Month: March 2015

More blues for Toyota over B.B. King ad

Toyota has failed to get a federal judge in Nevada to dismiss a copyright complaint from Eric Dahl, who wrote in his book B.B. King’s Lucille and the Loves Before Her, about finding and returning blues legend B.B.King’s cherished guitar. Dahl not only is an author, he is a guitar collector and frequent pawnshop patron, always on the lookout for unique instruments. When he found in a Gibson Lucille in Las Vegas shop with Prototype 1 written on it, he could not shake the feeling the ax belonged to King. Dahl met with King and returned the instrument, a gift for the bluesman’s 80th birthday that had been stolen. King sent Dahl home with an autographed guitar for himself. It’s a touching and copyrighted story, which made its way into a Toyota commercial for the 2015 Camry. Toyota’s version had a few twists and turns. In its commercial, Toyota shows a young, attractive woman who finds the guitar in a storage unit and returns it to King. He is so elated, he presents her with a signed guitar for her troubles. Dahl sued for infringement, saying the automaker had access to his story and took ideas from his first few book chapters without permission. Toyota argued to U.S. District Judge James Mahan in Las Vegas that it had presented a generic and common story line that could not be copyrighted.  In a decision widely reported on,...

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A Ranger fan-vid morphs past takedown

Mighty morphing… Lawsuit Rangers? A recent Power Rangers’ fan-created video, posted on YouTube and Vimeo, quickly was taken down after the copyright owner claimed infringement, sparking an ongoing debate about such creations and fair use. The 14-minute work, starring Katee Sackhoff (Battlestar Galactica) and James Van Der Beek (Dawson’s Creek), garnered several million views in the two short days it could be seen on the sites before representatives of copyright owner Haim Saban contacted both services claiming infringement. The short, with a grown-up approach to a kids’ character franchise, then was  yanked, resulting in a copyright strike for the producer under YouTube’s terms of service. It since has gone back up, albeit with disclaimers and age-related safeguards. Should fans blame some evil galactic force or what, in legal terms, befell this bit of pop production, causing it to yo-yo around online? Fan videos fall into a legal “gray area.” While rights owners do not want to anger their fan base and potentially hurt the good will of their franchise, they must protect their copyright and police their trademark. Fan videos also may have some protection under fair use. Transformative? As the distinction between fair use and infringement is “not always clear” or easily defined, important factors must be considered: whether the nature and character of the use is sufficiently transformative and whether the allegedly fair use of the material seeks to make...

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Village People cop wins bigger share of YMCA

All good things come to those who wait — and this seems especially to apply to musicians and artists covered under the termination rights section of the Copyright Act, as added and made effective Jan. 1, 1978. They may need to wait 35 years but they eventually can seize back copyrights on their original works. One of the first and public instances of this process occurred recently when Victor Willis, the cop in the vintage disco boogie band, the Village People,  publicly reclaimed his rights in an action before Chief Judge Barry T. Moskowitz in a federal court in San Diego.  And now Willis has extended his legal winning streak, with federal jurors deciding his rights’ ownership should be broader than he had been awarded before. While this case seemingly may be just one musician reclaiming his copyright rights, as the statute allows, the coverage that Willis’ action has received may prove key to spreading the word to other artists and musicians whose works only now are qualifying for similar consideration. Willis said he knew about this aspect of copyright law only because his wife is a lawyer. Creatives’ right to reclaim their works is not open-ended; original author-creators get only five years after the copyright’s initial, 35-year grant of exclusivity in which they may terminate and reclaim their rights. There’s potentially substantial sums of money involved, for many affected parties. In Willis’ case, it...

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Swift marks off more legal rights for music

Ever uttered or jotted down these phrases?   Party like it’s 1989. This sick beat. Cause we never go out of style. Could show you incredible things. Careful. Govern yourself accordingly: pop superstar Taylor Swift has laid legal claim to these words and more. Not as musicians typically do, just with copyright. Instead, she is pursuing a legal strategy that’s getting a lot of online attention. She’s seeking to trademark her lyrics, applying for legal protections for several catch lines from her newest album 1989 and especially as these might be applied to an array of goods or products. This isn’t an utterly unique legal tactic. But Swift’s raising eyebrows because of her market power and her aggressive protection of her works and more broadly her brand.   Swift already has gone after those she sees as undercutting her creative rights, getting her music taken down from Youtube and Spotify. But why pursue trademark versus copyright protections now? Trademark protection As Swift herself has observed, haters are gonna hate, but she has sold more than 4 million copies of 1989. The album has been such a hit that companies have tried to sell merchandise, without her approval, quoting her  lyrics. If she can trademark key lyrical phrases, this could help protect her brand from competitors, big and small, and, in theory, giver her exclusivity in marketing goods. For those who need a...

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Boom! Artist boxes record label for infringment

A quick verdict by a Manhattan jury last week cost Soul Temple, Wu- Tang Clan rapper RZA’s record company,  $200,000 after jurors found the label guilty of willfully infringing on artist Lyle Owerko’s copyrighted work. The lawsuit stemmed from the record label’s use of two images of vintage boomboxes produced by Owerko from his “Boombox Project.” The images were taken from an Internet search and featured on Wu-Tang rapper  U-God’s 2013 solo album and promotional merchandise. While Soul Temple conceded infringement of the images, the record label contested the issue of willfulness. Bob Perry,  Soul Temple’s former general manager, said the “label grabbed the images from thousands available on the Web without realizing that they were copyrighted.” The jury, however, appeared unconvinced, as it found the label guilty of willful infringement in only 40 minutes or so of deliberation. Under the Copyright Act, a court may enhance statutory damages for “willful infringement.” While a court may increase damages, the Act does not define “willful infringement.” Generally willfulness may be based on actual or constructive knowledge of infringement or on a defendant’s reckless disregard of the holder’s rights. Besides taking the images off the Internet, failing to license them, and using them for the album cover, it is unclear what evidence was presented to show actual or constructive knowledge of infringement. It is possible the jury found Soul Temple’s failure to...

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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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