Month: May 2013

Musicians: Avoid this quartet of legal miscues

Mita Carriman, a onetime indie musician herself and now a lawyer in entertainment, intellectual property and small business law, has offered some noteworthy, hard-nosed counsel to indie musicians, busting a quartet of music-law myths, fallacious notions that can harm composers and performers if they rely on them. The four myths she seeks to debunk include: Myth: “Poor man’s” copyright, the fantasy of gaining legal protection by e-mailing or snail-mailing yourself  a copy of your work. Carriman points out that a copyright is triggered once an original work is “fixed” in a tangible medium of expression, such as by recording an original song on a CD or MP3 or by the act of writing down the lyrics and music. She underscores that those who create content must protect their works formally through U.S. copyright law by registering them with the Library of Congress; copyright owners then can avail themselves of remedies, with lawsuits for damages of $750 to $150,000.00, plus attorney fees per act of infringement via statutory damages.  A leading case on how rights get fixed? Midway Manufacturing Co. v. Artic International Inc., in which a court held that aspects of a video arcade game could be copyrighted though its images appearing on a screen were transient. Myth: “50 second… 5 second … 8 bar … or 1 bar,” the false notion that some musicians think permits legal sampling...

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Video game-maker thrown for loss on appeal

The First Amendment can’t bowl over the publicity rights of a former Rutgers quarterback when it comes to his depiction in a video game: The U.S. Court of Appeals for the Third Circuit, in a case closely watched by powerful interests in sports and entertainment, has overturned a lower court ruling that granted summary judgment for Electronic Arts Inc. The federal district court had found the video game-maker’s freedom of expression outweighed plaintiff-athlete Ryan Hart’s publicity rights and that the product in question contained creative elements that were transformative fair use. EA, the appellee in the case, produces the video game NCAA Football. It features digital avatars that resemble real-life college football players and that can be controlled by game players. The game-maker licenses from Collegiate Licensing Co. — the National Collegiate Athletic Association’s agent — “the right to use member school names, team names, uniforms, logos, stadium fight songs, and other game elements.” Unlike certain of its other video game franchises, EA does not license the likeness and identity rights for intercollegiate players. Appellant Hart, a star at Rutgers University from 2002-2005, objected to the game’s use of his likeness and biographical information and argued that the maker violated his right of publicity, as rooted in New Jersey state law.  As a condition of his participation in NCAA sports, Hart was required to adhere to the organization’s amateurism rules....

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Viacom ruling upends an online music decision

The U.S. Court of Appeals for the Second Circuit has helped to push the rewind button on a decision involving fifteen major record companies and a now-defunct online music company in an ongoing battle about the Digital Millennium Copyright Act and copyright infringement. The appellate court’s ruling in a separate case has led a U.S. District Court in New York to grant a motion to reconsider its 2011 ruling in Capitol Records Inc. v. MP3tunes LLC, granting in part and denying in part motions for the plaintiff’s EMI Inc. and the defendant Michael Robertson. MP3tunes is the now-gone locker-storage service for music files that Robertson owned. It provided online music storage and facilitated free music downloads by linking to websites with free music files. In 2007, MP3tunes received from EMI Music Group a take-down a notice identifying 350 infringing songs and unauthorized websites. The notice also demanded that the firm remove all EMI’s copyrighted works, including those not specifically identified. The storage firm partially responded by removing unauthorized websites from its link index but it did not remove the infringing songs from users’ lockers. Two months later, EMI sued MP3tunes and Robertson for copyright infringement.  The lower court held that MP3tunes qualified for “safe harbor” protection under the DMCA but still could be liable for contributory infringement due to its failure to remove infringing songs after receiving take-down notices....

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Court sniffs, scratches case on software in film

There’s no trademark infringement where a fictional company or product portrayed in a film has the same name as an actual company or product, a federal court in Indiana has determined.  In South Bend, the U.S. District Court granted Warner Brothers’ motion to dismiss the trademark infringement case filed by Fortres Grand Corp., which claimed the Batman film The Dark Knight Rises  referred to its “Clean Slate” computer software, causing consumer confusion. Clean Slate, which plaintiff Fortres manufactures and secured a federal trademark for in 2001, protects the security of a computer by erasing all evidence of user activity so others who follow on a device can’t see it. This case arises in references to a fictional computer program called “clean-slate” in Warner’s 2012 Batman film, in which Selina Kyle, the character who becomes Catwoman, tries to get her paws on software to scrub her criminal history from computer databases around the world.  The fictional software program is designed by “Rykin Data” and is referred to four times in the film.  Two websites – and – were created to promote the film. Fortes sued Warner Brothers, asserting trademark infringement and unfair competition under the Lanham Act.   The studio moved to dismiss the case, described by the court as a classic infringement claim involving “forward” confusion, in which “the junior user attempts to capitalize on the senior user’s good will and...

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In Texas, Papa Berg grapples with WWE

WWE, the entertainment wrestling giant, couldn’t smack down its opponent in a Texas court, as it squared off with the songwriter Papa Berg to get his copyright infringement lawsuit dismissed.  A U.S. District Court in Dallas ruled partly in favor of the World Wrestling Entertainment Inc., granting its motion to dismiss his contributory infringement claim but the judge denied its motion to dismiss Berg’s direct infringement claims. Berg is a musician-songwriter who has written or co-written several songs for professional wrestling, including Badstreet USA, which he co-wrote with one of the defendants, Michael Seitz, aka Michael Hayes.  The song was played as “entrance music” for certain professional wrestlers, including Seitz. In 1983 Berg registered this song with Broadcast Music Inc. to collect licensing fees and administer his royalties, while still retaining his publishing rights. This controversy arose out of THQ, a video game company, seeking to use Badstreet in one of its games. THQ initially made an offer to Berg to license the song but then later notified him that records showed the song was owned by the WWE. When he researched, Berg found that the song as well as eleven other protected works had been re-registered with BMI by the WWE, listing co-defendants Seitz or James Johnston as “songwriter/composer” and defendant Stephanie Music as publisher.  This resulted in the royalties from use of the works on the WWE’s...

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