Publicity rights of the deceased are governed by state law, which vary greatly. Some states such as Tennessee and California have very lenient rights of publicity laws, granting the estate of the deceased extended (if not forever) periods of time to attempt to generate revenue with the name and likeness of the deceased. Other states, like New York, do not grant an estate post-mortem rights, meaning that if you are resident of New York when you die, any individual has a strong claim at being able to use your name and likeness for commercial purposes.

Which brings us to Mrs. Monroe. At the time of death, Mrs. Monroe had permanent residences in California and New York, and as such, her estate was allowed to choose Mrs. Monroe’s state citizenship status. This in turn dictates which state’s law applies to her estate. The estate choose to have the laws of New York apply to Mrs. Monroe’s estate. This may seem crazy given the prior two paragraphs, but back fifty years ago the estates of dead celebrities were not cash cows and California had a significantly higher estate tax than New York. The decision the estate made was likely the smarter decision at the time as there was no way to expect Mrs. Monroe would be generating so much income significant years after her death, however this established New York law as the controlling law of the estate and has led to the estate’s current issues.

A few years back, and very simply stated, the estate of Marilyn Monroe began claiming rights under California law (and California’s ‘forever’ rights of publicity) which spawned the lawsuit when the estate sought to shut down certain companies making products with Mrs. Monroe’s image. The estate sought to gain protection for Mrs. Monroe through the more beneficial laws of California, but the Ninth Circuit Court of Appeals shot down this argument and told the estate in schoolyard fashion “there are no take backs.” Once the law controlling an estate is established, through selecting the state citizenship and domicile of the deceased, the estate cannot change its selection at a later date.

As rights of publicity are state dependent, it is important to know what rights you may have concerning the estate of a deceased. Please be sure to contact an experienced intellectual property attorney to ensure  the rights of the estate are best protected, as you can see above, there is the possibility that significant decisions must be made rather immediately in even filling out death certificates and forming a legal entity to govern an estate.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A

Imagine you are a band that has recorded 10 new songs, or an artist who has painted 10 new paintings.  The copyright office allows you to bulk-file all 10 of these new works of art in one filing, paying a one time $35.00 fee. The benefit of this registration is that it is cheap, and will provide federal protection. This means if someone copies your work, you can bring a copyright infringement action and receive an assortment of powerful remedies from lost profits to statutory damages. However, the bad news is, you can only receive a remedy based on 1 copyright registration and not 10. This is the trade off. While cheaper, you receive less potential monetary compensation and bargaining power if someone violates your copyright by filing in bulk. Compared to individual registrations, the opposite is true. It will cost $350.00 in filing fees ($35.00 times 10) to register each track individually online (which also takes 10 times the amount of time), but in the event of a copyright infringement down the road, you could bring a copyright infringement action with 10 counts and be afforded greater relief in the event of a legal victory.

A second major consideration is the concept of ownership. When you fill out the registration form, you must specify every author of the work. For a compilation filing, the percentages of ownership must be equal for every work filed. This is not a big deal for the painter who has painted 10 works all by himself, but this becomes a significant legal issue for the band where every band member may have written varying percentages of each musical work. If the band cannot agree on a single set percentage across the board for the ownership percentages of all their songs (which is likely), the band may be forced to register each song individually, thus being a more significant upfront cost.

In the end, any type of registration will give increased protection to your work of art, but it is important to think about how much is that protection worth to you when deciding what type of copyright to file.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A

A potential licensee does have to do a few things before they can start distributing cover songs and sheet music. First, the licensee must provide notice to the copyright holder or copyright office of the intention to obtain a compulsory mechanical license. Consent is a different word than Notice. Next, the licensee must agree to pay a royalty to the copyright holder. Basically, the Copyright Act allows you to record covers of other artists, but you still have to pay them for their work in creating the song. The royalty rate is standard across the industry. Lastly, the licensee cannot change the fundamental character of the work. This does not mean a licensee cannot change the general arrangement and put their own interpretation on the work, but massive changes could violate the Copyright Act.

