In 2008 I blogged  here and here stating so long as a campaign secures the necessary public performance license, a song can be played at campaign events without any permission from the artist, songwriter or music publisher.  If Mr. Gingrich would like to incorporate the song into a video or advertisement, then his team would need to secure a master use license from the record label and a synchronization license from the music publisher.

Third Side Music is the Canadian music publisher that controls the rights to the song.  The public performance rights for the song “How You Like Me Know” are most likely administered by SOCAN.

The video, released by Paul advocates and not approved or authorized by Paul, makes personal attacks against fellow Republican presidential nominee Jon Huntsman.  With Hunstman dropping out of the race, it’s unlikely Paul’s camp will pursue this litigation much further against defendants they have so far been unable to identify.

The Justices that dissented in the 6 to 2 decision expressed concern that upholding the pertinent section of the URAA denies the right of freedom expression and curtails the incentive to create new works.

Read more from the SCOTUS Blog.

Read more from The New York Times.

I would like to give a personal shout-out and thank you to Gordon for bringing me on board for this great podcast.  I am looking forward to an amazing 2012 for the podcast and can’t wait to see who might be making a surprise visit as guest co-host!

After losing a battle in 2005 to have Jimi Hendrix’s right of publicity protected by New York state law, where Hendrix lived at his death, Hendrix’s heirs worked to amend the Washington state right of publicity law.  Hendrix’s heirs sued under the newly amended law. In 2011 a trial judge held Washington’s Personality Rights Act, that allowed anyone to sue in Washington to enforce their rights regardless of where the lived when they died, was unconstitutional.  The trial court’s decision has been appealed to the Ninth Circuit.

This year an Indiana court ruled that Indiana’s post-death right of publicity law cannot be applied retroactively.  The court ruled John Dillenger’s heirs have no claim to Dillenger’s name and likeness because Dillenger died before Indiana had a posthumous right of publicity.

A California  district judge’s decision ruling Marilyn Monroe was a resident of New York at her death is on appeal to the Ninth Circuit.  If upheld, Monroe’s post-death right of publicity would not be protected by changes to the California right of publicity statute which granted retroactive protection to famous California residents who died before 1985.  See Milton H. Greene Archives, Inc v. Marilyn Monroe LLC, 08-56471 (9th Cir. filed 2008).

George Clinton v. Universal Music Group Highlights Time Limits On Royalty Claims, BILLBOARD, Sept. 29, 2011.

by Tamera H. Bennett

Judging from pioneering funk productions helmed by Parliament-Funkadelic mastermind George Clinton, the man knows the value of staying on the beat and keeping time.

But the apparent failure of Clinton to keep an eye on the clock could cost him dearly in terms of royalties he claims he’s still owed. The decision highlights one of the challenges facing heritage artists and their heirs in navigating claims for underpayment of digital downloads and possibly other new media uses of their copyrights. In addition to keeping track of royalties due to them (which can require costly audits), artists must also be aware of how long they have to raise objections to the size of the payments they receive.

In 1980, Clinton signed a production agreement with Casablanca Records, which is now owned by Universal Music Group. UMG claims that it couldn’t reach Clinton for years and that it was unable to send him royalty statements. Once Clinton re-surfaced in 2001, UMG sent back royalty statements and payments to Clinton for the years 1996 to 2000.

But Clinton sued UMG in 2007 for breach of contract, claiming that the label group didn’t pay him all the royalties he was due from 2000 to 2003. His production contract required Clinton to provide detailed and specific objections to his royalty statements and he complied — almost. Clinton outlined under-payments, non-payments and improper withholding of taxes.  What Clinton never specified was that he had been underpaid for royalties stemming from digital downloads.

Then earlier this year, Clinton amended his lawsuit claiming for the first time that UMG had not paid him the correct royalty rate for digital downloads, citing a 2010 decision by the U.S. Court of Appeals for the Ninth Circuit in F.B.T. Productions, LLC v. Aftermath Records. In the F.B.T. case, the court held that in certain contractual situations digital downloads are a license and as such the record label must pay a higher royalty rate to the artist.

Clinton had the right under his production agreement to review and audit royalty statements to determine if UMG had properly paid him. Clinton also had the right to sue UMG if it failed to do so.

But both of these rights had a time limit — three years after the date a royalty statement was “rendered” to Clinton. It is very common in recording agreements for there to be a time limit on bringing a lawsuit, a period of time which is usually shorter than the statute of limitations stipulated in state or federal law.

Three years seems like a pretty easy way to calculate a deadline. Indeed, in 2003, Clinton and UMG agreed to a “tolling” agreement that effectively froze time so the three-year window within which Clinton had to file a lawsuit for the statements rendered in 2000 and later would not run out.

But on Aug. 9,  U.S. District Court Judge Philip S. Gutierrez ruled that the clock had started running three years from the time Clinton should have received his royalty statement. If Clinton didn’t receive his royalty statement, his 1980 contract placed the responsibility on Clinton to tell UMG in writing that he never got his statement. Clinton’s four-year absence cost him the ability to sue UMG for potential accounting errors over multiple years.

