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.

1. Entertainment Attorney. Maybe we are biased because this is what we do, but this should be the first person on your team. Why? Your attorney will guide you through the selection of the rest of your team and advise and negotiate the significant contracts each of the individuals will require. If you are new to the blog, or need a quick reminder, we previously addressed the issue of how to select your Attorney. The article uses the Music industry as an example, but the process of how to select an Attorney is the same for all situations.

2. Personal Manager. This person plans your day to day activities and advises you as to their opinions regarding your career. A personal manager will network for you, solicit offers, plan your short and long term business strategy, and overall manage your schedule. Additionally, the manager will coordinate with the Attorney, Agents, Distributors, and Business Manager, and make sure everyone is doing their job. Think of this person as your middle man. The Manager deals with all the details of your entertainment life and presents you with the bullet points so you spend most of your time on the creation of entertainment content, and not the administration of your career.

3. Public Relations. Raising an Artist’s visibility is increasingly difficult with so much competition on the Internet. Hiring a PR person to devote significant time and effort to making you more famous is essential in today’s digital world. This person will be in charge of your website, social media integration, media exposure as well as local and print advertising and getting you big in your target market.

4. Agents. Depending on your industry (if you are a musician or actor, you will need a booking agent; if you are a band or writer, you will need a publisher, etc.), there are a variety of different names for these types of people, but overall their job is the same – get you gigs, hopefully paying ones!

5. Business Manager / Accountant. This is the easiest to describe. This is your money person who handles your tax obligations and general cash flow. This individual is the last member of your team as all the other positions are probably already in place by the time you are making real money to require this individual.

It is also important to note, that no one but yourself will take your career as seriously as you, so the selection of these individuals is extremely important, and you should find competent people experienced in the industry. Do not be scared to ask whoever it is you are talking to for referrals and past clients, and check in with those people and see what they think. Your manager, public relations representative and agents need to believe in you. If they do not, they may not be as interested in pushing for you as hard as necessary to make you as successful as you wish to become. As for your Attorney and Business Manager, you want someone with expertise, experience and knowledge of the industry. These people are professionals whose business is to not sell you like your manager, publicist, and agents. These people are there to negotiate the deals brought to you and know if some record label or production company is being fishy with the deal they are presenting to you. Just some parting thoughts to get your head turning about who you want to work with!

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.

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” as a compilation all 10 of these new works of art in one filing, paying a onetime $35.00 fee (if it meets with the right criteria). The benefit of this registration is that it is cheaper than individually filing each song or painting for $35.00 each, while still providing copyright protection on the federal level. The bad news is, you can only receive a remedy based on 1 copyright registration and not 10. i.e., this means your potential statutory damages are $150,000.00 and not $1,500,000.00. This is the trade off. While cheaper, you receive less protection 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 (and a few hours cumulatively) to register each track individually online, 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 to understand is the concept of ownership. When you fill out the registration form on each of these filings, you must specify every author of the work and what percentage of the work they own. For a bulk 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 him or herself, but this becomes a significant legal issue for the band where every band member has contributed a different percentage of compositional arrangement work for each of the 10 songs recorded. If the band cannot agree on a single set percentage across the board for the ownership percentages of all their songs, the band will be forced to register each song individually, thus being a greater 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.

1. Copyright Infringement. Matt is an expert on baseball, and writes blogs about specific games, players, statistics, you name it. Often times, Matt includes pictures of the player in the blog post so his readers can see the player hustling down the line or goofing off in the clubhouse. Matt gets these photos from Google Images, where he types the player’s name in, and finds a photo he likes. What’s the problem? Copyright infringement. Matt is engaging in the unauthorized reproduction of an image he does not own. Matt gets sued by the photographer (or other owner), and responds to the photographer, “I am not making any money off using your photo, my website is free, but I will take it down, I did not intend to infringe your copyright.” Is Matt safe? NO. It does not matter if he knew he was violating copyright laws or that he made no money off of his use of the photograph. If you use it, you are a violator! This is no different than putting a song on your website that you don’t own and letting others download it.

2. Libel, Slander, and Defamation. Matt is a huge Miami Marlins fan, and he hates the Atlanta Braves as their main division rival. Matt decides he really hates the Braves star second baseman, and writes this blistering 20 page blog making up an elaborate story discussing about the multitude of steroids the Braves player has injected with used needles behind the Atlanta Aquarium. The blog entry goes viral on twitter, and pretty soon reputable news outlets start reporting on steroid acquisition from “unidentified sources.” Needless to say, the Braves player’s reputation is severely damaged and he brings a lawsuit against Matt alleging libel (libel is written defamation, spoken defamation is called slander). Could Matt be found to be responsible for damaging the Braves second baseman’s reputation. ABSOLUTELY! There are a variety of things the Braves player would have to prove, such as Matt knowing his statement was false, the statement was made publicly, the statement was made with intent to harm, and the Braves player did in fact suffer an injury as a result, but just because Matt is not a “journalist” and is still not making any money off the site, Matt could still be found liable! The short answer, do not say false things to harm another’s reputation!