One important note. The copyright holder still controls public performance rights of the work. Although you may have obtained a compulsory license to re-record a cover song and distribute physical copies, an additional license may have to obtained, usually from ASCAP or BMI, to publicly perform (live performances, radio, and internet) the musical composition.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.

With that in mind, let’s think about downloading a song on iTunes or other online retailer. Often, the song is only available in DRM (digital rights management) format, meaning only the downloader can play the song on a number of approved devices. DRM is in place to fight online piracy. A question has arisen lately whether a digital download is a “sale” or a “license,” based on the DRM format and other contractual terms contained on websites that only allow the downloader to play the song. That restriction placed on the download can be argued is more like a license, than a sale.

Many of the older pre-digital recording contracts do not discuss complex digital issues such as this, creating massive problems for record labels. Many older artists, such as the Knack (muh muh muh my Sharona) are bringing lawsuits against their record labels arguing they should receive the higher licensing percentage from online downloads rather than record sales. Some musicians have been successful bringing these claims, while others have not. The success turns on how well and forward thinking the recording contract is written. Which brings us to your record deal. Defining exactly what constitutes a “sale” is becoming an incredibly important issue for all parties, as it could grossly limit potential income based simply on a definition. This is yet another reminder why any Artist needs an experienced intellectual property and entertainment attorney to review these types of contracts.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.  

First, a user generated website must be a service provider. The definition of service provider is “a provider of online services or network access, or the operator of facilities thereof.” It is a very broad definition, and nearly all websites that host material will fall into this category.

Next, a service provider must then satisfy certain “conditions of eligibility,” such as the adoption and reasonable implementation of repeat infringer policy that provides for the termination in circumstances of account holders access to network and must accommodate standard technical measures used by copyright owners to identify works.

Third, a service provider must fall into four categories of safe harbors,(1) transitory digital network communications, (2) system caching, (3) information residing on systems or networks at the direction of users, and (4)information location tools. For our purpose, the third of these “information residing on systems or networks at the direction of users,” is where user generated content websites are covered.

Fourth, the service provider must comply with safe harbor provisions. Very broadly stated, this means the service provider must remove user uploaded materials that infringe on someone else’s copyright when the service provider has specific knowledge that there is materials on the site that infringe another’s copyright. It is important to note, service providers do not have to police their own system and hunt down potential violations. They only have to remove material once they gain specific knowledge, and they must do so expeditiously.

Lastly, the service provider must designate an agent to receive notifications from copyright holders concerning potential infringing content.

There are additional details a service provider must follow (and you should contact an experienced intellectual property attorney to go over administrative plans for your site to ensure you have the best argument as possible for safe harbor protection), but these are the main points a user generated site must follow while developing their business model behind the scene.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.

Despite these difficulties, the United States Department of Justice has recently been successful bringing actions against alleged infringers, such as coordinating with authorities in Hong Kong and seizing a variety of assets from a site known as Megaupload, and continued legal pressure, along with Swedish authorities, to the Swedish site known as “Pirate Bay.” However, while small victories are being won at attempts to shut down alleged facilitators of copyright infringement, the individuals who run these websites and/or entities are not sitting idly while law enforcement forces try and surround them.

Pirate Bay, arguably the world’s largest, if not most famous, bit torrent peer-peer network and site, has announced that they are preparing to launch GPS controlled drones to be flown in low orbit over international waters in an attempt to escape civil and criminal liability for copyright infringement activities. A brief overview of the law surrounding international waters is, if a cause of action accrues on a ship in international waters, the law where the ship is registered (all ships are required to be registered to a host country) predominates. By way of example, if a passenger on a ship slips and falls on a boat registered in Brazil, the proper venue for a lawsuit would be Brazil (please note, this is ignoring contractual relations between the ship and passenger which could place venue elsewhere). Pirate Bay is cleverly seeking to avoid the jurisdiction of any country of the world by flying their drones in an area that is not under jurisdictional control of any sovereign nation.

