Endorsements, Bloggers & The Federal Trade Commission: New Rules

The U.S. Federal Trade Commission ("FTC") has just released new rules and guidelines that will govern the disclosures advertisers must make about endorsements contained in their ads and any payments that are made by the advertiser for the endorsement. The rules include bloggers and place a greater duty on celebrity endorsers to be truthful about their connection to products they endorse. Here is a brief FTC summary of the new guidelines. Our initial thoughts about the new rules: be upfront and disclose who is really behind the advertisement, blog, etc. This is going to be interesting and challenging. More to follow.

Copyrights & Music:Does a Cell Phone Ringing in Public Violate Copyright Law?

In an important ruling for the millions of cell phone users whose ringtones play in public - and for the cell phone companies that provide the ring tones - a federal court in New York just ruled that merely playing the ring tone in public for personal (not commercial) purposes is not a "public performance" that would trigger a royalty payment to the copyright owner of the song the ring tone is based on. One of the keys to the decision was that it is limited to personal uses of ringtones "without any purpose of direct or indirect commercial advantage". Thus to the extent someone might be interested in playing ringtones in public for commercial purposes - let's say a "Battle of the Ringtones" contest - this ruling would not apply. Beyond that, one of the interesting tidbits that came out of the court ruling is confirmation of the amount of money the cell phone companies pay in royalties for reproducing the song to begin with: 24 cents. Here is a summary of the court opinion and for those who are really ambitious, here is a copy of the court opinion itself.

A New Kind of Musical Rhapsody: Brian Wilson Set to Complete Some of Gershwin's Unfinished Works

The L.A. Times reported today that Brian Wilson - the legendary songwriter and co-founder of The Beach Boys - has been granted permission to complete some of the unfinished musical works that George Gershwin left behind when he died prematurely at age 38 about seventy years ago. The newspaper story goes into some detail to explain how this came about after all this time and why Gershwin and Wilson may not be the strange musical bedfellows they appear to be at first. This kind of extraordinary creative endeavor holds great promise. We will look forward to the results with great anticipation. And....here is a link to one of our favorite Brian Wilson/Beach Boys compositions of all time which wasn't necessarily a hit: "The Warmth of the Sun". [Brian W. reportedly wrote it the day of the JFK assassination].

Veoh Video Website Defeats Copyright Infringement Lawsuit by Major Studios

In a decision that portends big problems for Viacom's lawsuit against Google's YouTube website, a federal court decided last week that Veoh's video posting website is not guilty of copyright infringement. This case is not only important because of the pending Viacom vs. Google lawsuit, but because it details WHY Veoh was not guilty of copyright infringement even though the website does post copyrighted material without permission. Although this Court's decision is not binding on other courts around the country, the decision essentially outlines possible ground rules for a video-sharing website business model that is legal. It is worth comparing and contrasting how Veoh operates as compared to Napster and Grokster and other music-sharing websites that have been declared illegal. It will also be interesting to compare and contrast Veoh's service to YouTube's to see how they line up and how they differ.

Copyrights & Music: Ellen DeGeneres Rolls Into Court

Last week - at virtually the same time she was named the new judge on "American Idol" to replace Paul Abdul - Ellen DeGeneres' production company was sued by several major record labels for regularly and routinely using music on her daytime TV show without a license. The lawsuit alleges that about 1,000 songs have been used without permission. We don't watch the DeGeneres show regularly, but we understand that she's a music lover and has a segment each show where she dances to a popular song selected by a DJ. But that's a use that requires a license and according to the lawsuit when the show's producers were advised the program needs a license, their response was "We don't roll that way". Perhaps not. But since the U.S. Copyright Act allows for damages of up to $150,000 per work infringed, the show could be exposed to up to $150 million in damages. We don't really think the production company is going to end up paying anywhere near that. But they probably will pay something and probably more than it would have cost them if they had gotten the licenses to begin with. This, of course, raises the age-old question: is it better to ask for permission or forgiveness?

When Is The Best Time To File A Copyright Application?

Recently we were asked whether an author of a book-in-progress should file a copyright application to protect the book now or wait until the book is finished. In this situation it sounded like there isn't a big need to file the copyright application now because it is not a situation where there is a high likelihood of pre-publication piracy as there often is with sound recordings by popular recording artists or major motion pictures. If you are concerned about pre-publication piracy, then the scale tips in favor of registering the copyright in the unpublished version or using the Copyright Office’s “pre-registration” system. (Check the Copyright Office website for more info about the “pre-registration” procedure). On the other hand, given the relatively low filing fee for a copyright application ($35 if filed online), it might make the author “feel” better to know that the unpublished version has been registered for copyright purposes. But…….registering the preliminary unpublished version is no substitute for registering the copyright in the finished version when it is available. Thus doing it twice will increase the costs. But given the relatively low cost of the filing fee, that may not be much of an impediment. Another issue to consider in this kind of situation is whether there is enough original authorship in the work now to support a copyright application. If all you have is a one paragraph summary of what the book is going to be or just an outline, it is not clear that the Copyright Office would accept the copyright application. What is enough original authorship for copyright registration purposes is a difficult question to answer with any precision and is probably worth a blog entry all of its own.

Dueling Golf Ball Patents: Who Knew Golf Balls Could Be Worth All the Trouble?

The golf ball wars between the makers of Titleist and Callaway golf balls continue. A federal court judge recently lifted an injunction which had prohibited the manufacturer of the Titlteist Pro V1 from selling the balls. Here is an article that describes the latest in the ongoing battle between the two golf kings.