Tag Archives: Texas

Will Play for Tips: Legal Tips for Musicians/Artists/Songwriters at 35 Denton

208015_356082524466629_644788678_nSATURDAY, 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

Join the Dallas Bar Association Sports & Entertainment Law Section for a panel presentation on March 9 from 3:00 PM – 4:30 PM at UNT on the Square, 109 N. Elm St. Denton, TX 76201.This introduction to legal issues in the music business panel will help you answer questions such as Who owns my song? Do I need a lawyer? How do I protect my brand? That’s “fair use,” right? and Can’t we all just get along? Join us for a discussion covering copyright law, trademark law, business structure for the band and other music business legal basics.Participants in the panel include:Tamera H. Bennett, Bennett Law Office, PC/Farm to Market Music, LLC;  Catherine Hough, Ferguson Law Group; Evan Stone, Law Offices of Evan Stone; Kevin Harrison, Kevin Harrison Law.

Free and open to the public. 1.5 hour MCLE pending.


GRAMMYs At The Texas Capitol 2013 – update #txgrammys

The Recording Academy® Texas Chapter’s first bi-annual event, GRAMMYs At The Texas Capitol, took place yesterday, February 26, at the State’s Capitol. Approximately 30 participants lobbied on behalf of the membership including Chapter Trustee, Paul Wall, National Vice Chair of the Board Of Trustees, Christine Albert, Chapter Governor, Terry Lickona, as well as GRAMMY® winner Ray Benson, country music artists Jack Ingram and Josh Abbott, as well as NBC’s The Voice finalist, Nakia. The resolution in the Senate and House deemed February 26, 2013 as Texas GRAMMY Music Day.  This special day was sponsored by Texas Senators: Robert Deuell (R) and Leticia Van de Putte (D), and Texas Representatives: Myra Crownover (R) and Ryan Guillen (D).

Led by group members Todd Dupler, Director of Government Relations for The Recording Academy; Advocacy Chair Tamera Bennett; Advocacy committee members R.C. Rondero de Mosier and Ricky Anderson; and Sr. Executive Director Theresa Jenkins—the Texas Chapter met with policy makers to lobby for economic development and support for Arts education in public schools. Additionally, the group raised awareness about The Recording Academy’s concern for Intellectual Property and Piracy issues in the state of Texas.

Read more here.


GRAMMYs At The Texas Capitol – February 26 2013

Very excited to participate in the GRAMMYs At The Texas Capitol advocacy event on February 26, 2013.

The Recording Academy® Texas Chapter announced today the details for GRAMMYs At The Texas Capitol, its first bi-annual event set to take place at the Texas Capitol in Austin on February 26. One of 12 regional Chapters that link The Recording Academy to its membership, the Academy’s Texas Chapter will meet with legislators to raise awareness of the recording arts’ economic and cultural impact on Texas and showcase the organization’s diverse membership.

“We’re thrilled to bring to light all the different ways the Texas Chapter promotes educational programming, professional development and networking opportunities to its membership,” says Theresa Jenkins, Senior Executive Director. “We’re here to unite the Texas music community and showcase all we do to legislators to garner their support for our initiatives.”

On February 26, Texas Chapter Board Members and influential Texas music professionals will participate in meetings and presentations with policy makers to lobby for economic development and support for Fine Arts education in public schools. Jenkins and Tamera Bennett, the Advocacy Committee Chair, along with organization’s National Vice Chair, Christine Albert, Chapter Trustee Paul Wall and Chapter President Eric Jarvis will spearhead the event. Other members representing the Chapter are recording artists Jack Ingram, Josh Abbott,  Ray Benson, and Nakia. Media are invited to attend the morning meeting at the Stephen F. Austin Intercontinental Hotel VIP Lounge to hear the strategy before the organization heads to the Capitol. The day ends with a reception at Sholtz Garten where key legislators, House committee members and Texas Chapter members will convene.