In his ruling, Gutierrez made it clear that Clinton failed to specifically object to the underpayment of digital download royalties in a timely manner. Because Clinton didn’t comply with the requirements in his recording contract, he lost the opportunity to challenge UMG on years of royalty statements specifically related to digital downloads.

At the end of October, Gutierrez will determine whether Clinton v UMG will go to trial on the question of whether the tolling agreement was valid. The district judge ruled that it wasn’t valid, but an appeals court reviewed the decision and sent the question back to Gutierrez.

If the tolling agreement is valid — that is, if Clinton’s suit against UMG is deemed to have been filed within the required time frame, then Gutierrez will rule on Clinton’s claims that UMG failed to pay him royalties due to him, excluding those for digital downloads. This is a significant concern for any label or artist. Even though there is no binding court decision in Clinton v. UMG on this issue, it has become imperative to include language that references the freezing of all statutory limitations periods as well as contractual limitations periods.

The possibility that the tolling agreement could be declared invalid has prompted Clinton to sue his now-former lawyers for legal malpractice.
Tamera H. Bennett is an entertainment and intellectual property attorney based in Lewisville, Texas.

News reports say Ortega’s campaign  is using a Spanish language version of the classic song “Stand By Me” in political ads.  Sony/ATV, the copyright owner of the song,  forwarded a ceases and desist letter to Ortega.  I am assuming Sony/ATV is asserting no synchronization license was granted to use the song.

Read more about John McCain’s, Sarah Palin’s, Chuck Devore’s, and Nicolas Sarkozy‘s legal disputes over use of music related to a political campaign.

The supporters of repealing the code section made the following comments in legislative hearings:

It is inefficient and unnecessary to continue the state licensing of talent agencies ….. The number of licensees … is so small that there is no benefit to the consumer to continue regulation by TDLR. The Deceptive Trade Practices Act would provide sufficient protections to consumers who could be harmed ….

Talent agencies originally were regulated to protect actors from fraudulent agents. However, there is widespread activity by unregulated parties that offer similar services, and the regulations are easily circumvented, rendering them ineffective.

Those that wished to keep the regulation in place stated:

Regulation of talent agencies originally was enacted to ensure that actors were not swindled by talent agents who would take money in exchange for future services and then disappear and also to protect legitimate talent agencies. If there is widespread activity by unregulated parties, the bill should address better regulation, instead of removing it completely.

The Texas Talent Agencies Act only regulated securing business for models and actors.  It did not regulate the securing of gigs for musicians.

]]> http://ipandentertainmentlaw.wordpress.com/2011/08/31/texas-no-longer-regulates-talent-agencies/feed/ 0 ipandentertainmentlaw http://ipandentertainmentlaw.wordpress.com/2011/08/18/bananas-for-copyright-law-who-owns-pictures-snapped-by-monkeys/ http://ipandentertainmentlaw.wordpress.com/2011/08/18/bananas-for-copyright-law-who-owns-pictures-snapped-by-monkeys/#comments Fri, 19 Aug 2011 01:58:36 +0000 ipandentertainmentlaw http://ipandentertainmentlaw.wordpress.com/?p=2052 ]]> Did you know that US Copyright Law and British Copyright Law do not grant copyright protection to works that “are not originated by humans?”  Hum, what does that really mean?  It might just mean that the photographs taken by a clever macaque monkey after it commandeered  the human photographer’s camera are in the public domain.

This post from Tech Dirt raises the issue of copyright ownership in the photos and raised the fur of the Carter’s News Agency who claim they now control the images.  The comments to the Tech Dirt post, and the serious (sometimes seriously funny) comments of Gordon Firemark and Tamera Bennett in Episode 23 of the Entertainment Law Podcast provide some food for thought on this issue.

Pursuant to section 203 of the 1976 Copyright Act authors (or certain heirs) may terminate  copyright assignments and reclaim copyrights 35 years after the work is first published.  There are strict statutory guidelines that must be followed and they are outlined in more detail in the article here.

The music publishers that own the songs made famous by The Village People have asked a judge to find the songs were created by Willis as “works for hire.”  Under the Copyright Act works created as “works for hire” are not subject to the termination provision because the employer, in this case the music publisher, would by law be deemed the author of the work.  But, songs are not specifically enumerated as a category of “works for hire,” so the music publishers would be required to prove that Willis was their employee in order for this argument to fly.

While the article from The Hollywood Reporter Esq. blog and The New York Times lay out the facts and the basics on termination law, they do not mention what might be the music publisher’s best argument to defeat the claim:  17 USC § 203(A)(1) requires that when a work, in this fact pattern a song, has more than one author, a termination of the grant may be effected by a majority of the authors who executed the original agreement conveying the rights to the copyright.  “Y.M.C.A” has four songwriters.  Three of the four songwriters must properly serve notice on the music publisher to meet the first hurdle in even attempting to terminate the grant. While the other co-writers may have filed their termination notices, this fact does not seem to be surfacing in the news reports.

Music lawyer Tamera Bennett and film lawyer Gordon Firemark discuss this case in detail in Episode 23 of the Entertainment Law Update Podcast.