Music Attorney Tamera H. Bennett To Speak On Music Piracy Panel

posted November 6, 2009

Texas based music lawyer Tamera H. Bennett will join music industry veterans, James Griffen, Kim Guggenheim, Jim Hillegass, Andrew Schuon, and Owen J. Sloane, Jr. , in Beverly Hills on November 19 to discuss “The Music Industry’s Response to Piracy:  Intervention or Innovation.”

Songwriters/Music Publishers Make Forbes Top-Earning Dead Celebrities

FORBES Magazine released their annual report on Top-Earning Celebrity Estates last week.

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.

John Lennon placed seventh with $15 million.

Jimi Hendrix was 12th with $8 million.

5 Steps to Social Networking: Louellen Coker and Tamera Bennett

by Tamera H. Bennett
Posted October 26, 2009

“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.

You can find Louellen on Twitter, Facebook, Linkedin, Slideshare.

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.

You can find Tamera on Twitter, Facebook, Linkedin, MySpace, Podcast, JDSupra.

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.

No Attorneys’ Fees: Defendants In Bridgeport Sampling Case

by Tamera H. Bennett
Posted October 23, 2009

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 Bridgeport cases 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.   Compare Cadkin v. Loose, 569 F.3d 1142 (9^th 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.

Take a look at what William Patry had to say about this case in March 2008.

The “Bridgeport Cases” have raised a lot of comments over the years.  Read more here from Tech Dirt in 2007, here from the LA Times in 2001, here from MSNBC in 2004 citing Billboard.

Lawyer Tamera H. Bennett on FaceBook

Come “Fan” us over at FaceBook.  Here’s a taste of our posts….

Bennett Law Office, PC/Tamera H. Bennett

Grammy DFW Professional Dev. and Mixer

Up Close & Personal with Richard Perna Music Publishing Essentials: An Insight Into Copyright, Licensing, Royalty Collections, & Marketing

Time:5:00PM Wednesday, October 14th

Location:The Loft, 1135 S Lamar St. Dallas, Texas 75215 http://www.theloftdallas.com/directions.php

about an hour ago · RSVP to this event

Bennett Law Office, PC/Tamera H. Bennett The Soundtrack Album is back. Twilght, 90210, Greys Anatomy ….

‘90210′: It’s a scene on Soundtrack 90210 (with a sneak preview from the album) | Show Tracker | Los

Source: latimesblogs.latimes.com

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…

about an hour ago

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.

Instead of Retiring, Carly Simon Is Suing Her Label – NYTimes.com

Source: www.nytimes.com

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.

about an hour ago

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.

Paul Anka Strikes Deal With Michael Jackson’s Estate Over “This Is It” Rights : Rolling Stone : Rock

Source: www.rollingstone.com

Up to the minute breaking news from the world of music, from the editors of Rolling Stone.

about an hour ago

Making Money, Making Movies October 23 Dallas

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

The Recording Academy Texas Chapter Presents: Music Publishing Essentials

Entertainment Law Update Podcast with Tamera Bennett and Gordon Firemark

by Tamera H. Bennett

Thanks again to lawyer Gordon Firmark for including me as the co-host on the Entertainment Law Update Podcast.  Episode 5 is available here.

We discussed hot legal topics including the following:

Launchcast

Jessica Seinfeld

Annie Leibovitz

The Ellen Degeneres Show

Allman Brothers Lawsuit Against UMG Proceeds

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.

Read more from The Hollywood Reporter blog.

Updates from Tamera Bennett Twitter Feed

Here are a few things I’ve been Tweeting about today.  Please follow me on Twitter.   www.twitter.com/tamerabennett

WSJ LAW BLOG Legal Liberals Ponder How Best to Lose: Since Justice Sandra Day O’Connor’s departure, .. http://bit.ly/lrTUY

CREATEPROTECT Producers of The Ellen DeGeneres Show Sued For Copyright Infringement http://bit.ly/4a6VRd

Time Warner Sued for Copyright Infringement. Unlicensed song masters in The Ellen Degeneres Show. http://bit.ly/pAZKn

A&E Sued for Copyright Infringement of “Rocky Top” http://bit.ly/7ClvS

WSJ LAW BLOG Russian Libel Case Ballooning Into Referendum on Stalin: An article in the Christian Sc.. http://bit.ly/o1sJM

How music became an industry: on ‘Selling Sounds’ – Los Angeles Times: How music became an industry: on ‘Sel.. http://bit.ly/4DaNHD

Producers of The Ellen DeGeneres Show Sued For Copyright Infringement

By Tamera Bennett

If you have ever watched The Ellen DeGeneres Show you know how integral music is to her programming.  She loves to dance.  According to court pleadings the production company has used over 1000 sound recordings without payment of the appropriate master use synchronization fee.

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.

