Thanks to megaplatinium.net for this story. This is kind of an ironic post for me to blog about, since I am utterly speechless about the outcome, and even more confused about exactly what the RIAA is trying to achieve as part of these suits. This woman downloaded 24 songs. TWENTY FOUR. Where is the justice here?
Speaking of justice, Ms. Thomas-Rasset had refused to settle with the RIAA, believing she had the law on her side. She was sorely mistaken, and the RIAA has this to say about her actions:
"We are pleased that the jury agreed with the evidence and found the defendant liable. Since day 1, we have been willing to settle the case and remain willing to do so."
Wow, you really showed her, didn't you? Really set the example for the purpose of copyright laws and their intended purpose and enforcement. This case is just another reason why I feel that copyright law is at an impasse - either it needs to be amended to conform with new technologies and their practicalities, or the court system needs to step up and enforce some measure of public policy here. I fail to see how verdicts like this are serving the greater good of either artists or the public.
Comments welcome, especially if you disagree. I would love to find some rationale behind this that makes sense beyond the print on the pages of Copyright Law. Shouldn't "justice" marry the law with policy?
Friday, June 19, 2009
Thursday, June 11, 2009
Virtual Stampede Coming to Facebook on 12:01 6/13 - Run for Your Trademarks!!
I feel it's my duty to make this news known to anybody that may not know it... although I highly doubt that is the case, especially given my paltry number of readers (love every single one of you though... all 5 of you. Your devotion knows no bounds). Anyway, facebook is officially giving usernames out on 12:01 am on Saturday, June 13th. This basically means you can get a URl like: www.facebook.com/johnsmith. I can bet your booty I'll be in line for my name. However, it has given rise to some interesting trademark issues, which Jonathan Handel addresses in his blog. So bands - if your band name or logo is REGISTERED with the USPTO, you can go to www.facebook.com/username and put in the registration number to reserve the URL extension. If it's not formally registered, I'm afraid you're going to be in line with the rest of us, most likely crashing Facebook @ 12:01. Let the games begin.
A Look At the Yahoo! v. NFLPA: Are Player Stats Copyrightable?
I am pleased to temporarily step aside as the main author of this blog and present a blog written by one of our legal interns, Mr. Lincoln Cohoon. While I generally don't cover sports as part of my realm of "entertainment," the recent case with Yahoo! and the Player's Association presents copyright issues that are simply too juicy to pass up. Therefore, I invite you to read Lincoln's thoughts on the issue, and to contribut your own as well. Enjoy!
What rights do athletes and teams have to the statistics produced during a game?
By: Lincoln Cohoon
Millions of sports fans across the globe participate in fantasy sports each season. This growing business produces more than one billion dollars in revenues for the companies that sponsor and run the fantasy sports leagues. However, a recent debate has emerged over whether athletes, teams, or even the leagues have exclusive rights to the use of these statistics.
Recently, Yahoo, Inc. has filed suit against the Nation Football League Players Association (NFLPA) for access to player statistics. A June 3rd article from Yahoo.com, “Yahoo Sues NFL Players Association” by Steve Karnowski, details the dispute and the legal dilemma that surrounds it. Yahoo wants the courts to require the NFLPA to provide player statistics without having to pay the NFLPA royalties for this information. Yahoo claims the information is already public knowledge and therefore there is no need to renew the previous use of statistics agreement with the NFLPA that expired on March 1st. As the article states, this is not the first time that a major sports leagues’ players association has been involved in a lawsuit over player statistics. The courts have ruled against the players associations on two other occasions; in 2007 against the Major League Baseball’s Players Association and just this past April against the NFLPA in a suit with CBS.
Two issues are at stake with this suit, the first being whether this court will follow suit and rely on the 8th Circuit’s decision. Because this case is also being tried in the 8th Circuit, the same Circuit which brought down the ruling the previously mentioned MLB case, the court is bound by that decisions. Thus, unless the lawyers for the NFLPA can somehow distinguish this case from the MLB case (which I’m sure the NFLPA’s lawyers will attempt with a vengeance), the federal court is bound to follow the precedent set by the previous case. Since the facts, on their face, do not appear different enough to warrant a contrary ruling, it would appear that Yahoo is likely to at least win Round One.
