name registration sites to see if any bands are using the name
  • Run a basic search on the USPTO site to see if the name is registered
  • Consult with an attorney knowledgeable in trademark law to run a search on the name and possibly register it for federal protection
  • If you opt not to register for federal trademark protection, document, document, document the use of the name by your band with corresponding dates so you can prove
  • Address who owns the band name as part of your band partnership agreement or other internal agreement (this can save you a lot of headache later)

Well Brian I hope that answered some of your questions.  If any of you out there have suggestions for topics you would like covered here, please don’t hesitate to send them my way.

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 birthday!

Saturday, August 21st, 2010

Friday marks an important milestone here in PunkLawyer land, it marks one year since I started my practice.  Not sure if it’s a birthday or an anniversary for the business, but I’m proud to have made it to this point.  It’s been a crazy year at times trying to get a business up and running, but when it gets down to it and I get to practice entertainment law for my clients, I love it.  Negotiating content licenses in this fast changing technological and entertainment environment has been fascinating and has brought me to really think outside the box.  It’s not just knowing what the technology does and can do, but also figuring out if those possibilities match with how the client wants his or her content used.  It’s a tough road, but at the end of the day I’m living my dream, helping clients manage the potential minefields of entertainment and hopefully make a living doing what they love.  As some of my law school classmates like to say, I practice ‘fun law,’ but for me I take it just as seriously as they would a criminal defense case.  So thanks to those who I have met this year, who offered advice, helped me out, and of course thanks to my clients.  I look forward to meeting more of my readers and Twitter followers in the future, it’s been fun getting to know a lot of you online.

In other news, I’ve been working to expand my skill set this week by attending a mediation certification training course.  If you’re not familiar with mediation, it is a form of what is called alternative dispute resolution, where parties can meet with a mediator to work to try and resolve their issues instead of going to court.  Mediation can be used in a variety of settings, from before a lawsuit has been filed to right before it is set to go to court, and in some instances can end up costing less than going to trial.  It also can be used in almost all areas of law, and can avoid having to discuss personal or embarrassing aspects of a dispute in open court before a judge and jury.  I’m excited to apply the skills I’ve learned not only in formal mediations, but also in informal dealings to help my clients work through disputes that may arise in the sometimes crazy world of entertainment.  Look for more on this topic, and if you have questions feel free to send them my way here, on e-mail or via Twitter.  Cheers, and have a great weekend!

ccTLDs, gTLDS, and Making Sense of ICANN’s Alphabet Soup

Saturday, July 24th, 2010

A new Internet land rush started this week, as the .co extension became available.  This extension is what is called a ccTLD, or a country code top level domain, for the country of Colombia.  It has become popular with businesses and corporations, as well as with trademark owners with .co in their names.  Other popular ccTLDs that have had a similar mainstream appeal have been .tv for the country of Tuvalu, and .me for Montegnegro.  The .co domains went on sale Tuesday through registrars such as GoDaddy, and many of them have been snapped up.  This is only the beginning, as the Internet Corporation for the Assignment of Names and Numbers, or ICANN, the organization charged with regulating domain names and other addresses on the Internet, is preparing to make available generic top level domains, or gTLDs in the near future.   ICANN also approved the top level domain .xxx earlier this year for adult web sites, which will go on sale next year.

So how does this affect you and your entertainment enterprise?  You’re probably familiar with the existing domain name extensions, such as .com, .net, and the need to register the domain name of your band or project to protect your space on the Internet.  So let’s say you registered the domain yourbandname.com, and have set up your web page on that domain.  You may have registered the misspellings of the domain, or other top level domains to cover the bases.  Well when the new gTLDs become available, you could wake up and find someone has registered the domain dot.yourbandname, or even yourbandname.sucks.  It is a real possibility that trademark owners and brand managers are concerned about, and several rounds of rules and dispute procedures have been released for public comment and revised by ICANN.  For now, the best approach to this is to keep an eye on what domains are made available and register domains relevant to your brand.

The .sucks and related domains are a real concern for trademark owners and brand managers, as well as free speech advocates.  Look for a future post on these gripe sites and how they interact with new gTLDs, I’m actually fascinated by the intersection of this area of the Internet and the law after looking into it.  In some instances, when trademark owners have gone after operators of domains disparaging their company, such as verizonsucks.com, it has only served to generate more gripe sites and attention to them.  It’s a similar problem for companies who end up with parody accounts on Twitter, such as  @BPGlobalPR that have popped up and certainly not operated by the actual company.  It’s not an immediate concern, as the process of applying to operate a top level domain to sell registrations with the extension .sucks has to be approved by ICANN and costs $45,000, but stranger things have happened on the Internet.  And if it was approved, there are people out there who would find the relatively low cost of registering a .sucks domain to be worth it to express their distaste for a company or product.  Just as an example, I love my Oakley eyeglass frames, but there’s a guy with a page out there devoted to getting Oakley to change how the end of the earpiece is shaped because he poked himself in the eye with the end of his one day.

Managing your brand online is important, and requires constant monitoring, including the opening of the new top level domains, as well as social media sites.  Setting up a Google alert for your brand name isn’t a bad idea to help with this process.  The decision of how to proceed if someone is using your name, or mark is one that differs depending on the strength of the mark and how vigorously you want to be in protecting it.  Look for more tips in the future.  I’d be interested in hearing from you on these issues as well.

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!

New Book: Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law

Thursday, April 1st, 2010

I am proud to announce the release of a book I co-edited as part of my work with the American Bar Association Section of Intellectual Property Law Committee on Computer Games and Virtual Worlds, Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law, for purchase from the American Bar Association! Check it out!