More than just the GRAMMY Awards®, The Recording Academy is a full-service membership organization for music professionals with 20,000 members in its 12 Chapter cities. The Texas Chapter works on a number of programs year-round including the GRAMMY Block Party®, an annual membership celebration during the SXSW festival; the GRAMMY Camp®- Basic Training, a series of panels focused on music education, archiving and preservation (hosted at local high schools); GRAMMY U®, a variety of programs and events for college student members of the organization and Professional Development events tailored to the needs of the local membership.

Texas Chapter members are invited to attend the Advocacy Reception at the end of the day at Scholz Garten in Austin, Texas from 5 – 6:30 p.m. For information and to RSVP, please visit the Texas Chapter event page at GRAMMY365.com.


NatureSweet v. Angel Sweet: Texas Tomato Trademark Dispute

The world of tomatoes is not all sugar and spice as San Antonio, Texas-based NatureSweet, Ltd. sues Mastronardi Produce Ltd for trademark infringement.

NatureSweet’s complaint alleges Mastroniardi’s mark Angel Sweet featuring a cherry style tomato with angel wings,  is just too similar to Nature Sweet’s Cherub with design trademark –  featuring a grape style tomato with wings.  NatureSweet has a variety of trademark registration, including one for the winged tomato.

I also noticed yesterday, as I was enjoying my NatureSweet grape tomato, that NatureSweet claims a trademark in the product packaging.

Read more here.


Texas No Longer Regulates Talent Agencies

Effective September 1, 2011, the Texas Legislature repealed Texas Occupations Code, Chapter 2105, and removed registration requirements for, and the authority to regulate talent agencies.

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.


Texas Anti-SLAPP Bill Becomes Law

Texas joins 26 other states in passing legislation that supports a defendant’s defense of freedom of speech in civil lawsuits.

The “Citizens Participation Act” (HB 2973), provides protections for individuals targeted with strategic lawsuits against public participation (anti-SLAPP). The lawsuits, often filed against bloggers and journalists,  are usually brought in retaliation for a news story in which the reporter believes they exercised their right to freedom of expression in conveying the information.

The new law will allow for the defendant in a freedom of expression case in Texas to file a motion to dismiss the case based on the anti-SLAPP law within 60 days of the lawsuit being filed.  A hearing must be promptly set within 30 days of filing the motion to dismiss.  The judge will make a ruling based on the pleadings and affidavits filed.  In limited situations the judge has the discretion to allow discovery.

The law reads:  A court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party ’s exercise of:
(1)the right of free speech;
(2)the right to petition; or
(3)the right of association.

Even if the defendant meets the preponderance of the evidence standard, if the plaintiff can show be clear and convincing evidence, each and every element of the underlying cause of action, the case will not be dismissed.  The clear and convincing evidence standard is a very high hurdle for the plaintiff.

What makes the anti-SLAPP law most effective is the threat of the prevailing party recovering costs and attorneys’ fees.  It will be interesting to watch what will be the first test cases to be filed in Texas.

I would also like to give a shout to my friend and colleague media attorney Laura Lee Prather for spear-heading this bill.


Who Pays the Songwriter Under First Sale Defense?

by Tamera H. Bennett
August 20, 2007

Universal Music Group sued Troy Augusto for copyright infringement based upon Mr. Augusto’s offering for sale and selling of musical compact discs marked “Promo Only.” Mr. August secures promotional compact discs from various sources and then sells them on eBay.

Pursuant to 17 U.S.C. § 109(a), musical compact discs/tapes/albums can be sold or otherwise disposed of by the party in possession of the compact disc, without authority from the copyright owner. The big question raised in the lawsuit and other articles reporting the lawsuit revolves around the marking of the compact discs as Promo Only along with other legends regarding not selling the CD’s overriding the language of § 109(a).

Here is my question for the day that has yet to be addressed: Who pays the artist, producer, music publisher/songwriter and yes even the record label when “promo only” copies are sold?