The bigger question here revolves around what may happen on appeal. Regardless of who wins in the lower court this case, it seems to be destined to reach at least the Court of Appeals. From there, The Court of Appeals could reverse the previous decision set by the lower court (taking into considering whether the MLB case was followed and why), it could deem that this case presents a unique issue and rule differently (although generally the Court of Appeals will not do this unless the lower court committed a grave legal error in its ruling), or they could let the previous decision and stand and once again rule against the NFLPA .
The second issue of large concern is whether players and leagues have rights to their (own) statistics. The legal arguments likely to be set forth are that the information is public knowledge, and that a fantasy sports provider (Yahoo in this instance), simply compiles and generates for their users. This argument focuses on the notion that copyright protection does not protect facts; it only protects the expression of ideas. Player statistics are public information that anyone could collect by simply reading the paper or watching the game, but more importantly, player statistics are factual information – not creative expressions. Because of this, stats may not be eligible for copyright protection at all.
An aside to this may be that while facts themselves are not protectable, a unique arrangement of facts may be. For example, a book on the civil war, while relying historical facts, may present it in a unique way that renders the book (not the facts themselves) protectable. Building on this, it may benefit Yahoo! to argue that, not only are the stats themselves not copyrightable (and thus not subject to licensure), but the unique way in which Yahoo! arranges and presents them actually entitles Yahoo! to copyright protection over that presentation.
In my opinion, this issue is driven by the athletes trying to get a bigger piece of the pie – and a bad PR move on their part, as they are seemingly failing to consider the negative ramifications this could have on people’s desire to watch sports or follow athletes and their numbers. With the nasty PR blows that these leagues and athletes have recently taken (steroids in MLB, conduct issues in the NFL, concerns about violence in the NHL, rising ticket prices in all of the leagues) one would think that the leagues would smarten up and actually give something back to the fans. I understand the business side of the argument and the fact that there wouldn’t be fantasy sports if there weren’t athletes, but I really think that it is time for the athletes to realize that there really wouldn’t be professional sports if there are no fans to follow them.
What rights do athletes and teams have to the statistics produced during a game?
By: Lincoln Cohoon
Millions of sports fans across the globe participate in fantasy sports each season. This growing business produces more than one billion dollars in revenues for the companies that sponsor and run the fantasy sports leagues. However, a recent debate has emerged over whether athletes, teams, or even the leagues have exclusive rights to the use of these statistics.
Recently, Yahoo, Inc. has filed suit against the Nation Football League Players Association (NFLPA) for access to player statistics. A June 3rd article from Yahoo.com, “Yahoo Sues NFL Players Association” by Steve Karnowski, details the dispute and the legal dilemma that surrounds it. Yahoo wants the courts to require the NFLPA to provide player statistics without having to pay the NFLPA royalties for this information. Yahoo claims the information is already public knowledge and therefore there is no need to renew the previous use of statistics agreement with the NFLPA that expired on March 1st. As the article states, this is not the first time that a major sports leagues’ players association has been involved in a lawsuit over player statistics. The courts have ruled against the players associations on two other occasions; in 2007 against the Major League Baseball’s Players Association and just this past April against the NFLPA in a suit with CBS.
Two issues are at stake with this suit, the first being whether this court will follow suit and rely on the 8th Circuit’s decision. Because this case is also being tried in the 8th Circuit, the same Circuit which brought down the ruling the previously mentioned MLB case, the court is bound by that decisions. Thus, unless the lawyers for the NFLPA can somehow distinguish this case from the MLB case (which I’m sure the NFLPA’s lawyers will attempt with a vengeance), the federal court is bound to follow the precedent set by the previous case. Since the facts, on their face, do not appear different enough to warrant a contrary ruling, it would appear that Yahoo is likely to at least win Round One.
The bigger question here revolves around what may happen on appeal. Regardless of who wins in the lower court this case, it seems to be destined to reach at least the Court of Appeals. From there, The Court of Appeals could reverse the previous decision set by the lower court (taking into considering whether the MLB case was followed and why), it could deem that this case presents a unique issue and rule differently (although generally the Court of Appeals will not do this unless the lower court committed a grave legal error in its ruling), or they could let the previous decision and stand and once again rule against the NFLPA .