Overall, if Pirate Bay is able to launch their aircraft, they would have a considerable argument their aircraft is free from any regulations or laws of any country, thus escaping the jurisdiction of a Court system. Of course, the nations of the world could enter into new treaties better defining the air over international waters or create an international registration process for aircraft such as that which exist for vessels, but that will be a long and complicated process and during all of negotiations, more and more copyrighted material will be illegally disseminated across the globe. That is a scary prospect for copyright holders. That’s the latest in the continuing on-going struggles for copyright holders to enforce their rights.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.

The answer is probably no. The First Amendment of the United States constitution, among other things, protects Free Speech. What is and what is not protected speech is a much larger discussion, but for our purposes speech that is “newsworthy” or of “public interest” falls under protected speech. In our scenario, the War in Afghanistan is a newsworthy event, a classification of speech that is protected. Any individual may speak about anything newsworthy in the United States as a result. However what about the comedy aspects The Daily Show included? These additional aspects could be argued to make the montage a “parody” or satire.” The First Amendment protects speech that is a “parody” or said another way, “offers criticism” of something else. The Daily Show using Artist’s video arguably falls under this protection as long as the use of Artist’s video is not in a mean spirited way or with intent to injure Artist. As the Daily Show is known as a comedic program, there is relatively no chance Artist can prove a malicious use by the Daily Show.

Lastly, you may be wondering what about the Copyright in the video? Isn’t the Daily Show using Artist’s creation for their own use? The answer is yes, but as with the First Amendment, there are news and parody fair use defenses to copyright infringement and the Daily Show has a very strong argument that their video is appropriately used in a news format or in a parody.

The moral of the story is that the First Amendment protects a broad range of speech as long as that speech is not offensive and defamatory in nature. Talking about or using a celebrity’s likeness for news and comedic purposes under these type of circumstances, is more than likely protected under the publicity, copyright, and first amendment laws of the United States.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.

Think about Grokster, also known as the Kazaa network. Grokster was a peer to peer file sharing network a decade ago which outwardly advertised itself as “the new Napster,” i.e. a previous entity/activity that facilitated and induced infringement activities. When brought to court by the major record labels, Grokster ultimately lost under a secondary liability theory.  Since that time, all the peer to peer, bit torrent, and ‘uploaded content’ websites have been very careful in their marketing, design, and other advertising not to tip the scales as to become a ‘facilitator’ of infringement and open themselves up to liability under a secondary liability theory.

So why did Universal bring suit against Veoh knowing that Veoh’s marketing would not be its downfall as it was Groksters? Universal sought to challenge a provision of the Digital Millennium Copyright Act (“DMCA”), known as the “safe harbor provision.” This provision very simply states that a service provider who responds expeditiously to a notice of copyright infringement can avoid liability under the copyright laws. Think about this practically. Someone uploads a Katy Perry music video to Veoh and Ms. Perry (sorry Russel), or more likely her record label, finds out. Ms. Perry’s label subsequently contacts Veoh concerning the infringing upload, and Veoh ‘expeditiously’ removes the video from their site. Veoh has gained safe harbor status and Ms. Perry or the record label has no claim of copyright infringement against Veoh.

Back to Universal. They argue that the safe harbor provisions of the DMCA do not apply to web providers who display or distribute copyright works, instead of storing it, and that web providers need to police their own websites for copyright infringers rather than sit back and do nothing unless contacted by a copyright holder. This is an aggressive legal position for Universal to take and if successful, would be an enormous win as Veoh and other like websites would have an enormous administrative headache in ‘policing’ their own site. However, the Court thought Universal’s arguments lacked merit, as a unanimous decision roughly stated that a web provider’s activities of displaying, distributing, and storing information all define web hosting and all fall under the safe harbor provisions of the DMCA. More importantly, the Court ruled that the obligation is on a copyright holder to identify infringing material and only if a web provider does not remove the content after notice, does a claim for copyright secondary liability emerge.

This is a major win for web providers as the practical ruling of this matter is that web providers do not have to worry about any copyrighted material their users upload. A web provider only has an obligation to take material down if noticed and only can be found secondarily liable if that does not occur.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.