Assume I am a music publisher. I will issue a license to Universal for one of their artists to record one of my songs. I will include language in the license similar to the following:

…provided, however, that no such royalty shall be payable with respect to promotional Phonorecords sent to disc jockeys, reviewers, and the like, which are clearly marked “Promotional Records Not For Sale” and which are not being distributed by Licensee for resale.

In my scenario, as the publisher I consent to a certain number of promo copies being manufactured and distributed and agree not to collect a royalty for those copies.

Suddenly, with the proliferation of online retailers such as Augusto, more and more royalty free recordings are moving in the marketplace without payment to the songwriter, publisher, artist, producer and label.

What is the solution? I am not sure. As much as I would like to see Universal prevail in this case and have a court announce Augusto’s action constitute copyright infringement, I do not think that is going to happen.

With a huge percentage of record labels providing digital content to radio stations and promoters, I wonder exactly how many promo copies are even pressed these days. Maybe this issue will resolve itself as fewer and fewer actual compact discs are made.


Beth Wood Cruising with Lovett, Colvin, Harris and Hiatt

by Tamera H. Bennett
August 19, 2007

Congratulations to our friend Beth Wood for being selected to perform on the Cayamo 2007 Caribbean Cruise. Beth will be hanging out, singing and having a lot of fun with Lyle Lovett, Shawn Colvin, Emmylou Harris, John Hiatt and a dozen or so more acclaimed singer/songwriters.

Eleven years ago Texas singer-songwriter Beth Wood kissed her day-job goodbye and hit the road to play music full-time. Since then, she has released seven independent albums, won many songwriting awards including the prestigious Kerrville Folk Festival New Folk Award, charted in the top 20 on the AAA radio charts, had a song featured on Fox Television’s “Party of Five”, sung our National Anthem at major league baseball and basketball games, and toured nationally as a solo artist.

But most importantly to Beth, she has found a way to connect with others through her music. Beth is a high-energy communicator of joy, a modern-day troubadour with a killer voice, poetic lyrics, and wickedly strong guitar stylings. If you ask Thor Christensen at the Dallas Morning News about Beth, he’ll say, “a voice and songs this strong are bound to persevere.”

Beth, thanks for being a part of the Farm To Market Music Team!


TUR JOINS YOUTUBE CLASS ACTION SUIT

by Tamera H. Bennett
August 8, 2007

Robert Tur, the cameraman and copyright owner that filed the first lawsuit against YouTube for copyright infringement, will dismiss his case in California against YouTube and join forces with the Football Association Primer League and the Bourne Company to battle YouTube in district court in New York.

Additional plaintiffs to join the class action include the National Music Publisher’s Association, Finnish Football League Association, the U.K.’s Rugby Football League, X-Ray Dog Music, Knockout Entertainment Limited, and Seminole Warriors Boxing.


COPYRIGHT OFFICE REVISES SEARCH DATABASE

by Tamera H. Bennett
August 7, 2007

FROM THE COPYRIGHT OFFICE

IMPROVED COPYRIGHT SEARCH SYSTEM TO REPLACE CURRENT SEARCH
SYSTEMS IN MID AUGUST

In mid August, the Copyright Office will launch a powerful new
records search system that accesses more than 20 million
digital records of registrations and recorded documents from
1978 to the present. The new system allows searching by title,
name, keyword, and registration or document number. Through
a command keyword search, elements of any or all fields can
be combined to search the records.

Users can also search by type of work, such as sound recordings,
dramas, motion pictures, visual materials, or preregistrations.
The search method combines three separate databases that
previously permitted only limited searching. The search tool
uses Voyager software, the same system used by the Library
of Congress Online Catalog.

For a tutorial on searching with the new system, go to:

http://www.copyright.gov/records


TAMERA BENNETT ADDS MEDIATION PRACTICE

May 20, 2007

Attorney Tamera H. Bennett recently received her certificate of completion of the Texas 40 Hour Mediation Course. Tamera will be available to mediate business conflicts with an emphasis on trademark, copyright and entertainment law disputes.

