Month: April 2013

For fans selling ‘used’ digital tunes, bad news

Gone are the days when music fans could resell their outdated collection freely without violating the 1976 Copyright Act.  Due to technology, downloading MP3s are the preferred method to purchase music now, and, according to a U.S. District Court in Manhattan, these are not material items that legally may be put on the market under the “first sale doctrine.”  The court granted summary judgment in favor of Capitol Records for its claims against ReDigi, the aspiring creator of a used digitial marketplace, finding it with direct, contributory and vicarious infringement of the recording company’s distribution and reproduction rights. ReDigi, an online marketplace for “preowned” digital music, had positioned itself as a pioneer, allowing consumers to sell legally acquired digital music files and to buy digital music from others at a fraction of their price, say,  on Apple’s iTunes.  ReDigi’s “Media Manager” must be installed on a user’s computer to determine the eligibility of the music files to be sold on the web service. This verification process involved analyzing the files to verify they were purchased from iTunes or another ReDigi user; vetted files then could be uploaded to a remote server or “cloud locker,” thereby deleting additional copies of the file from owners’ computers. Columbia argued that a “copy” was made on ReDigi’s server of each upload, thereby infringing on its exclusive right to reproduce its copyrighted works. The...

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A million reasons why FCC resets indecency rules

Since the U.S. Supreme Court decided FCC v. Fox Television Stations Inc.  in September, the Federal Communications Commission says it has reduced its complaint backlog by 70 percent, an astounding 1 million beefs, largely by taking on only egregious cases and discarding complaints for other reasons including timeliness and pertinence. The federal broadcasting watchdog also has announced that it is investigating whether its indecency policies conform with the First Amendment. The agency this week released a Public Notice seeking comments on how to approach “isolated expletives” (aka fleeting expletives). The FCC is seeking public comments on which approach it should adopt on these on-air no-nos: the Pacifica approach (requiring deliberative and repeated use of expletives in a patently offensive manner) or the FCC’s 2004 Memorandum Opinion and Order about the Golden Globe Awards (finding indecency for single use of expletive depicting or describing sexual activities). The agency also sought views on whether isolated, nonsexual nudity should be treated similarly to isolated expletives. The FCC’s latest approach could be a boon for broadcasters as the agency seems to be reevaluating its policies and focusing on the worst cases. That may be because broadcasters have proven successful in recent indecency cases. Still, the agency’s moves drew immediate fire from parents’ groups and conservatives. Judge for yourself if a single expletive should warrant a fine for broadcasters, as occurred when U2’s Bono accepted a Golden Globe award;...

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‘Aereo’ streams past broadcasters’ appellate test

Internet content-streaming has scored an important, albeit predictable victory, in the international fight over broadcast television control: The U.S. Second District Court of Appeal, as expected on Monday,  affirmed a lower court decision to deny a preliminary injunction filed by broadcasters against Aereo, the upstart net-streaming company launched by media mogul Barry Diller. In the 2-1 ruling, the appellate judges echoed the district court’s holding: Aereo is not publicly performing work because subscribers make single, unique copies and the audience for each copy is that single subscriber. The court rejected all of the plaintiff’s arguments, relying heavily on the Second Circuit precedent set in Cablevision. In contrast, the appellate dissent by Judge Denny Chin, agreed with plaintiffs that there are significant differences between this case and Cablevision. Most importantly, his dissent points to Cablevision, wherein the defendant operated its DVR system on a belief that it could do so because of its underlying, compulsory license with broadcasters, pursuant to Section 111 of the Copyright Act of 1976. In contrast, Aereo operates its net-streaming service sans any license to show broadcast television content. Chin’s dissent also views the act’s “transmit clause” broadly, finding “any device or process” to include Aereo’s system. Aereo — which some analysts say may be a means by which consumers unhook themselves from cable systems and costly subscriptions and for which Diller is discussing an expansion — employs complex technology, with dozens of individual antennas, a...

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Shooter seeks late, game-changing photo claims

If you shot this memorable, widely seen photograph capturing in real life one of the legendary poses in football, would you wait two decades to protect it and only then start to chase down those who you think wrongly used it without your permission? And what would be your legal chances of prevailing in litigation over it? Here’s a copyright infringement case that many wouldn’t make book on and that provides some key reminders to those in music, film or words who want protections for their creative works that, as in football contest, the clock can be a killer. The eye-catching 1991 image of Desmon Howard, a onetime Michigan star, has become the legal football in a suit filed in January in a U.S. District Court in Detroit. After scoring a touchdown, Howard struck the pose that fans know best because it’s similar to that of the coveted Heisman Trophy, the collegiate game’s top honor that he would later claim. Photographer Brian Masck caught that perfect moment, earning $500 and a credit line when his picture originally appeared in Sports Illustrated. Masck now is suing SI, Howard and others for using the image for commercial purposes without permission, credit or payment. But did he dally too long to make his claim most effective? Masck waited until 2011 to register a copyright for the photo. Per Section 507 of the Copyright Act, the statute...

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Does first-sale ruling affect entertainment law?

The U.S. Supreme Court, in Kirtsaeng v. John Wiley & Sons, recently held that foreign-produced copies of works protected under U.S. copyright law are subject to the “first sale” doctrine. The doctrine, codified at Section 109 of the Copyright Act, gives the copyright owner the right to sell each copy of the work once, allowing for free transfer of that copy beyond the initial sale. The ruling is bad for U.S. publishers, who now have less control over distribution of their works. But what is the decision’s impact on entertainment law practitioners, if any? Gordon Firemark, a Los Angeles entertainment attorney and blogger, notes concern from industry officials that the ruling makes it more difficult for U.S. businesses to compete abroad. On the other hand, others note that the decision will enable U.S. businesses to purchase goods abroad and resell them in the U.S., fostering a legal “grey market.” This blog posted previously on this case with excellent background on some of the competing interests. Taking either perspective, the decision is good for consumers because it should result in cheaper goods. Also, the ruling forces U.S. companies to reconsider international price discrimination. And despite amicus briefs by the music industry, forecasting dire consequences if the court ruled as it did, at least some analysts don’t see such gloomy results from this decision. Finally, it’s important to mention that the Kirtsaeng decision applies only to authorized copies, i.e. ones pursuant...

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The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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