3. Trademark. Matt’s blog is entitled “The Major League Baseball Hustle All-Stars Blog,” where there are logos of Major League Baseball all over his site, as well as individual teams logos captured in the various images of players. There are multiple potential trademark claims here. The first is the easy one, trademark infringement or false designation of origin, which are two different claims but as this is a quick analysis will treat as one. Matt is using the name, logo, and symbols of someone else business organization (Major League Baseball, individual teams) in promoting his own site (this could also be copyright infringement if the art of the logo is copyrighted!). Consumers looking at Matt’s blog might be confused as to the origin of the blog (is it authorized by Major League Baseball?) since the blog is titled under the Major League Baseball name and uses multiple images of Major League Baseball in the site design. Matt is clearly infringing on Major League Baseball’s trademark in this example through use of Major League Baseball’s images and is likely causing confusion as to the origin of the blog. The second avenue, is trademark dilution. The short analysis of trademark dilution is, the owner of a famous trademark (such as Major League Baseball, this analysis would not apply to Mom and Pop’s corner store) can allege another’s use of their trademark lessens the uniqueness of the famous trademark, hurting the overall brand of the famous trademark. In our case, it is arguable that a consumer would find Matt’s blog confusing with one authorized by Major League Baseball or a specific team, but in certain factually scenarios where Matt’s blog looks very authentic, Matt could have dilution issues before him.

Overall, do not copy others images and pictures or say false and defaming things about an individual and you should be ok. In fact, you might even have a SLAPP counter claim which is the subject of a future blog!

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 maybe. The drafters of FLSA specifically included an unpaid internship exception with a corresponding six part test to determine whether a certain internship is eligible for unpaid status. The following six criteria must be applied when making a determination of unpaid intern status:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If ALL, not four, not five, of the factors above are met, an employment relationship between a company and worker is not considered as “employment” under the FLSA and the worker is not eligible to receive the protections of the act. Lastly, this is a bird’s eye view of the topic, as a determination of unpaid internship status is more complicated than six bullet points. It is in your best interest to contact an attorney experienced with this subject before taking on any unpaid internet.

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.

1. Term. It may sound simple, but how long the Manager will be in charge of the Entertainer’s career is a very important question. The Entertainer wants the shortest period and the Manager wants the longest.  Usually there is an initial period with options for the Manager to ask for more terms.  Terms of one to two years are not unusual and thus a total of three to five years is common.  An artist will want to ask for a “performance clause” to require the Manager to achieve a defined goal in order to exercise additional options, i.e. if the Entertainer is a musical act, the Entertainer will have to be signed to a major record label or sell X number of units for the options to be available to Manager.

2. Managers Authority. A manager will want a power of attorney over Artist to sign legal documents, collect income and operate bank accounts, and be able to make certain expenditures (travel, etc.) without authorization. It is important for both sides to well define what a manager can and cannot do because without express written authority by an Entertainer, the Manager might have to much or to little control to sufficiently manage the Entertainer’s career.

3. Managers Compensation during Term. Typically, a personal manager will make 15-20% GROSS of all commissionable income. The range could be higher for an unknown act and can be lower if an Entertainer has already reached some level of success. An Entertainer typically carves out certain activities, such as preexisting relationships with clients, ‘side man’ gigs, and normal expenses from commissionable income, thus lowering the pool of money a Manager can draw their commission from. As well an artist will want to define certain non commissionable items which can include compensation for opening acts, light and sound, vocal coach, etc.

4. Managers Compensation Post Term. This is often know as a ‘Sunset Clause,’ most managers will want a percentage of Artist’s income after their term of Management. The theory behind this ancillary compensation is, since Manager helped “break” the artist, Manager is entitled to some of the revenue generated years down the road. A well negotiated sunset clause diminishes the manager’s commission in the years after the term ends.  The sunset period is usually in the 3 to 5 year range and sometimes the commission reaches zero.

5. Key Man Provision. Many Entertainer’s sign with Management Companies, who may be free to hire and fire employees, including an Entertainer’s Manager. The problem with this for an Entertainer is, they may have signed with the Management Company only to work with Mr. X, and if Mr. X no longer works there, Entertainer might get stuck with someone they do not trust running their career. That’s why an Entertainer should demand a “Key Man” clause which basically will say, if Mr. X no longer works there (or becomes disabled or dies), the agreement may be terminated by the Entertainer. This is a very standard provision, but one a novice to the industry could overlook.

There are a variety of other issues also important to Management Agreements, but the ones outlined here are the big bold main points to consider when thinking about bringing a Manager on board.

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.

Here’s an easy example. XYZ Inc. has a trademark in XYZ for Metal Goods, Machinery, and Hand tools. A second company, XYZ LLC., has a trademark in XYZ for Food Stuffs and Beverages. Neither of these companies are necessarily violating the others trademark. Each one of these companies have trademarks based on their use in different product classification and cannot prevent the other company from using the XYZ name in other classes of goods. The reason for this is simple. The overall standard of trademark law is “consumer confusion.” No ordinary person off the street will confuse a metal and tool company with a food and drink company, thus trademark protection will only extend to the business activities one uses in commerce.

It is important to think about trademark classifications, as the new digital era has created a heightened branding culture. Finding a unique name is more difficult than ever, and a trademark holder should not invite problems if there is a trademark alive, whether in a competing or sometimes non-competing classification, that could prohibit future growth into separate markets or worse, create confusion in the public as to the source of goods. A trademark holder simply does not want to shoot themselves in the foot with using a name that could be difficult to protect.

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.

It is true the band is playing off one of their songs in their beer name and not their overall band name, “Hanson,” but the lesson to be learned here is that no one can predict where ones career or business ventures turns 5, 10, or 15 years down the road. A band, act, or artist’s branding, i.e. their name, is arguably the most important business decision an artist will make and this comes at the front end of an artist’s career. Careful thought must be put into how creative, unique, and protectable ones name is before starting to invest time, effort, and most importantly money into developing the brand. While an Artist may not care about future sales of merchandise or goods (or services!) now, the smart artist will have the foresight to plan for the future regardless and come up with a highly protectable name to ensure themselves the option of being able to expand the brand in the future.

Before using a name, be sure to check the United States Patent and Trademark Office to see if there are any hits, and also simply google the name and see if anybody else is using the name out in cyberspace. This small time commitment to determine the protectability of a name up front could pay big dividends down the road.

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.