For more information, feel free to contact Tamera at info@tbennettlaw.com.


Trademark Registration FAQ

by: Tamera H. Bennett

TRADEMARK FAQ

What is a trademark or service mark?
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet, the terms “trademark” and “mark” refer to both trademarks and service marks.

How do I secure a federal trademark?
You must be using your trademark or service mark in interstate commerce (that is outside the borders of a single state) or have an intention to use the mark in interstate commerce before you can apply for a federal trademark with the United States Patent and Trademark Office.

What is “use in commerce” For goods?
The mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.

What is “use in commerce” For services?
The mark must be used or displayed in the sale or advertising of the services and the services must be rendered in commerce.

What is “intent to use”?
If you have not yet used the mark, but plan to do so in the future, you may file based on a good faith or bona fide intention to use the mark in commerce. You do not have to use the mark before you file your federal trademark application.

How do I secure a state trademark registration?
You must be using your trademark or service mark within the state in order to file an application.

Does filing a federal or state application guarantee a registration?
No. Filing an application does not guarantee that either the United States Trademark Patent and Trademark Office (USPTO) or the applicable state will grant you a registration.

Do I have to secure a state or federal trademark registration to own a trademark?
No. A person acquires the right to exclude others from using a trademark by being the first to use it in the marketplace. Rights in a trademark are obtained only through commercial use of the mark. Coining a phrase or designing a logo is not enough to secure trademark rights. You must use the phrase or logo on or in connection with your product or service.

What is the trademark selection and application process? • Develop a list of possible names.
• Discuss this list with your attorney.
• Your attorney will conduct a trademark search or “knockout” to exclude any existing marks that are identical or confusingly similar.
• Prepare and submit an application.
• It may take seven to nine months before the USPTO will respond to your application. If there are any procedural or substantive changes requested by the trademark examiner (an Office Action), you will then have six months to respond.
• If the refusal is overcome, or if no refusal issued, the mark will move to publication.
• If the mark is published and no oppositions are filed, the mark will be registered if it was filed as a “Use” application. If it is an “Intent To Use” application, a Notice of Allowance will issue and the mark must be used in interstate commerce.

What should I consider in selecting a trademark? • Trademarks are subject to varying degrees of protection. The stronger the mark, the greater protection it will receive.
• The trademark examiner will categorize a mark in one of four general categories:
generic marks
descriptive marks
suggestive marks
arbitrary and fanciful marks
• On a scale of 1 to 5, a generic mark is a 1 and an arbitrary mark is a 5. A mark that is a 4 or 5 on the scale has the greatest level of protection and is either suggestive of the goods or service offered or has no connection to the goods, i.e., arbitrary. A mark that is a 1 on the scale has no trademark protection. A mark that is a 2 on the scale, has limited protection. A mark that is a 3 on the scale is usually a suggestive mark and is protected.
• Resist the temptation to select a mark that describes the goods or services. It is difficult, if not impossible, to protect a mark that is descriptive.
• If you decided to create a magazine about mountain climbing you might select names such as the “Mt. Climbing Magazine”, the “Climber’s Journal”, “Mt. Everest”, or even something arbitrary such as “Orion.”

When should I use the ™ symbol or the ® symbol? • While the federal application is pending ( from one to two years), the trademark should be identified with the ™ symbol. Use the mark with the ™ on the actual product to which the mark applies, if possible, and on product labeling and packaging, and also in brochures, catalogs, advertisements, letterhead, business cards, and signage, as appropriate.
• When using a word mark, or the word portion of a combination mark (word plus design), in a sentence, distinguish it from surrounding text by using all capitals and quotes.
• After federal registration the mark should be identified with the ? symbol. Do not use the ? prior to issuance of the Federal Registration.
• If you secure a state registration, you may use the ™ symbol.

[trademark]


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