The second issue of large concern is whether players and leagues have rights to their (own) statistics. The legal arguments likely to be set forth are that the information is public knowledge, and that a fantasy sports provider (Yahoo in this instance), simply compiles and generates for their users. This argument focuses on the notion that copyright protection does not protect facts; it only protects the expression of ideas. Player statistics are public information that anyone could collect by simply reading the paper or watching the game, but more importantly, player statistics are factual information – not creative expressions. Because of this, stats may not be eligible for copyright protection at all.
An aside to this may be that while facts themselves are not protectable, a unique arrangement of facts may be. For example, a book on the civil war, while relying historical facts, may present it in a unique way that renders the book (not the facts themselves) protectable. Building on this, it may benefit Yahoo! to argue that, not only are the stats themselves not copyrightable (and thus not subject to licensure), but the unique way in which Yahoo! arranges and presents them actually entitles Yahoo! to copyright protection over that presentation.
In my opinion, this issue is driven by the athletes trying to get a bigger piece of the pie – and a bad PR move on their part, as they are seemingly failing to consider the negative ramifications this could have on people’s desire to watch sports or follow athletes and their numbers. With the nasty PR blows that these leagues and athletes have recently taken (steroids in MLB, conduct issues in the NFL, concerns about violence in the NHL, rising ticket prices in all of the leagues) one would think that the leagues would smarten up and actually give something back to the fans. I understand the business side of the argument and the fact that there wouldn’t be fantasy sports if there weren’t athletes, but I really think that it is time for the athletes to realize that there really wouldn’t be professional sports if there are no fans to follow them.
Monday, June 8, 2009
NoPerformanceTax.com - Why Should Radio Be Different?
I go all sorts of places looking for good blog fodder - I have my Google Alerts, my favorite music business news sites (i.e. hypebot.com) and my favorite music biz/legal blogs (i.e. ipandentertainmentlaw.com, Copyrights & Campaigns, Ars Technica), etc. However, I must give credit where credit is due, and must admit that my parents give me amazing blog fodder. Any time a music business issue, article, story, etc. comes across their plates, I almost always get an email. So thanks, mom and dad. This particular blog comes courtest of my father, who came across noperformancetax.com and asked me about it. So, here's my explanation, which comes larger from an email I sent back to my Dad:
Ok, I took a look @ the website and I knew EXACTLY what it was the second I saw it.
So, copyright owners [editor's note: this means you, artists!] have 6 rights that are exclusive to them unless they choose to license them to people: 1) the right to copy (reproduce); 2) rt to distribute; 3) rt to create derivative works (works that are based on an original piece but turn it into something different from the original, like a string version of a piano concerto); 4) rt to display; 5) rt to perform publicly; and finally, a 6th right that was added under the Digital Millennium Copyright Act (aka the DMCA): 6) the rt to perform publicly by DIGITAL transmission.
When the 6th right first came up in the Congress, it was SUPPOSED to apply to all public performances of music. However, because the National Association of Broadcasters [editor's note: the organization sponsoring noperformancetax.com] has so much money and can pay for lobbying efforts, it was changed to "digital" transmission. This means that any music broadcast DIGITALLY - mainly webstreaming like radio stations, Pandora and Napster - has to pay for EACH song they play. The Copyright Royalty Board recently established rates for this, which is currently .0018 cents for commercial use. HOWEVER, that is PER SONG, PER USER. When you have millions of listeners, like Pandora does, who listen to roughly 20 songs an hour, that adds up. Ad-based revenue isn't compensating for this, which means that companies like Pandora might go out of business because, as huge as they are, they can't keep up with the licensing fees. This means that users will go back to piracy, because they want the music for free or not at all. So a reasonable licensing fee still needs to be worked out because it just adds up to too much money.
Now, getting back to the point. The "digital" qualification means that... bingo.... ANALOGUE is out. Which means that RADIO doesn't have to pay ANYTHING for ANY songs they play. That's what that website is about - it's about the broadcast industry, who basically forced only the digital services to start paying, is being called out on their crap and they don't want to pay. Obviously you know how I feel about it - if webcasters have to pay, why not broadcasters? There are mom and pop shops trying to pop up on the internet and make a name for themselves as a digital radio station or music download service, but they simply can't afford it. In contrast, the broadcast industry and innovating NOTHING and it owned mainly by Clear Channel. WTF. It's going completely against the new model for music.
