Digital Music Royalties Waiting to Be Paid - Part 1

These days, there are so many various ways that musicians (recording artists), songwriters, record labels and music publishers can get paid (or not get paid - as the case may be) when recorded music is played on traditional AM/FM radio, satellite radio, Internet streaming, cable TV, etc., it can make your head spin. For example, for many years three organizations (ASCAP, BMI and SESAC) have collected royalties paid by traditional AM/FM radio stations for playing music and then distributed those royalties to the songwriters who wrote the songs and the music publishers who own the copyrights in them. But due to a long-standing tradition and legal exemption, the singers and musicians who perform on the records played on AM/FM radio stations - as well as the record labels who own the recordings - DON'T get paid any share of the royalties collected by ASCAP/BMI/SESAC from the radio stations. And to make it even more confusing, when those same songs are streamed over the Internet by the companies that own the AM/FM radio stations, everyone - including the recordings artists and record labels - DO get paid. Go figure.

Needless to say, it's a confusing situation for most recording artists, songwriter, music publishers and record labels. But as a starting point, we highly recommend that songwriters and music publishers affiliate themselves with either ASCAP, BMI or SESAC so that they can paid what they are due when the songs they write and publish get played on traditional AM/FM radio and in other public performances. We also recommend, of course, that songwriters and publishers REGISTER THEIR COPYRIGHTS with the U.S. Copyright Office.

We are also recommending that recording artists and record labels get familiar with a non-profit organization called Sound Exchange (click here) so that they can get paid when their songs are played on satellite radio such as SIRIUS/XM, Internet streaming radio stations, etc. We will have a more detailed report about Sound Exchange in an upcoming blog entry. In the meantime, please call or write if you have any questions about these kinds of issues.

Are Mardi Gras Costumes Copyrightable?

U.S. copyright law protects a lot of content - everything from books and art to motion pictures, TV shows, sculpture and choreography - and lots in between. But certain things are not copyrightable: ideas, concepts, short titles and useful articles like clothing designs. But here is a recent article that explores the boundaries of the law regarding clothing designs. It addresses the question of whether those grandiose and fabulous Mardi Gras costumes way down in New Orleans are suitable (no pun intended) for copyright protection. We do not know if this issue will be tested in court or how a judge might rule if presented with the issue. But we do believe that these kinds of Mardi Gras costumes are way more than merely functional clothing designs and therefore they should be copyrightable. If that happens, however, is it just going to clog up the courts with more lawsuits when one Mardi Gras costumer designer decides that another costume design is too close to his or hers and constitutes copyright infringement? We will see.

Hollywood In Sight: "The Runaways" Film

We are pleased to report that the new film entitled "The Runaways" starring Kristen Stewart, Dakota Fanning, and Michael Shannon opened nationally yesterday after having its Los Angeles red-carpet premiere Thursday March 11, 2010. Kristen Stewart and Dakota Fanning star as Joan Jett and Cherie Currie, two of the founding members of the first all-female rock and roll band "The Runaways". Michael Shannon - nominated for an Academy Award for his role in "Revolutionary Road" - co-stars as our friend and client, the legendary music impresario Kim Fowley.

So far the word on the street is that Michael Shannon almost steals the film from Stewart and Fanning - the stars of the latest "Twilight" movie. According to the L.A. Times, Shannon plays Kim with "a delicious twisted perverseness" and "infuses manic life and libido into the crazy, controlling genius in caftans". We had the pleasure of representing Kim in the negotiations with the film's producers several years ago for the rights to his story. Since we knew that the movie would be based on Cherie Currie's acidic tell-all biography and that every great story needs a villain, we anticipated that Kim's character would be portrayed as a combination of a psycho-Svengali and Fagin. Thus for us the toughest task in the negotiations with the producers of the film was to ensure contractually that the producers, writer and director did not take too much liberty with the characterization of Kim. The producers initially resisted our efforts to place limits on their right to shape the character, but this was deal-breaker for Kim and eventually we were able to strike a compromise that was acceptable to all parties. That's not to say that Michael Shannon's portrayal of Kim doesn't show him to be a tough taskmaster that wrangled a bunch of teenagers to help them achieve their dream at a time when almost anything was ok in the name of achieving success. But The Runaways rocked when women weren't supposed to do that and were a genuine sensation in that gap between the end of the 60s and the coming of the Ramones, Sex Pistols, etc. Thus Kim's characterization in the film may not be flattering by modern standards. But, that is - as they say - entertainment. More to follow when the film opens in San Diego...

For a link to a photo of Kim Fowley, Michael Shannon, and the film's director Floria Sigismondi click here.
For a movie clip where Kim introduces Cherie Curie to Joan Jett click here.

Copyrights: When Does Flattery Become Infringement?

A recent article about an art world dispute raises an interesting problem that has perplexed lawyers, judges, artists, and photographers for years: how much legal protection is to be given to a photograph? The dispute the article describes pushes the boundaries of what has been and continues to be one of the most challenging and controversial issues in copyright law: when does someone go beyond permissible "copying" of an unprotectible idea and cross over into illegal copying of the "expression" of that idea? Lawyers, law students and judges have grappled with this "idea-expression dichotomy" for decades - perhaps longer. The shorthand way I have often tried to explain the idea-expression dichotomy is this: if Shakespeare had been alive at the time the play and subsequent film "West Side Story" were produced, he wouldn't have had a legal claim to stand on. Why? Because although "West Side Story" copied the idea of "Romeo and Juliet", the expressed of that idea in "West Side Story" was new and different.

