In January 2008 I blogged about a pending copyright infringement lawsuit over certain master recordings owned by Esntion and allegedly infringed by Jonestm.
Judge Lindsay, in the Northern District of Texas (Dallas), issued an order on November 13, 2009 dismissing the claims for copyright infringement and trademark infringement WITHOUT PREJUDICE for lack of subject matter jurisdiction.
A residual issue facing the Plaintiff in this case is the pending 25 page motion by Defendant for Plaintiff to pay Defendant’s attorney’s fees.
I’ve blogged recently here regarding whether or not attorney’s fees are appropriate in copyright infringement cases pending the case being dismissed WITH or WITHOUT prejudice.
In the Bridgeport case referenced in the link out, the Magistrate determined both parties were responsible for the case dragging out. In Esntion, Plaintiff’s response to Defendant’s motion for attorney’s fee is due in January 2010. This will be an interesting case to follow as attorney’s fees and “prevailing party” status is a trending topic in copyright infringement cases.
I enjoyed participating in the Music Piracy panel sponsored by InternationalESQ and Variety Magazine in Beverly Hills.
Reporter Ted Johnson put together a great article summarizing the presentation with quotes from Peter Asher, John Parres, Owen Sloane, Andy Schuon, Tamera Bennett, Kim Guggenheim and Glenn Litwak.
I was somewhat surprised that the majority of my co-panelists, both from the tech industry and music industry, felt that anti-piracy education was ineffective in deterring music piracy.
After talking with panelists and attendees following the event, I believe the real distinction is between education and enforcement. The RIAA’s actions in suing end-users was an unsuccessful campaign in stopping piracy. The RIAA claims it was successful as an education tool because “Awareness of the illegality of downloading without permission surged from 35 – 72 percent” during the end-user lawsuit campaign. Most in the industry, and consumers of music, would probably argue that enforcement is an not an effective method of education.
I guess I look at things at the most basic level. I understand education will not stop music piracy. Yet, it is a valuable tool in the tool box that should not be overlooked.
Both the software industry and the movie industry have embraced anti-piracy education. The Software Information Industry Association (SIIA) has re-worked and “spoofed” their own 1980’s video on anti-piracy with the new 2009 “Don’t Copy That 2.” For the last few years, the Motion Picture Association of America in conjunction with Students In Free Enterprise has sponsored a national college campaign for submissions of anti-piracy videos.
As I stated above, education is not the solution to stopping illegal downloads — it is part of the tool box. There is a certain level of music piracy that will always exisit as a “cost of doing business.” The industry is on the right path of meeting consumers’ demads for music that is portable between devices and easy to access. Consumers want an experience and connection with their favorite music and recording artists. Labels and artists are beginning to deliver that much demanded “digital” consumer experience. Deliverying the consumer experience is the most powerful tool in the tool box.
Once again, my thanks to entertainment attorney Gordon Firemark for asking me to co-host the Entertainment Law Update Podcast. Episode 6 is available for downloading here. Make sure to take a look at the show notes, which I have summarized below.
Noonan v. Staples - Jury: Truthful E-Mail Sent About Fired Staples Manager Wasn’t Libelous
Disney settles with Luxo over the Luxo Jr. Lamp
Carly Simon is suing her record label & starbucks over poor marketing of record
FTC New Guidelines For Bloggers
Vent v. Mars Snackfood U.S., LLC — idea submission case in New Jersey
The Weinstein Co. v. Smokewood Entertainment: Decision reached in “Push” case regarding writing required to transfer exclusive rights.
Jon Gosselin has countersued TLC
California’s new anti-paparazzi statute
Beatles music catalog finally available online.. but is it legal?
Radio Station liable for wrongful death of contestant
ASCAP lost Public Performance lawsuit on ringtunes; ASCAP and BMI may bring case for Public Performance in film/tv downloads
Copyright Termination of Transfers under §203 and §304.
Celebrity Identity Theft with guest Samantha Rothaus.
