Month: February 2016

Warner runs up white flag on ‘happy birthday’

It’s the end of an era, in case you missed it: Copyright professors have lost the best example of a right owner’s legal stranglehold, Happy Birthday. Now performers, movies, and television shows can freely use the tune that is sung, nearly universally, at birthdays across the country. There have been creative alternatives to this tune over the years, but none could hold a candle. A federal court in Los Angeles ruled that the song was, and has been, in the public domain. That’s because the company that Warner bought the rights from, Summy Co., never actually acquired the lyrics from the original owners; Warner, thus, does not have a valid copyright in the lyrics. This ruling compelled Warner to seek a settlement to avoid hefty damages claims. Just before the case was set to go to trial, last December, the two parties reached a settlement. The details of which have just been released. In settlement papers filed on Feb. 8, which, interestingly enough, Warner still asserts that they have a valid copyright in the lyrics, the company has agreed to pay out claims for those who were charged for using Happy Birthday up to $14 million. Half of that money, $6.25 million, is dedicated for claimants who have paid to use the song since June 15, 2009 while the other half can be used for claims going all the way back...

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A textbook case on deciding attorney’s fees?

To the justices of the U.S. Supreme Court, this case has offered a legal challenge, an opportunity to reconsider how copyright applies to works lawfully made abroad. To the original defendant, this matter seemed like a smart business approach, a way to take stuff available cheaply in his native land and to resell it in another market with a premium markup. To plaintiff John Wiley & Sons, this was a seemingly straight-forward infringement claim that has boomeranged in ways unimaginable not that long ago. Someone now may be on the hook for more than $2 million in lawyer fees. To intellectual property practitioners, especially Entertainment Law specialists, Kirtsaeng v. John Wiley, which is potentially up for another round in the nation’s highest court, may be a pivotal case in figuring if and how they get paid. It is still unclear what to expect from the high court, which has granted certiorari but has not assigned the case a hearing date. Because real money’s involved, let’s keep close book on this dispute: How the dispute began Supap Kirtsaeng and John Wiley battled before the High Court in 2013 over the First Sale doctrine and whether it applies to works lawfully made and sold in a foreign country.  Kirtsaeng, a Thai, was studying for his math Ph.D. at Cornell University. He realized that texts he was using in the United States also...

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2 empires collide over TM; Fox TV series wins

Empire, Twentieth Century Fox’s series, has made headlines since its January, 2015, debut for helping to revitalize television. With more viewers cord-cutting (with its legal risks),  TV networks have scrambled with varied results to win audiences back, resorting to live musical productions, special events, and exclusive concerts. For TV networks, Fox’s success with Empire was a refreshing ratings boost. Created by Lee Daniels of Precious fame, Empire offers its twist on King Lear: Instead of three daughters vying for a kingdom, three sons struggle to take on their dad’s hip-hop legacy and his fictitious record company, Empire Entertainment. That has displeased Empire Distribution, a real-life record label, music distributor, and publisher. It has worked with hip hop artists like Tyga, T.I., Ab-Soul, Busta Rhymes, Gladys Knight, Rae Sreummurd, and Kendrick Lamar (fresh off his win at the Grammy’s for “To Pimp a Butterfly”). Empire Distribution, arguing art imitated life too closely, demanded that Fox pay $5 million for using its trademark; the real Empire also sought a cease-and-desist order against the show. Fox filed a counter-lawsuit,  seeking a declaratory judgment that neither Empire as a show title nor the fictitious record company violated trademarks. Empire Distribution brought counterclaims. That was the status quo until a federal judge in Los Angeles granted summary judgment, ruling in Fox’s favor. Empire Distribution’s Claim Empire Distribution has trademarked Empire, Empire Distribution, Empire Publishing, and Empire Recordings.  Several  applications for its marks, including...

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Goliath of live concerts cleared on anti-trust

The way that fans interact with music has changed drastically in the decade, moving them away from getting them to form long lines at venues to buy tickets to concerts to doing so now online, at home, alone, instantly, and with a click of a mouse.  This also has meant that live performances sell out in mere minutes, whether they are music festivals like Coachella or  Adele’s upcoming tour.  The frenzy of camping out for shows has become antiquated. But has this technology-based change also given undue competitive advantage to big promoters with major name recognition? That has been a gripe of smaller players in the market, and it has become a more pressing issue to many as live concerts have become an ever more lucrative, central part of a music industry riven by streaming, recorded, published and performed ways of product distribution. The complaint chorus rose to a crescendo about Live Nation, one of the leading companies promoting, orchestrating, organizing, and booking artists for concerts.  A federal district judge had dismissed on summary judgment an anti-trust challenge to Live Nation; appellate judges recently affirmed that ruling. The courts have found that the company’s size was neither inherently good nor bad but that plaintiff It’s My Part Inc. (IMP) had provided insufficient proof that its anti-trust claim could succeed. The appellate opinion noted that IMP set up the case akin to a “David-and-Goliath battle between an industry behemoth and...

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Law school Entertainment Law alum honored

Some good news for a member of Southwestern’s Entertainment Law community: Nate Hargress, LL.M. ’09, is the 2016 recipient of the Rising Star Award from the Association of Media & Entertainment Counsel (AMEC). He will receive his award at the AMEC’s 11th Annual Counsel of the Year Awards. Before joining Viacom Media Networks in January 2016 as senior counsel, Business and Legal Affairs, Hargress spent five years with Discovery Communications as an attorney in Legal and Business Affairs. He also serves as chair of the AMEC Emerging Leaders Advisory Board. “Winning the award means a great deal to me, especially since I didn’t really know anyone when I first came to Los Angeles from Michigan,” Hargress explained. “My first time in Los Angeles was when I came to visit Southwestern. Now, to receive such an honor from the entertainment law community is truly humbling.” Hargress also credited Southwestern’s LL.M. program in Entertainment and Media Law for bolstering his career opportunities. “Southwestern prepared me for career success by offering a multitude of courses focusing on entertainment,” he said. “Because of my diverse coursework, I felt comfortable dealing with issues in music, television, film and new media.” AMEC was formed in late 2005 by prominent entertainment attorneys and studio executives. It is designed to support the career development and honor the achievements of in-house counsel and business affairs attorneys at major entertainment...

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Entertainment Law Blogs

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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