In this recent case, photographer David Burdeny is accused of duplicating the look and feel of several photographs by Sze Tsung Leong and copying mulitple text descriptions of the photos. [Note: to the best of our knowledge, no law suit has been filed yet; the case currently resides in the "exchange of angry letters" mode].

In terms of photography, typically no one photographer can claim the exclusive right to the idea of taking a documentary style photo of a building or landscape, for example, the Ponto Vecchio in Florence or a pyramid in Eqypt. [To the contrary, of course, if Leong had combined a photo of the pyramid with a waterscape photo such that the pyramid appeared in the water, Burdeny would have a dead-bang loser case if he copied that expression]. Thus if Burdeny was alleged to have "copied" only one of Leong's photographs, I believe Burdeny would have a much cleaner defense. But when you take into account the combination of the number of photographs Burdeny is alleged to have copied plus the written descriptions of the photos, the case for Leong and against Burdeny gets more compelling - at the very least to the extent that a jury might be swayed to believe that Burdeny crossed the line. Frankly, the argument for infringement by Burdeny is much stronger with respect to the descriptions of the photos. Burdeny's descriptions may not be "identical" to Leong's, but they are "substantially similar" - and that's the standard for copyright infringement under U.S. law.

More to follow as the case develops.......

Questions? info@branfman.com or www.branfman.com

Here Comes 2010!

Well, after two shortened work-weeks and corresponding long weekends, the world seems to be slowly getting back to the business at hand. Us too. Having made it through 2009 with relatively few bruises and quite a few bright moments along the way, we are cautiously optimistic about the new year. The first task we'll tackle will be to offer up some predictions about coming developments in the world of intellectual property and entertainment law. Then we will roll out several new services we think our clients will be excited about. In the meantime, if you have any topics in the IP or entertainment law area you would like to hear about, please let us know and we'll do our best to find something interesting to say about them. Onward.

Larry Flynt: Trademark Guru?

In a case that is both interesting and humorous on so many levels, Larry Flynt - the publisher of Hustler magazine - is suing two of his nephews for trademark infringement. The trial started earlier this week in U.S. District Court in Los Angeles. The nephews - Jimmy Jr. and Dustin Flynt - used to work for their uncle, but he fired them in 2007 for being "unproductive". In an effort to show he wasn't an altogether bad fellow, Uncle Larry gave each of the nephews $100,000 as severance money. The nephews then used the money to start an adult film company using the brand name FLYNT that competes with Hustler's adult film company. In what would otherwise be a fairly typical trademark infringement case, Uncle Larry filed suit to stop the nephews from using his name and arguably confusing the public into thinking the nephews' company is somehow associated with Larry Flynt and Hustler. This aspect of the case highlights one of the unique facets of trademark law: trademark laws are designed not just to protect the trademark owner; they are also supposed to protect the public from being confused as to the source of the goods or services sold under the trademark.

Uncle Larry hired an expert to conduct a survey and the survey showed that a majority of consumers presented with images of the nephews' films with the FLYNT name on them associated the nephews' FLYNT films with Uncle Larry. If the jury is persuaded by that evidence, that is going to help Uncle Larry's case. So will the fact that the nephews used the following phrase in their promotional flyers: "You know the name, you know the game". That might convince the jury that the nephews were trying to trade on their uncle's fame. The nephews' lawyer has countered with a good - if slightly tongue-in-cheek - response: consumers of pornographic films are "careful and discerning" when it comes to choosing the films they watch or buy and carefully study the product before making a purchase. Therefore, there is not much of a chance that consumers will be confused or led to think that the nephews' FLYNT films come from the same source as Hustler's films. Although many people find jury duty boring, we suspect that the eight jurors in this case will be able to pay attention during the trial. After all, as Uncle Larry has said in criticizing the films produced by his nephews: "I think there is a thin line. As a society we've come to accept what I like to refer to as 'vanilla sex'. But if you get too trashy, people get uncomfortable". We can hardly think of anyone these days who would be able to speak more authoritatively than the elder Flynt on this subject. Filtering out the subject matter for the moment, from a pure trademark perspective we believe Uncle Larry has a compelling case. More to follow as the trial is scheduled to end next week.

Grammy Nominations - 2010

We are pleased to report that our good friend and client Steve Vaus - professionally known as Buck Howdy - has just been nominated for two (count 'em - two!) Grammy nominations. The nominations were announced last night. The first nomination is for Buck Howdy's "Pete Seeger Tribute - Ageless Kids' Songs" in the Best Musical Album for Children category. The second nomination is for Buck's "Aaaaah! Spookey, Scary Stories & Songs" in the Best Spoken Word Album for Children category. Some artists get multiple nominations for the same song or same album in multiple categories. But it is pretty rare for one artist to get nominated for two separate albums in the same year. Congratulations to Steve!