Author: Annie Berlin

For music industry, a digital path forward

To stem future lawsuits over royalty rates relating to digital downloads, record labels, music publishers and digital music providers have reached a settlement for future mechanical royalty rates arising from digital music services.  The deal seeks to avoid  past battles waged over rates for music streaming services while introducing new ways for consumers to enjoy music, all while deterring online music piracy. The Copyright Royalty Board must reiew and approve these new  rates, which would be in effect  from 2013-2017. The proposed settlement creates five new mechanical royalty rates for: 1) Digital locker services,  services and products such as iTunes and that allow users to store music and provide on-demand streaming. In this category, music publishers will get a mechanical rate of 12 percent of revenue or 20.65 percent of total content cost or 17 cents per subscriber, whichever is greater.  This rate will provide music publishers and artists with a lot of revenue based on the 17 cent per subscriber model.  Clearly, the music industry understands the expanding importance of paid cloud services. 2) Free cloud storage with a download purchase. Music publishers will get 12 percent of revenue or 22 percent of the total content cost, whichever is greater. On the free cloud service rate, music publishers will not get the option to collect based on subscribers  This is a victory for the cloud storage industry because...

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A glum side to a Fox win in British suit

Twentieth Century Fox has won a victory in a trademark infringement lawsuit over “Glee” in Britain, a case that may prove a blow to individuals’ ability to protect intellectual property rights in the British system. The court’s ruling, observers say, could curtail remedies available to small entertainment firms seeking to shield their trademarks against larger companies in Britain’s Patent County Court rather than its High Court. The patent court is a special jurisdiction designed to allow small business to litigate IP rights quickly and in an affordable way.  It is similar to California’s system of limited civil actions, in which there is limited discovery.  More key, the British patent court imposes a hard 50,000-pound cap on attorneys’ fees and costs. This is crucial because losing parties under the British bear fees and costs of litigation.  This differs, of course, from the U.S. system, where, absent statutory or contractual language or a court decision, each party bears its own costs. The British suit was brought in patent court by a small firm (Claimant) that runs comedy and music operations known as “The Glee Club” and “The Glee Comedy Club.”  Claimant had its trademark in “Glee” since 1999. It asserted it learned about the Fox show in 2010 but decided against pursuing action against the TV production because it thought Glee would be a passing fad similar to the “High School...

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Humane ways to avoid bad luck filming animals

HBO’s recent decision to pull the plug on its racetrack drama series ‘Luck’ after three horses died during production of the high-profile show spotlights not so much as to what producers did or did not do to protect the animals but how those in filming and production can take steps to safeguard four-legged performers and avoid unfortunate circumstance. Guidelines established by the American Humane Association offer a sound start.  The association is the only animal welfare organization supported in this role by the Screen Actors Guild, which has a clause in its agreement mandating that in SAG productions, producers must bring the humane group in if animals will be used in filming. The association offers a number of useful links on its site to assist producers in protecting animals on set.  These voluntary guidelines may be seen here, a site with the group’s resources to assist producers in safeguarding animals, including the guidelines that include a handy checklist (see Page Eight). Producers are urged to contact the association if they plan on animals in their productions, as those that meet and follow the group’s guidelines may receive its certification and carry the official disclaimer “No Animals Were Harmed’ in the production credits. These measures and the association have not immunized themselves from criticism, including from People for the Ethical Treatment of Animals, which has raised concerns about the association’s capacity to protect animals because...

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A British win for entertainment: ISPs lose suit

The entertainment industry has won a long-running battle in Britain as the High Court has rejected a lawsuit by major internet service providers against the UK Digital Economy Act. The ISPs had asserted that the act violated European Union laws governing privacy rights.  This decision came down after two years of legal challenges and appeals by BT and TalkTalk, two of Britain’s biggest ISPs. The Digital Economy Act was controversial from in its enactment in 2010, in large part because it required ISPs to take an active role in preventing copyright infringement.  Specifically, it allows copyright holders an easy way to track down infringers: It forces ISPs, without court orders, to act on claims of infringment and against those accused.  In Britain, the ISPs now must send warning letters to customers on file-share networks who the music, movie and software industries claim infringe on their copyrights. Further, the ISPs must keep a list of potential infringers; if individuals are deemed to infringe others’ works multiple times, their service may be shut off.  And for those wishing to appeal an infringement claim, they first must  pay a £20.00 ($31) fee. The High Court rejected the ISPs pleas in its March 6 decision and ordered them to begin working with rights holders to put in force the Digital Economy Act.  While the music and movie industry hailed this decision, there are doubts...

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‘Oh, Really?’ Do ‘Big Bang’ defenses fizzle?

In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise. The Big Bang Theory is a sitcom featuring Sheldon and Leonard, best friends and socially awkward physicists, and their neighbor, the blonde waitress and aspiring actress Penny. In the episode titled   The Excelsior Acquisition, Sheldon, the eccentric, nerdy know-it-all, decides to challenge his red-light-camera ticket in court.  He presents three separate defenses for his violation: 1. He argues that the proceeding is unjust because he cannot confront his accuser (the camera) 2. He asserts the legal doctrine of necessity and 3. He simply asserts, “Penny made me do it.”  Each defense, of course, is immediately dismissed by the judge in comic fashion. But, in fact, in a real court, would a judge snicker or find merit in his geeky defenses? In arguing that his violation should be tossed because he cannot confront his mechanized accuser — the red light camera — Sheldon asserts the Constitutional Sixth Amendment right, known as the confrontation clause.  See Sixth Amendment.   However, Sheldon’s argument lacks merit because a photograph is not testimonial evidence and thus, the Sixth Amendment right does not apply.   See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding that the confrontation clause only applies to testimonial evidence); People v....

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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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