Furthermore, those statutory fees are going to copyright owners - YES, that means record labels are getting paid for the use of the sound recording, since they usually own the masters. However, the performance right applies to the underlying "song" copyright as well, which is usually held (at least in part) by the original artists and/or songwriter. This is money that they're not getting, despite the fact that radio makes more than enough money to survive. Yes, radio does have great promotional value; but so does internet radio and streaming services! Why should they alone have to pay for the use of music?
So honestly, I can't support the cause of the broadcast industry - I think they SHOULD pay as long as webcasters have to pay. Broadcasters are jipping songwriters by not paying and I'm just not down with that. I'm not saying the compensation system is perfect or even fair and I'm not cool with the rates right now - I want webcasters to stay in business, so they need to lower the rates or create a blanket license or something, like they do with venues. (PS - that's why you can hear anything at a hockey game or a concert; because the venue pays one BLANKET fee and they can play whatever they want.) I feel that if the broadcast industry was forced to start paying, they could use their leveraging power to equalize the rights. But right now, their just capitalizing off their lobbying power when webcasters are struggling to promote a new music business model, while attempting to be fair to copyright owners. That's my 2 cents.
Ok, I took a look @ the website and I knew EXACTLY what it was the second I saw it.
So, copyright owners [editor's note: this means you, artists!] have 6 rights that are exclusive to them unless they choose to license them to people: 1) the right to copy (reproduce); 2) rt to distribute; 3) rt to create derivative works (works that are based on an original piece but turn it into something different from the original, like a string version of a piano concerto); 4) rt to display; 5) rt to perform publicly; and finally, a 6th right that was added under the Digital Millennium Copyright Act (aka the DMCA): 6) the rt to perform publicly by DIGITAL transmission.
When the 6th right first came up in the Congress, it was SUPPOSED to apply to all public performances of music. However, because the National Association of Broadcasters [editor's note: the organization sponsoring noperformancetax.com] has so much money and can pay for lobbying efforts, it was changed to "digital" transmission. This means that any music broadcast DIGITALLY - mainly webstreaming like radio stations, Pandora and Napster - has to pay for EACH song they play. The Copyright Royalty Board recently established rates for this, which is currently .0018 cents for commercial use. HOWEVER, that is PER SONG, PER USER. When you have millions of listeners, like Pandora does, who listen to roughly 20 songs an hour, that adds up. Ad-based revenue isn't compensating for this, which means that companies like Pandora might go out of business because, as huge as they are, they can't keep up with the licensing fees. This means that users will go back to piracy, because they want the music for free or not at all. So a reasonable licensing fee still needs to be worked out because it just adds up to too much money.
Now, getting back to the point. The "digital" qualification means that... bingo.... ANALOGUE is out. Which means that RADIO doesn't have to pay ANYTHING for ANY songs they play. That's what that website is about - it's about the broadcast industry, who basically forced only the digital services to start paying, is being called out on their crap and they don't want to pay. Obviously you know how I feel about it - if webcasters have to pay, why not broadcasters? There are mom and pop shops trying to pop up on the internet and make a name for themselves as a digital radio station or music download service, but they simply can't afford it. In contrast, the broadcast industry and innovating NOTHING and it owned mainly by Clear Channel. WTF. It's going completely against the new model for music.
Furthermore, those statutory fees are going to copyright owners - YES, that means record labels are getting paid for the use of the sound recording, since they usually own the masters. However, the performance right applies to the underlying "song" copyright as well, which is usually held (at least in part) by the original artists and/or songwriter. This is money that they're not getting, despite the fact that radio makes more than enough money to survive. Yes, radio does have great promotional value; but so does internet radio and streaming services! Why should they alone have to pay for the use of music?
