Warning: session_start() [function.session-start]: open(/home/content/70/3468870/tmp/sess_6h8j2ovock8auor2g56i7civk6, O_RDWR) failed: No such file or directory (2) in /home/content/70/3468870/html/punklawyerblog/wp-content/plugins/wp-mobilizer/wp-mobilizer.php on line 35

Warning: session_start() [function.session-start]: Cannot send session cookie - headers already sent by (output started at /home/content/70/3468870/html/punklawyerblog/wp-content/plugins/wp-mobilizer/wp-mobilizer.php:35) in /home/content/70/3468870/html/punklawyerblog/wp-content/plugins/wp-mobilizer/wp-mobilizer.php on line 35

Warning: session_start() [function.session-start]: Cannot send session cache limiter - headers already sent (output started at /home/content/70/3468870/html/punklawyerblog/wp-content/plugins/wp-mobilizer/wp-mobilizer.php:35) in /home/content/70/3468870/html/punklawyerblog/wp-content/plugins/wp-mobilizer/wp-mobilizer.php on line 35
The PunkLawyer Blog Trademark Archives - The PunkLawyer Blog

Archive for the ‘Trademark’ Category

.Sucks? How about .no?

Thursday, April 2nd, 2015

The new gTLDs, or generic top level domains, have been in the news a lot lately.  Taylor Swift made big news when she made a smart strategic move and purchased a number of domains related to her name and brand with the new gTLDs .adult, and .porn.  While this initially may seem like a publicity stunt, it’s actually a smart move on her part to protect her brand, and one that brand owners need to take note of in terms of planning their domain strategy.  With the rollout of the new gTLDs, there are more options for what a web address says to the right of the dot, and brand owners are concerned about the potential options that could make their brand look bad.  This is particularly true in the case of .sucks, a domain that I have been monitoring for some time.   Just last week, the IP Constituency of ICANN, the group that represents brand owners at the international body that governs the internet, sent a letter urging ICANN to stop the rollout of the .sucks domain. 

So how can brand owners protect themselves in this new landscape of gTLDs?  A good place to start is setting up a monitoring service to monitor your brands and alert you to marks and domains that may be similar to yours so that you can take appropriate actions.  Another good step to take is to register your brands with the Trademark Clearinghouse, which will notify registered trademark holders of new gTLDs that may be using their marks, and offers them the chance to object to the registration of such domains.  If nothing else, setting up a Google Alert can be a good, inexpensive way to monitor mentions of our mark and news stories related to the brand online.  This space is likely to continue to generate interesting news stories, and I’ll do my best to cover them here.  These services are also among those that Scelsi Entertainment and New Media Law offers, please visit our website for more information and to contact me.

Do You Hear What I Hear?

Monday, 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.

Resolve to Be Smart About Trademarks in 2015

Friday, 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.

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

Tuesday, 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.

When Should I Consider Trademarks?

Tuesday, 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.

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. 

 Embedded image permalink

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.

 Embedded image permalink



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.

Whose Domain Is It Anyway?

Thursday, January 27th, 2011

I posted a while back about the introduction of new generic top level domains (gTLDs) by ICANN, the organization charged with regulating domains and the like on the internet.  Trademark owners are keeping an eye on the proposed process for registering for these new domains, as well as how potential domain disputes will be handled.  The buzz has already started, as the introduction of the .jobs domain recently sent a shudder through the online classified advertising community, as some of these sites provide job listings for free as opposed to the sites where businesses would have to pay to post jobs.

Another interesting domain related dispute that is before ICANN is that over the .music TLD.  As was reported this week on Billboard.biz, some of the trade organizations representing record labels and songwriters, among others, have sent a letter objecting to the proposed means of registering domain names with the .music extension.  Citing concerns about piracy sites being able to register for .music domains, the trade organizations expressed a desire for the ‘music community’ to have control over the granting of .music domains.  This control would include not granting a .music domain to parties offering free unlicensed music on their sites, a determination that could be difficult to make given all of the new sites and technologies for sharing content.  It will be interesting to see how this debate pans out, particularly for artists as well as new music technology companies creating music apps and the like.  Control of domain names has been an area of contention for artists over the years, who have signed contracts only to find out later that the contract gave their record label ownership and control of the artist’s domain name.  The issue of where independent artists seeking to register a .music domain would fall if control was given to the requesting parties would be an interesting one as well, particularly given all of the artists using social media and other platforms to share their music.  Hopefully once ICANN releases its procedures for registering these new gTLDs it will provide some clarity to situations like this.  I’ll be keeping an eye on these domain issues, not only for the blog but also because I’m speaking on a panel about gTLDs for trademark owners at the American Bar Association Section of Intellectual Property Law Annual Meeting in April.

As you are probably aware or have learned reading the posts here, there is quite a bit of activity going on at the intersection of new technologies, media, and the law.  I’m fascinated by this area and how the law develops in response to issues that might arise.  That’s why I’m really excited to have been invited to speak about legal issues in the use of social media at unGeeked Orlando March 3-5, 2011.  What is unGeeked?  It’s a 3 day social media, marketing and branding retreat designed to engage both the speakers and attendees.  It’s not your typical conference where a speaker will give a presentation with lots of slides and only a few minutes for questions.  At unGeeked you will get the chance to participate with the speakers, and build professional relationships while learning about how to leverage your brand.  For more information about the event, as well as the national and regional speakers, check out the website here.  If you’re interested, contact me for a 10% discount on registration.  I hope to see some of you there

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.

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!