Tips on keeping in synch with music contracts

synch-01Evolving technologies such as synchronization — matching music-sound to visuals, such as multimedia or video — are further pushing change for the music industry: Multimedia music production now has become easier, faster, and snappier. This also means that musicians and Entertainment lawyers must know more about important elements in draft license agreements and rights in synchronization of music. Hypebot.com, a blog-website dedicated to music business news, has put up some helpful suggestions and a scan of some case law highlights the challenges that musicians may confront if they fail to protect their rights.  (more…)

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As the blog turns three, time for a refresh

Biederman Blog - Law School Online Journal 2014-09-01 11-08-54 Biederman Blog 2014-08-24 18-58-20With great thanks and appreciation to all the students, faculty, administration, and others in the community who have supported the Biederman Blog since its outset, now that the site has turned three years old and our hard-working editors have produced more than 500 posts, it was time for a refresh. This is still a work in progress. But as the blog has duly recorded, technology races ahead on us all, and our audiences may be accessing our content in evolving, robust ways — no longer just on a desktop computer, but likely on a tablet or hand-held mobile device. So the blog now incorporates responsive views, meaning this site should adjust and adapt for easy viewing on different browsers and web-enabled devices. If you detect bugs or gremlins in the site and think we may have missed them, please email us at: swlawblog@gmail.com.

Our 2014 technology upgrade also allows the blog to resume its push to provide calendar and events listings to the Entertainment Law community. The many local bar associations, schools and universities, industry groups, and others conduct many and intriguing programs, conferences, and other events about Entertainment Law matters — and the site offers a forum to let other appropriate parties know about these. If you wish your event to be considered for the Biederman Blog Entertainment Law calendar, please send complete information, especially including a contact person, with plenty of advance time to: swlawblog@gmail.com . Keep watching this space to see how the outstanding law students who serve as the blog’s Editorial Board advance this project.

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Aereo decision: a ‘narrow textual analysis?’

grimesProfessor Warren S. Grimes, who helped write an amicus brief in support of defendant Aereo in American Broadcasting Cos. et al v. Aereo Inc., kindly  followed up on his recent Q-and-A with  Biederman Blog editor Brittany A. Stone about the U.S. Supreme Court ruling in this much-watched, much-discussed case:

BB: I understand you were involved in filing an amicus brief in the Aereo case, on the side of Aereo.  Were you surprised at the result?

WG: As part of the Southwestern Amicus Project headed by Prof. Michael Epstein, I assisted third-year law student Andrew Pletcher in drafting an amicus.  Pletcher was the primary draftsman, but he received guidance from me, from Prof. Epstein, and from others. [See video below] 

We were disappointed in the result, but there is never any certainty in litigation, particularly in a hotly contested case of this sort.  One surprise for me was that in the 6-3 decision, the three justices who dissented were [Antonin] Scalia, [Samuel] Alito, and [Clarence] Thomas, justices that I would not necessarily have predicted would side with Aereo.  Both the majority and the dissent, however, were focused on a narrow textual analysis of copyright legislation, not on the broader competition and policy issues addressed in our amicus brief. Essentially, the majority opinion conceded some ambiguity in the statutory language, but sought to discern what Congress would have intended had they confronted the precise issue raised in the Aereo case.  The dissent took a narrower view of the language, with Scalia suggesting that what is not expressly addressed in the statute is not covered.   (more…)

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Pay that funky law bill, appellate court decrees

A botique Seattle law firm that provided considerable legal representation for musician George Clinton now also has brought the funk, winning an appellate decision that will see masters of the song writer’s recordings sold to satisfy big debts he owes to his one-time counsel.

After long battles among Clinton, Hendricks & Lewis, and Warner Bros. Music, the U.S. Court of Appeals for the Ninth Circuit has affirmed a ruling allowing for the sale of the masters, resolving one of the main issues in the case: the decision to allow works made-for-hire to be sold to pay debt.

This was permitted only because the copyright had been voluntarily transferred by Warner Bros. prior to this battle. Because Hendricks & Lewis showed that Clinton owed $1.7 million, the firm asked the court to force the sale of his recordings: One Nation Under a Groove, Hardcore Jollies, Uncle Jam Wants You, and The Electric Spanking of War Babies, to pay up his account.

The appellate judges obliged this, reckoning that it might not have under others circumstances. Appellate Judge Morgan Christen, writing for the three-member panel, allowed the sale under Section 201(e) protection of U.S. copyright law, deeming a work that previously has been voluntarily transferred is not accorded protection of involuntary transfer of protected works. Further, because Clinton wrote these pieces while working for Warner Bros., the company, in fact, is the initial author and owner of the work, making Section 201 protection unavailable to Clinton, the appellate court said.

What does this mean for work-for-hire copyright law? This created a newly carved out realm of litigation for entertainment lawyers, copyrighted properties usually cannot be forcibly transferred. But considering the works made-for-hire may have been transferred once already, this may affect future lawsuits by artists who have copyright to their works transferred to them at some point in their career. Where will that leave the industry now, as this landmark decision could change many future cases regarding the sale of copyrighted properties?