So honestly, I can't support the cause of the broadcast industry - I think they SHOULD pay as long as webcasters have to pay. Broadcasters are jipping songwriters by not paying and I'm just not down with that. I'm not saying the compensation system is perfect or even fair and I'm not cool with the rates right now - I want webcasters to stay in business, so they need to lower the rates or create a blanket license or something, like they do with venues. (PS - that's why you can hear anything at a hockey game or a concert; because the venue pays one BLANKET fee and they can play whatever they want.) I feel that if the broadcast industry was forced to start paying, they could use their leveraging power to equalize the rights. But right now, their just capitalizing off their lobbying power when webcasters are struggling to promote a new music business model, while attempting to be fair to copyright owners. That's my 2 cents.
Thursday, June 4, 2009
Dividing Music Income Between Band Members
I just wanted to post a quick link for artists. I tweeted about this, but for those who don't follow me on Twitter (ahem, you should - it's @sjamieson...shameless plug...), I didn't want to leave you out of the loop. Rich Stim keeps a great IP blog and recently wrote a great post on dividing up your different sources of music income between band members. Of course, you could address this in a BAND AGREEMENT, but if you didn't....
http://www.patentcopyrighttrademarkblog.com/2009/06/music-income-dividing.html
Enjoy!
http://www.patentcopyrighttrademarkblog.com/2009/06/music-income-dividing.html
Enjoy!
Tuesday, June 2, 2009
Linda DeHart Brings Artistic Healing
With her permission, I am proud to have the opportunity to blog about one of my favorite customers, Ms. Linda DeHart. Linda is an artist living in Cambridge, Massachusetts, who specializes in watercolors. About 8 months ago, she came to me in flurry of energy and asked for my help with some copyright licensing matters for her DVD, "Colors in Motion." This project was born out of a much larger installation entitled "A Thousand Windows: A Long Walk in Beauty." The installation contains 1,000 4x6 watercolors; each completely unique and handpainted by Linda. The installation is gorgeous but is very large, requiring a wall in excess of 140 feet. Still, the paintings were so well received that she endeavored to find a way to share them with the world in something more portable than a single installation.
Hence, "Colors in Motion" was born. It is a soothing DVD that sychncronizes Linda's art perfectly with 10 specialy selected pieces of music, most of which were composed by local musicians in the Boston area. I was previleged to go to the launch of this extraordinary project, and it was clear that everyone in the room was deeply touched and VERY relaxed after the presentation. Currently, Linda is meeting with several large healthcare facilities with an aim to have the work displayed on a constantly running screen; perhaps in a lobby, patient rooms, etc. Any place of pain where one might be soothed by a brief respite of art. If you would like to see a bit of "Colors in Motion," you may do so at www.dehartart.com. The DVD may also be ordered through the website.
On top of all this, Linda is receiving quite a bit positive press surrounding her work. Most recently, Linda was featured in Healthcare Design Magazine. The article not only speaks to the healing benefits of Linda's art, but also chronicals her journey in life and art up to this point. I would urge you to take just a few minutes to read through her extraordinary story. If you are an artist, I'm sure you can appreciate the time and effort spent on this project; if you are an industry professional, I'm sure you work with artsits such as this on a daily basis and, like myself, as extremely proud of their success! Enjoy.
Hence, "Colors in Motion" was born. It is a soothing DVD that sychncronizes Linda's art perfectly with 10 specialy selected pieces of music, most of which were composed by local musicians in the Boston area. I was previleged to go to the launch of this extraordinary project, and it was clear that everyone in the room was deeply touched and VERY relaxed after the presentation. Currently, Linda is meeting with several large healthcare facilities with an aim to have the work displayed on a constantly running screen; perhaps in a lobby, patient rooms, etc. Any place of pain where one might be soothed by a brief respite of art. If you would like to see a bit of "Colors in Motion," you may do so at www.dehartart.com. The DVD may also be ordered through the website.
On top of all this, Linda is receiving quite a bit positive press surrounding her work. Most recently, Linda was featured in Healthcare Design Magazine. The article not only speaks to the healing benefits of Linda's art, but also chronicals her journey in life and art up to this point. I would urge you to take just a few minutes to read through her extraordinary story. If you are an artist, I'm sure you can appreciate the time and effort spent on this project; if you are an industry professional, I'm sure you work with artsits such as this on a daily basis and, like myself, as extremely proud of their success! Enjoy.