Does a pair of plastic slip on shoes purchased for $29.99 bring to mind a luxury automobile priced at $51,000? Me neither. But, did you know Porsche is in the shoe business? Me Neither.
The parent company for the Porsche auto-maker sued the maker of the slip on shoes in Germany in July 2009 to stop the distribution of the “Cayman” style Croc. Without reading the complaint, we will assume the equivalent of a “likelihood of consumer confusion” and/or dilution of the Porsche Cayman mark were the causes of action.
In the United States, Porsche does have a registration for “Cayman” in trademark international class 025 for numerous clothing items and it specifically includes FOOTWEAR. The application, registration number 3602568, was issued on April 7, 2009. That date ties in to why a cease and desist letter would have been sent in May. The US registration is based upon Foreign Priority Community Trademark registration with Germany listed as the Country of origin.
Porsche offers a line of “driving shoes.” I have not been able to locate a picture of the “Cayman” brand shoe.
Broadway songwriting duo Richard Rodgers & Oscar Hammerstein II placed second on Forbes‘ list with $235 million in earnings. The bulk of their $235 million in combined earnings came from the sale of The Rodgers & Hammerstein Organization and the rights to music they wrote together. See my post here about the music publishing catalog purchase.
Debuting on the list in third place is musician Michael Jackson. In the four months since his untimely death, the King of Pop’s estate has brought in $90 million. A bulk of this income is related to earnings for the much anticipated “This Is It” show.
Elvis Presley placed fourth with $55 million in earnings. The Presley Estate topped the list in 2008 with earnings of $52 million.
“You Can Social Network: Five Easy Steps to Social Networking” Topic of Speakers Lawyer Tamera Bennett and Technical Writer Louellen Coker at WBODC’s November 2009 Luncheon, Tuesday, November 3rd
Women Business Owners of Denton County will hold its monthly luncheon on Tuesday, November 3rd, at Oakmont Country Club, Corinth, Texas. ” You Can Social Network: Five Easy Steps to Social Networking” will be the topic of speakers Tamera Bennett and Louellen Coker.
WBODC members Tamera Bennett and Louellen Coker will demonstrate how easy it is to dive into social networking. While they create a blogging platform for one member, they will discuss which networking platforms you should use, the difference between each platform, why and how you should use each platform, best practices in social networking, and the impact social networking can have on your business. While their presentation will focus on getting started in social networking, Tamera and Louellen will provide insights for social networkers at all levels of expertise.
Louellen Coker, President of Content Solutions, holds a Master of Arts degree in Technical Communication from the University of North Texas and a Bachelor of Arts degree from Baylor University. She has conducted several conference presentations, published several articles, and occasionally teaches technical communication at the college level. An active council member and former president of the Lone Star Community of the Society for Technical Communication, she has served as the President of the Women Business Owners of Denton County in both 2008 and 2009, and also serves as the Public Relations chairperson on the Family Resource Center of North Texas Board of Directors.
Tamera Bennett is a Trademark, Copyright and Entertainment Lawyer whose practice is located in Lewisville, Texas. Her clients range from rock star to leadership coach and financial guru to custom motorcycle designer. A licensed attorney in Texas and Tennessee, Tamera assists clients across Texas and in Nashville, Tennessee. She received her law degree from Texas Wesleyan University School of Law and her undergraduate degree in Recording Industry Studies from Middle Tennessee State University. Tamera was named a “2006 Best Lawyer in Dallas Under 40” by D Magazine.
Registration and networking begins at 11:30, with a luncheon and speaker to follow, 12 noon-1:00 p.m. Register online at www.wbodc.org by Thursday, October 29, 2009. With timely reservations, the luncheon and program cost is $15 for WBODC members and $20 for guests. After October 29th, the cost is $20 for WBODC members and $25 for guests.
The Women Business Owners of Denton County is a non-profit organization established to strengthen women owned businesses economically, socially, and politically via energizing and expanding its members’ centers of influence. Our vision is to create productive, interactive groups of business people.