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‘Beasties’ win battle to preserve a legacy

beastiesThe Beastie Boys recently won a $1.7 million lawsuit against Monster Energy drinks for the company’s 2012 use of a mash-up consisting of five Beastie Boys songs. DJ Z-Trip gave Monster permission to use his mix, which contained the copyrighted songs. Although there have been many music infringement cases that specify how many bars can be “borrowed” legally (which really is not accurate, and the higher the similarity, the more likely an infringement will be found), this litigation boils down to a key fact: DJ Z-Trip had no authority to sell a mix of copyrighted material without consulting the band for permission to use their music further.

Beside infringing on the Boys’ music, the energy drinks’ music video at the end projected an image that said “RIP MCA,” looking very similar to Monster’s logo, which the band felt qualified as an endorsement by the late artist. But  Adam “MCA” Yauch in his will specified that his name could not be used for promotional purposes. His following was great and his legacy was cherished by many. Two members of the band, Adam “Ad Rock” Horovitz and Michael “Mike D” Diamond filed suit for $1 million each in damages as well as $1 million for the purported endorsement. (more…)

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It’s elementary, Sherlock, claim’s too quixotic

basil_rathbone_2Modern lore, especially courtesy of movies and television, is filled with many different depictions of that famed Baker Street detective Sherlock Holmes and his Boswellian companion, Dr. John Watson. And while actor Nigel Bruce may have fleshed out Watson as a flabbier character than an army medic recently returned from the rigors of campaigns in India or Afghanistan, cinephiles, especially, would be hard pressed to envision a portly Sherlock. So were lawyers for the Estate of Sir Arthur Conan Doyle, creator of these classic characters, in trouble already in arguing before one of the famed appellate jurists of this day about a “round” late-career Holmes and Watson, deserving of more than a century’s worth of copyright protection? Yup.

In his typically crisp and acerbic fashion, U.S. District Judge Richard Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, has just shredded a novel argument that copyright on a literary creation should be extended just because characters change and develop over time. This keeps the Sherlock Holmes canon, of course, in the public domain.

The judge, whose opinions are oft-cited and are known for their sharp prose, dipped into his legal lexicon to describe the defendant-appellant’s legal theory in this copyright case with the same term he used to describe the war on drugs, dubbing both “quixotic.” Ouch. He also remarked about counsel’s futile attempt to persuade by drawing large circles in the air with his arms. There was lots of flailing in the case and here’s why. (more…)

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Hollywood’s sky-high over shot at drone filming

drones-for-film-productionWhat’s the buzzing high above? It may be unmanned aircraft systems aka drones skittering around or it also  just may be the rising film industry chatter about prospects for using the high-tech devices in new ways in Hollywood — this all triggered by statements from the Motion Picture Association of America and and the Federal Aviation Administration that seven media companies formally have requested federal approval to shoot television and movie footage from the air with the craft that earned their wings, so to speak, on recent and distant battlefields. (Thanks to variety.com for the drone image.)

What’s with the sudden whoosh of activity in this sky-high film making regulatory area? Strap on those seat belts and watch this monitor: (more…)

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In EU, anti-terrorism act runs afoul of privacy

metadataThe European Court of Justice has ruled that the Criminal Justice (Terrorist Offences) Act 2005, which required all telecommunications providers to retain telephone and Internet metadata, violated the privacy rights of individuals. The court, the European Union’s highest judicial body, sought to balance the act’s legitimate law enforcement and anti-terrorism purposes against the fundamental privacy rights of individuals; the judges said the act violated the principle of proportionality and was insufficiently circumscribed to ensure interference was limited to the strictly necessary. (more…)

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‘Tango & Cash’ skirt miffed Texas teen’s suit

What’s in a name and a little cross-dressing? Well, neither may not be a successful source for litigation in Texas. A federal court in Austin has dismissed Gabriel Seale’s complaint against Warner Bros Entertainment, asserting that the studio’s Tango & Cash movie, specifically the character Gabriel Cash, defamed, libeled and slandered Seale because they share the same first name. (Thanks to entlawdigest.com opinion here.)

Seale watched the cop-bro flick in 1990 with a group of friends, in Modesto, Calif., at age  16 and claimed his reputation was harmed. He says he was teased by friends because he shares the same first name as the protagonist Cash (Kurt Russell) who in the film dresses as a “woman with lipstick, a woman’s miniskirt, and woman’s high heel shoes.”

Let’s see how the court decided to tell this plaintiff to take a powder:

(more…)

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With infringing rap game, elusive damages

4MM's Def Jam Rapstar
4MM’s Def Jam Rapstar

So you’re a Entertainment Law litigator and you get a case in which the facts seem on your side and the monetary damages that might follow could sound, well, juicy. As a recent case involving a rap song video game shows, however, litigants should not count their money in a lawsuit before all the ink’s dry on all the papers.

Consider: What seemed like a copyright infringement lawsuit in New York with a potential $8 million payoff, well, honey, a federal magistrate and a U.S. District Court judge shrank that award.  (Online decision posted, courtesy of Courthouse News.) And, combined with a no-show defendant, that led counsel, figuratively, to whistle in the air and wonder about, is it leprechauns and their booty at the end of rainbows?

Let’s look at what happened, starting in 2009, when 4MM, a video-game developer and publisher of Def Jam Rapstar, approached Capitol Records to license recordings for a rap song game with an agreement that 4MM never paid. (more…)

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