Monday, June 1, 2009
Osbourne Sues Over "Black Sabbath" Trademark
New bands often come to me for legal services and say "We want to do things the 'right way' this time around. Where do we start?" While there are a myriad of answers to this question, and I customize a legal plan with each band I work with, there are a few legal "foundations" I recommend to almost every band. First and foremost, a band agreement. It's basically the music industry version of a partnership agreement, but it sets everything out in writing, up front. I hate to be morbid, but the odds are stacked against bands - almost all of them break up. Of course, every band I work with assures me this will not be the case with their band... but I'm a lawyer. I'm a realist. You call a lawyer for only two reasons: 1) to prevent shit from hitting the fan (or hitting the fan in a better way); or 2) to clean up all the shit just just hit the fan. As a so-called "transactional" attorney, I work with numero uno; I try to prevent things from actually blowing up in people's faces should anything go awry.
That being said, I advise bands to plan (oh god) for the worst - what will happen to your songs "if" you break up? What will happen to your band account? And, most importantly, what will happen to your band name? If you don't file a proper trademark for your band name and designate who owns it (I usually advise bands form a business entity and let the entity hold the trademark) this could happen to you. Osbourne and other members of Black Sabbath, like many bands, placed their trust in one another and didn't file a trademark for "Black Sabbath" while Ozzy was in the band. Years later, Iommi filed the mark under his own name. Scrupulous? Probably not. However, both men now find themselves in a pickle and are headed for the court house.
And they're not the first. Axel Rose owns the rights to the "Guns N' Roses" name, which enabled him to form a completely different name under the same name (and gives him exclusive control over when and where the mark will be displayed and what it will be associated with). Pink Floyd were involved in a bitter legal battle after Roger Waters left and wanted to take the name with him (the remaining members ultimately got to keep the name). The list goes on and on. I can't stress enough how important it is to plan for these thing upfront!
Many bands claim it's beyond their budget to do some of these things, but you must think about your band as an investment. I know folks don't like to mix art and business... but it IS your business. If it's not, you're never going to be able to survive as a "professional musician." It costs $275 to file a trademark. Let me tell you, litigation is NOT $275! Plan upfront = insurance policy. Of course, I would recommend hiring a competent attorney to file the mark for you, but if can't do that, you can at least google "how to file a trademark" and take a whack at it yourself. Just please, please do it. If your band goes down, don't you want to go down in a bad-ass-rock-star-flame-of-glory instead of a bitter legal tiff? Law suits are so not metal.
As a final note, Lawyers 4 Musicians (http://lawyers4musicians.com) posted this great blog about trademarks. It's a must read.
That being said, I advise bands to plan (oh god) for the worst - what will happen to your songs "if" you break up? What will happen to your band account? And, most importantly, what will happen to your band name? If you don't file a proper trademark for your band name and designate who owns it (I usually advise bands form a business entity and let the entity hold the trademark) this could happen to you. Osbourne and other members of Black Sabbath, like many bands, placed their trust in one another and didn't file a trademark for "Black Sabbath" while Ozzy was in the band. Years later, Iommi filed the mark under his own name. Scrupulous? Probably not. However, both men now find themselves in a pickle and are headed for the court house.
And they're not the first. Axel Rose owns the rights to the "Guns N' Roses" name, which enabled him to form a completely different name under the same name (and gives him exclusive control over when and where the mark will be displayed and what it will be associated with). Pink Floyd were involved in a bitter legal battle after Roger Waters left and wanted to take the name with him (the remaining members ultimately got to keep the name). The list goes on and on. I can't stress enough how important it is to plan for these thing upfront!
Many bands claim it's beyond their budget to do some of these things, but you must think about your band as an investment. I know folks don't like to mix art and business... but it IS your business. If it's not, you're never going to be able to survive as a "professional musician." It costs $275 to file a trademark. Let me tell you, litigation is NOT $275! Plan upfront = insurance policy. Of course, I would recommend hiring a competent attorney to file the mark for you, but if can't do that, you can at least google "how to file a trademark" and take a whack at it yourself. Just please, please do it. If your band goes down, don't you want to go down in a bad-ass-rock-star-flame-of-glory instead of a bitter legal tiff? Law suits are so not metal.
As a final note, Lawyers 4 Musicians (http://lawyers4musicians.com) posted this great blog about trademarks. It's a must read.
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