Bud Battle Continues in Czech Court

by Tamera H. Bennett

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.

Read more here and here.

“Woodstock” At Lewisville “Texas International Pop Festival”

by Tamera H. Bennett

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).

Read this great article and this great article in the Dallas Morning News.

Go to the official event website to learn more and view the event program, see more photos, and learn about the book that is in the works.

James Polser, mentioned in the Dallas Morning News article as working security at the event, runs the historic Lewisville Feed Mill that is located a

Lewisville Feed Mill

half-block from my office in Old Town Lewisville.  Read here for the history of Lewisville, Texas.

So, yes we are hip in Lewisville, just maybe not so many hippies anymore.  Hope you enjoyed this tid-bit of Texas History.

Update: Our local Dallas ABC affiliate featured the Texas International Pop Festival today.  Click here to watch a video of the story.

Protecting Twitter with T(w)ademark

by Tamera Bennett

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, Oz Fight Acai Berry False Endorsements

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.”

“”Plaintiffs seek to stop the unauthorized and unlawful use of Dr. Oz’s and Ms. Winfrey’s names, pictures, voices and identities,” the lawsuit said.  The infringing products include dietary supplements, colon cleansers, anti-wrinkle creams and tooth-whiting products, according to the complaint.”

“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.”

Entertainment Law Update Podcast 3 and 4

by Tamera H. Bennett

Ready for your monthly dose of all things entertainment law?  Talk about speed reading … this is speed listening.  Each episode is a great hour of the latest news impacting entertainment lawyers and their clients.

As always, thank you to attorney Gordon Firemark for allowing me to co-host the program.

Episode 4 Topics Include:
Copyright Office Regulation Changes
Updates on J.D. Salinger Copyright Dispute
Joel Tenenbaum Admits to File Sharing
Prevailing Party and Purposeful Availment  in 9th Circuit
Reebok Endorsement
Erin Andrews Photo
College Athletes’ Right of Publicity
The Pope’s View on Intellectual Property Laws
The Wall Street Bull Case and The Little Mermaid Case
Copyright Issues in the Obama Poster
Lego Brand v. Spinal Tap

Episode 3 Topics Include:
Copyright Office Fee Increase and BackLog
Web Radio Settlement
ASCAP: Is A Cell Phone Ring A Public Performance
Jammie Thomas – Rassett loses file sharing suit brought by RIAA
JD Salinger prevents publication of new book
Google Class Action Update
Joel Tenenbaum Continued RIAA Litigation
Fair Use Update
Canned Music In The Theatre
Protecting The Chocolate Lindt Bunny
Special Guest Spot on Defamation Issues with Adrianos Fachetti.

Dallas Arts Advocacy Day August 20

The Cultural Affairs Commission of the City of Dallas and the Dallas Area Cultural Advocacy Coalition will be hosting Dallas Arts Advocacy Day on August 20th.

Arts Advocacy Day is an opportunity for everyone interested in the arts to learn more about new media marketing and the economic impact of the arts.  The featured speaker is Douglas C. Sonntag, Director of Dance, National Endowment for the Arts.

More information is available online at:  http://www.dallasneedsthearts.com/

Register online here.

Advance registration is required.  The cost for Advocacy Day is $35 and includes lunch and all seminar material.

Grammy DFW Music Maker’s Mixer August 16

Come join music industry professionals from the Dallas/Fort Worth Metroplex on August 16 for the kick-off of the Fall ‘09 Grammy DFW Music Maker’s Mixers.

CLICK HERE TO RSVP

Cuban Trademarks Sold To Pay Wrongful Death?

by Tamera H. Bennett
posted August 5, 2009

The Miami Dade Hearld reported last week that attorneys’ representing relatives of the late Bobby Fuller, who won a $100 million wrongful-death judgment against the Cuban government, are requesting the court order the sale of U.S. Trademark Registrations owned by the Cuban Government.

Talk about political mumbu-jumba as to whether or not the heirs could force this to occur and how a valuation would be determined for US rights only for each of the brands mentioned:  Cohiba, Esplendidos, La Perla, Havana Club,  ETECSA.

The Miami Dade Hearld article does a great job of spelling things out. Also take a look at what IPKat has to say in this post.

Co-Branding The Band

by Tamera H. Bennett
August 5, 2009

With physical record sales continuing to plummet, recording artists and record labels look for creative ways to co-brand their product.

Mariah Carey and her label Def Jam have partnered with ELLE magazine to release a 34-page booklet packaged with her “Imperfect Angel” CD release that includes “lifestyle” advertisements, lyrics and content from Ms. Carey.

Additionally, an upcoming issue of ELLE will include a scaled down version of the insert.  “Lifestyle” advertisers, such as Elizabeth Arden fragrances, are also co-branding the CD with a new fragrance release.

Read more from Billboard.biz.

Read more from Rolling Stone.