The Sixth Circuit Court of Appeals affirmed the district court’s denial of the defendants’ request that attorney fees be imposed as a condition of granting plaintiffs’ motions to voluntarily dismiss WITHOUT prejudice twenty cases of copyright infringement stemming from master use and music publishing sampling. (Bridgeport Music, Inc. v. Universal-MCA Music Publishing, Inc. , Cause Nos: 08-5254/55/56/57/58/59/60/61/62/63/64/65/66/67/68/69/70/71/72/73 (6th Cir. October 212, 2009).
The “Bridgeport Case” has been on-going since May 2001. The claims involved in this appeal were originally asserted in a single action by two record labels and two music publishers against approximately 800 defendants relating to the use of samples in new rap recordings. The appellate decision linked above gives a great summary of the history behind the case.
At some point in the litigation process, evidence was uncovered that a good number of Bridgeport’s claims would probably not prevail. Even though the Defendants wanted out of the case, the Defendants would not agree to a voluntary dismissal because the court had ruled in other Bridgeportcases that a voluntary dismissal WITH prejudice would not establish prevailing-defendant status for the purpose of seeking attorney fees. See 17 U.S.C. § 505. CompareCadkin v. Loose, 569 F.3d 1142 (9th Cir. 2009). The Ninth Circuit held a voluntary dismissal WITHOUT prejudice does not confer prevailing party status.)
["With-Prejudice" means the plaintiff has dismissed all claims brought in the lawsuit and cannot bring those claims against the defendant in the future. "Without-Prejudice" means the plaintiff, unless barred for other reasons, could file another lawsuit bringing the same claims.]
The Magistrate Judge summed it up: All parties were responsible for the case taking years to litigate, and even if it looked pretty good that the Defendants would prevail, that was mere speculation. The cases were dismissed WITHOUT prejudice and no attorneys’ fees were awarded to the Defendants.
Remember that awesome opening scene in this season’s premiere of “90210”? It was the music that made that scene for me. Iconic, retro, youthful – everything you’re supposed to feel as the gals stripped to their bathing suits and jumped…
Bennett Law Office, PC/Tamera H. Bennett Singer Songwriter Carly Simon Sues Starbucks alleging “concealment of material facts,” “tortious interference” with contract, and “unlawful, unfair and fraudulent business
practices.” All because album sales were lower than anticipated.
Broken trust, men misbehaving, women trying to recover these sound like themes from a Carly Simon song. But this time Ms. Simon was telling a story about her most recent record.
Bennett Law Office, PC/Tamera H. Bennett Paul Anka Gets Credit For Song Co-Written With Michael Jackson. Anka is co-writer of song and owns music publishing interest.
The Dallas Bar Association Sports and Entertainment Law Section will host its annual “Entertainment Law Bootcamp” on Friday, October 23, 2009 at Poor David’s Pub.
This year’s focus is film, from script acquisition to distribution.
Pre-Register by October 16, 2009 by sending a check payable to: Dallas Bar Association Sports and Entertainment Law Section to:
Marc Taubenfeld
McGuire, Craddock & Strother, PC
500 N Akard St Sutie 3550
Dallas, TX 75201
A New York federal judge denied Universal Music’s motion to dismiss and will allow the Allman Brothers lawsuit over under-payment of digital download royalties proceed to trial.
Several licenses and royalty streams are involved when music is played (live or recorded) on a TV show. The broadcasters/TV networks typically hold a blanket public performance license to pay the songwriters and publishers for the performance of the music. Two other licenses are typically also required: a musical composition synchronization license and a master use synchronization license.
In the case of the Ellen DeGeneres Show, the production company failed to secure the master use synchronization licenses. This is the license granted by the record label when a recording is played, not when there is a live performance by the band/artist. The fees for such a “master use” is typically the same amount that would be paid to the publisher/songwriter for the musical composition synchronization rights.
The NY Post article outlines the wrangling between the various record labels and Warner Bros. Entertainment (the show’s producer) to resolve the issue and collect the back-payments of royalties.
