Month: April 2012

An appellate remix in Viacom-YouTube lawsuit

Posted by Tiffany Samuel | Apr 12, 2012 | Copyright, Film, Music, Sports, Technology |

A mixed ruling from the Second Circuit Court of Appeals has reversed in part a June, 2010, judgment in favor of YouTube in a lawsuit filed by Viacom. That lower court decision had been appealed by Viacom International Inc, The Football Association Premier League Ltd. and an array of television networks, movie studios, sports leagues and music publishers after YouTube Inc., YouTube LLC, and Google, Inc. prevailed in 2010 and the full decision in the latest twist in the case can be read here. In 2010, a federal district court in New York heard arguments regarding claims of direct and secondary copyright infringement, based on the display, public performance and reproduction of 79,000 clips on YouTube put up between 2005 and 2008. In its June 23 ruling, the district court granted summary judgment on all claims, finding the defendants had safe harbor protection under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. The appellate judge were asked to clarify the contours of the DCMA’s “safe harbor,” especially limits on the liability of online service providers (OSPs) for copyright infringement, occurring “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c). Plaintiffs had sought statutory damages under 17 U.S.C. § 504(c), or in the alternative, actual damages from the claimed...

Hear, hear: Canada reverses on TM for sounds

Posted by Brandon Prior | Apr 12, 2012 | Music, Trademark |

Listen up: The Canadian Intellectual Property Office has issued a key Practice Notice, announcing that it has begun accepting applications to register sound marks. This abrupt change in Canada’s Intellectual Property Law follows a court ruling related to a 1992 application by MGM Studio Inc. seeking to trademark the lion’s roar heard at the beginning of all MGM movies. MGM argued identifiers that are sound-based are difficult to represent visually, restricting consumers’ ability to specifically identify the sound with a product. Canadian officials had contended that trademarks were limited to the visual representation of brands and their identifiers, not in nontraditional sonic fashion. The March 28 reverse, after 20 years of extensions and delays, came after Toronto’s IP office refused an MGM application in 2010, that action was appealed in federal court and MGM prevailed. The latest decision brings Canadian trademark practice in line with other jurisdictions, including the U.S., European Union and Australia. The Practice Notice on sound marks specifically states that a Canadian application should: state that the application is for the registration of a sound mark; contain a drawing that graphically represents the sound; contain a description of the sound; and contain an electronic recording of the sound. Where it is not clear whether an application is intended to cover a sound mark, the Office will ask the applicant for written clarification. Where a sound mark is considered to be functional and/or clearly...

Q-&-A: Theater law, with Gordon Firemark

Posted by Kim Jackson | Apr 10, 2012 | Music, Q & A |

The community of lawyers in the U.S. who specialize in Theater Law is small. Gordon Firemark is one of those few. His practice focuses on representation of artists, writers, producers and directors in theater, film, television and music. He also deals with intellectual property, cyberspace, new media and business-corporate matters for entertainment industry clients. The publisher of Entertainment Law Update, a podcast for artists and professionals in entertainment, Firemark also teaches Theater Law in the Online LLM program at Southwestern and runs a commercial online site that aims to teach aspiring producers the ropes of the business. He is a graduate of Southwestern and recently at the request of the Biederman Blog answered questions about his background and legal specialty. What is Theater Law? It’s a subset of the field of Entertainment Law, which is really sort of an amalgam of components of other areas of law: the intellectual property area, contracts, labor, taxation, securities and finance. And what makes it unique is that it’s a niche market and industry that’s very insular and closed, and, therefore, has developed its own customs and practices over the years. So being this field as a lawyer means being familiar with and understanding those customs and practices and their historical context, as well as their ramifications and the larger view in light of the modern entertainment climate. I think of myself as a jack of a few...

Tech’s progress overtakes Hollywood win, again

Posted by Jasleen Ahuja | Apr 9, 2012 | Music |

When the FCC decided to give studios and cooperating pay television companies permission to shut down analog streams to HDTV home theaters (aka “selectable output control”), Hollywood rejoiced. Consumer groups, on the other hand, resisted, arguing this move would be unfair to those who had bought analog-only HDTVs and similar devices. Two years later, it seems the top studios and cable companies offer little evidence of significant offerings in selectable output control. What happened in the wake of what once was a major tech dust up? Look up the defintion of “progress of technology…” Ars Technica details the...

Ask an Expert: Perfect pitching of ideas

Posted by Sarah Meister | Apr 6, 2012 | Copyright |

Q: I have a potential client who has come up with a fantastic slogan-design for a guitar manufacturer-retailer. Can I ethically disclose the idea to you? Second, should we first attempt to register the copyright then pitch the idea? How can I effectively reach out to a company like Guitar Center to pitch the idea? A: Because it is an idea, it cannot be registered with the Copyright Office. You can register it with the Writers Guild. That will provide a provable date certain. As for dealing with Guitar Center, you might try speaking with the manager of a local store and ask the manager to check with the home office as to who you should speak to. Another approach is to contact its headquarters and ask to speak with someone in marketing. Introduce yourself as an attorney and request a meeting. The blog’s editors are pleased to present this Ask the Expert with Robert C. Lind, the Director Emeritus of the Donald E. Biederman Entertainment and Media Law Institute and a Professor of Law at Southwestern. A former semi-professional musician, he has combined his interest in the arts and law to become an expert in several aspects of entertainment, media and intellectual property law. A prolific writer, he is the author or coauthor of widely used casebooks, treatises and study guides on entertainment law, art law, museum law, and media...