The year the sound recording was released is key to UMG’s argument.  Prior to February 15, 1972 sound recordings were protected by state law copyright schemes.  All sound recordings released after February 15, 1972 are protected by Federal Copyright Law.

Grooveshark continues to hide under the protection of the DMCA (Digital Millennium Copyright Act) Safe Harbor provision claiming it didn’t know that content uploaded by third parties was infringing and had been uploaded without permission.   I believe the judges’ decision was correct.  If the pre-72 sound recording owners do not receive any of the protections of the Federal Copyright Act such as the ability to recover attorneys’ fees or sue for statutory damages, then why should an infringer receive defensive benefits from the Copyright Act?

Because this decision was issued by the New York State Appellate Court, that court had no obligation to follow a footnote in  Capitol Records, Inc. v. Mp3 Tunes, LLC, 821 F.Supp.2d 627 (S.D.N.Y. 2011) in which the court states in dicta:

This Court agrees with [Mp3 Tunes, LLC] the plain meaning of the statutory language makes the DMCA safe harbors applicable to both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to February 15, 1972.

UMG made a great tactical decision in keeping their pre- and post-72 sound recordings separated in their legal filings.  A state court was the appropriate venue to decide if the DMCA applies to sound recordings that are not otherwise protected by the U.S. Copyright Act.

Qiaodan Sports sells basketball shoes and jerseys with Qiaodan and  #23.  If Jordon wins this case, he will use his proceeds to promote basketball in China.

Blow Dry Bar – Houston

While in LA  I marveled at all the hair salons for blow drying hair.  Who knew these salons were all over Texas.  And, as much as we Texas gals like our hair fixed, it does seem like a natural fit.

Houston, Texas-based Blow Dry Bar, LLC seeks a declaratory judgment of  non-infringement against  Dallas, Texas-based DryBar Holdings, LLC’s trademark and trade dress.  DryBar sent several cease and desist letters to Blow Dry Bar after Blow Dry Bar launched their first location and announced the opening of their second store. DryBar’s founder Alli Webb has been credited by many as creating the “blow dry salon” trend.

The term “blow dry bar”  is descriptive at best and is quickly becoming generic for a hair salon that provides “blow drying.”  A consumer sees blow dry bar and immediately knows the service available.  Perhaps salons should start thinking less descriptive in order to develop a strong and defendable brand.  The case, filed in 2012, is still active with a hearing on a Motion for Summary Judgment scheduled on April 25, 2013.

Blow Dry Bar, LLC v. Drybar Holdings LLC, 4:12-cv-02425 (S.D. Tex – Houston, filed Aug. 8, 2012).

By filing a declaratory judgment action, JCP kept the case in the Eastern District of Texas requiring Aspen Licensing, a Florida entity, to come to JCP’s home court.  According to court documents, Aspen sent several demand letters to JCP and made phone calls threatening litigation if JCP did not make a monetary settlement.

J. C. Penney Corporation, Inc. v. Aspen Licensing International Inc., 4:13-cv-00066-RAS-DDB (E.D. Tex. filed Feb. 8, 2013).

In addition to losing the lawsuit, Frito Lay may be on the hook for costs and attorneys’ fees.  Ralcorp Holdings filed sealed documents related to costs and fees on April 18, 2013.

In the US, Levi Strauss has been using the “red tab” since 1936  on pants/overall pockets.  In the US the “red tab” federal trademark registrations from 1936 do not mention the word “LEVI’S” on the tab.  The concern raised in the recent dispute with German company Colloseum Holdings was that Levi Strauss does not offer jeans in the EU with only a “Red Tab.”  The tab always includes the word “LEVI’S.”

Research Group 3, Inc., known by its brand and common law trademark RG3, may oppose the trademark application filed by football star Robert Griffin III for the mark RGIII for clothing items.

Research Group 3, a motorcycle parts company, claims in its trademark application use of the mark RG3 for clothing items since 1999.  But, Research Group 3 only filed a trademark application in January 2013, months after Robert Griffin III filed his application.

We should know next week if the parties worked something out or if an opposition will proceed with the Trademark Trial and Appeals Board.

The fastest growing area of consumer consumption of music is streaming.  See BBC News, “Streaming music revenues up 40% globally in 2012,” Aug. 15, 2012. 

Revenues from music subscription services and streaming services collectively went from just 3% of total industry revenues in 2007 to 15% in 2012, totaling over $1 billion for the year.  Distributions for digital performance royalties from SoundExchange, which include payments to performers and copyright holders for webcasting, satellite radio, and other non-interactive digital music services, increased 58% to $462 million in 2012.

Pandora and IHeartRadio are the two leading internet radio services in the US.  According to reports by Triton Digital, in May 2012 Pandora held 74.2 percent of the daytime internet radio services to IHeartRadio’s 13.6 percent.  See Glenn Peoples, BILLBOARD, The Next Digital Battleground, Vol 124, No. 25, at p. 22.  Because internet radio is not interactive, meaning the user cannot choose the track or artist they wish to hear, license fees for use of the sound recording are pre-determined and are paid by the internet radio stations to Sound Exchange as a digital performance royalty.

Pandora continues to lobby in support of the Internet Radio Fairness Act, a bill that would change the standard by which the Copyright Royalty Board sets the statutory rate for the digital performance of sound recordings.  In effect, Pandora wants to reduce payments to Sound Exchange which directly decreases royalties paid to artists, musicians, and sound recording copyright owners.

In November 2012 Pandora sued ASCAP, the largest of three Performance Rights Organizations in the United States, to lower Pandora’s rate for public performance royalties paid to music publishers and songwriters each time a song is streamed.

Internet radio and streaming services are clearly part of the future of the music business.  Should copyright owners, artists and songwriters continue to see a decrease in royalties when these businesses thrive?

Join attorney/mediator Tamera Bennett at the Belo Mansion at Noon on Wednesday, March 27, 2013 for a discussion on common issues band members mediate when a member departs and/or the band dissolves.

We’ll be taking a look at the “Sugarland” partnership dispute, the recent “En Vogue” dispute, as well as the “J Geils Band” dispute and applying those fact patterns to structuring a successful mediation for your client.

Dallas Bar Association
Belo Mansion
2101 Ross Avenue
Dallas, Texas 75201
214-220-7400

SATURDAY, MARCH 9TH at 35 Denton
3:00 PM – 4:30 PM (UNT on the Square)

Will Play for Tips: 5 Legal Tips for Musicians/Artists/Songwriters