The case was filed September 9, 2009 in Nashville in the Middle District of Tennessee. 3:09-cv-00827 Arista Music v. Time Warner, Inc. Read the complaint here.
I have posted here, here and here regarding the ongoing trademark battle between Czech state-owned brewery Budejovicky Budvar and U.S based Anheuser-Busch (which was bought out by InBev).
The ruling by the EU European Court of Justice sent the case back to the Austrian Court to determine what type of protection the Budvar “Bud” mark covers. The national trademark laws of Austria only extends protection to cover the product of “beer.” If Budvar is looking for broader protection of the brewing process/taste, then EU law controls and protection may not be available.
The decision may open the door for AB InBev to import beer into Austria.
Labor Day weekend marks the 40th anniversary of the “Texas International Pop Festival” held just a few miles south of my office at the old speedway.
Over 100,000 folks were “Lewd in Lewisville” listening to artists including B.B. King, Canned Heat, Chicago Transit Authority, Freddie King, James Cotton, Janis Joplin, Johnny Winter, Led Zeppelin, Nazz, Sam and Dave, Santana, Slay and the Family Stone, Spirit, Ten Years After and Tony Joe White.
Impromptu concerts rocked all night at the campground at Lewisville Lake. (Just a mile north of my office).
The news has been a twitter about Twitter®, the social networking site, filing a trademark application for the word TWEET, and the current status of the application being suspended pending the outcome of prior filed third-party trademark applications that contain the term “tweet.”
In researching this issue I found something that should be of a little more interest to the folks at Twitter. Take a look at the trademark below for TWEETPHOTO. Does it look familiar to you? Would you think this brand and the services offered are associated with Twitter?
Compare to the Twitter trademark:
There is a registered trademark for the word TWITTER without design owned by Twitter, Inc. Twitter, Inc. has a pending trademark application for the stylized version above in black and white. A black and white registration extends to protect a trademark used in color.
The TWEETPHOTO trademark application has been initially refused as descriptive of the services offered under the mark: Providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs.
In the initial refusal (office action) the trademark examiner stated: The relevant definition of ‘tweet’ is “[a]n entry posted on the microblogging service Twitter.” [.] The relevant definition of ‘photo’ is “photograph.” [.] Thus, the term ‘tweetphoto’ means an entry posted on Twitter to which a photograph is attached.
Two points to ponder:
1. Does TWITTER have an actionable claim against TWEETPHOTO, not because of the word “tweet” but because of the look and feel (unfair competition claim) of the TWEETPHOTO mark?
2. Has a trademark examiner just made a ruling that TWEET is generic as related to the services offered by Twitter?
Oprah Winfrey and Dr. Memhet Oz do not endorse all those açaí berry products on the market that include their name and/or likeness.
Winfrey and Oz, through their business entities, filed a lawsuit against 40 companies for false association and misrepresentation. The case styled as Oz. v. FWM Laboratories, Inc. 1:09-cv-07297-DAB; was filed in the Southern District of New York, on August 19, 2009. The Complaint is not online for downloading.
Other news outlets have reported: “These defendants are willfully capitalizing on plaintiffs’ valuable reputation and intellectual property rights to lure consumers into ordering their infringing products on the false premise that they have been tested or recommended by Ms. Winfrey and/or Dr. Oz when they have not.”
“Harpo has reported that more than 2,000 consumer fraud complaints related to açaí-berry-related products have been sent to Winfrey’s website. Harpo provided many of those complaints to Illinois Attorney General Lisa Madigian, who filed suit against three dietary supplement suppliers.”
Does a pair of plastic slip on shoes purchased for $29.99 bring to mind a luxury automobile priced at $51,000? Me neither. But, did you know Porsche is in the shoe business? Me Neither.
FORBES Magazine released
between Czech state-owned brewery Budejovicky Budvar and U.S based Anheuser-Busch (which was bought out by InBev).
Pop Festival” held just a few miles south of my office at the old speedway.
