Bradley Legal Group

Copyright Filing: Single or Compilation

LS — Tue, 21 Feb 2012 14:41:00 +0000

Filing a copyright is relatively easy if you know what you are doing. Registration is accessible online via the United States Copyright Office (www.copyright.gov), and currently (as of February 2012) the online filing fee is $35.00 USD for most works. To start, one of the main reasons an Artist files a copyright is proof of the time of creation of the work. Once registered in Washington, a heavy burden is placed on an opposing party to disprove your time of creation. A second reason is federal remedies. This means if someone copies your work, in a successful copyright infringement lawsuit, a prevailing party can receive an assortment of remedies under the copyright laws, such as lost profits, destruction of infringing materials, and most powerfully, statutory damages which can be up to $150,000.00 per infringement. For an introductory level discussion on this matter, there are two primary ways you can register: as a bulk compilation or as an individual work of art. There are benefits and limitations to both types of filings.

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.

Can I get sued for Blogging?

LS — Fri, 10 Feb 2012 15:46:26 +0000

“Can I get sued for blogging?” is a question that sometimes comes up in our office, and we are always amazed at the wide variety of beliefs we encounter. The answer is absolutely YES. Let’s discuss a few ways you can get sued with our imaginary blogger named “Matt” who writes blogs about “Baseball.”

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!

Are unpaid interns legal?

LS — Fri, 27 Jan 2012 20:02:33 +0000

Recently, two individuals who worked as ‘unpaid interns’ for the feature film The Black Swan filed a lawsuit against the film’s production companying arguing that the production company violated a variety of minimum wage and other labor laws through the hiring of unpaid help. The basis of the suit stems from the Fair Labor Standards Act (FLSA) which establishes a national minimum wage, guaranteed overtime compensation, and prohibits certain forms of child labor through businesses who engage in “for profit” activity through interstate commerce. As film production companies release movies for profit and in more than one state (interstate), FLSA certainly governs employment responsibilities of production companies. Additionally, while our example is a film production company in the entertainment industry, this brings up an important question to any business owner who sells any product on the internet:(the Internet is interstate commerce!): can you have unpaid interns?

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.

What to consider in a Management Contract

LS — Tue, 24 Jan 2012 14:58:39 +0000

Management agreements are not the most complicated agreements an Entertainer will face, but they are certainly among the most important agreements an Entertainer will sign. A personal manager is the closest member of an Entertainer’s team, and needs to understand the entertainment industry to be able to guide an Entertainer through the variety of pitfalls in the industry. Here are the five most important things to think about when discussing a management deal from the Entertainer’s perspective.

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.

Trademark Classifications

LS — Thu, 19 Jan 2012 14:43:08 +0000

When a person comes into our office to register a trademark, one of the first things we always discuss is what area of the business world are they intending to enter or protect. Trademarks work on a system of classifications. For a detailed list, they can be found here. These classifications categorize what goods/services your business is in, and accordingly, only grant trademark protection to the categories in which the mark may be filed.

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.

Why picking a good band name is important

LS — Mon, 16 Jan 2012 14:27:31 +0000

Recently it was announced that the pop-rock band Hanson, yes that Hanson of teeny bopper fame in the late 1990s, plans to get into the beer brewing business this year. The brothers intend to make an IPA beer named MMMMHop, bringing back fond memories of their hit tune linked above. While first, we must commend the boys for picking an exceptional style of beer and not wimp out with a more boring lager or pilsner, the boys new business venture is a perfect example of how bizarre the world of entertainment has become.

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.

Occupy Trademark

LS — Wed, 11 Jan 2012 14:05:49 +0000

Despite the anarchistic tendencies of the Occupy Wall Street movement and the heavy anti-capitalist and corporate principles in which the movement might believe, some members of the movement have nonetheless applied for Federal trademark protection, an enormously profit seeking capitalist venture. The big one, “Occupy Wall Street,” had an application filed by a group of New Yorkers in late October 2011 and contemplates using the phrase on clothing, accessories, periodicals (both print and digital), and presentations. A competing application for “Occupy Wall Street” was filed by an investment firm in Arizona, with it’s owner, a Mr. Vince Ferraro, stating “[trademarks] are the chattel of the 21^st century.” Not to be out done, a third trademark application has also been filed for “Occupy Wall St.”

Additional searches yield similar results. A variety of trademarks applications have been filed up for “We are the 99%,” “I am the 99%,” and “Occupy __________” (please insert your cities name, if it’s a big one someone has filed it already). Lastly, websites selling “Occupy” gear are popping up all over the Internet. We would link to a few sites to show some examples, but we don’t want to lead you astray as some of these shops donate to the “movement” and others most certainly do not and donate exclusively to their owner’s wallet.

What this teaches us is simple. Mr. Ferraro nailed it on the head when he identified intellectual property as being the chattel of the new digital world. Without protection to use a name in commerce, a person has no chance of stopping others from using a powerful name, logo, or slogan out in the marketplace. By reason of further example, it should come to no surprise that two days after U.S. Navy Seal force “Seal Team Six,” carried out its mission to eliminate Osama Bin Laden, Disney registered a trademark for you guessed it, “Seal Team Six.” Expect the movie to come out within the next few years and Disney to profit greatly.

Can I trademark a sound?

LS — Mon, 09 Jan 2012 14:53:04 +0000

The answer is yes, but it is very difficult. According to the United States Patent and Trademark office (and stated very simplistically), a sound mark depends upon ‘the aural perception of the listener and the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it is struck.’ Said in another way, you immediately think about a brand when you hear the sound. This is an incredibly high threshold to pass where a sound becomes so famous it is associated with a consumer good or service. Some very famous examples would be the NBC Chimes, 20^th Century Fox’s fanfare composed by Alfred Newman, or Homer Simpson’s catch line, “D’Oh!”

In comparison, the most famous denial of a sound mark (technically not a denial, but after 6 years in court the application was withdrawn) happened against Harley Davidson who attempted to trademark the sound of their motorcycle engine “chug.” Harley Davidson faced severe opposition from rival motorcycle companies who argued Harley Davidson’s sounds were not unique, and other motorcycle brands across the industry used similar motors which produced similar sounds.

First Sale Doctrine and Digital Content

LS — Fri, 06 Jan 2012 16:11:19 +0000

Second hand stores, such as used CD stores and eBay, have been around for years and are able to operate under an exception to the Copyright Act named the First Sale Doctrine. Simply stated, this doctrine allows the legal purchaser of a copyrighted work to sell or transfer the copyrighted work to a subsequent buyer without violating a copyright holder’s distribution rights. So let’s think about our used CD shops and eBay (and let’s ignore eBay as a conduit between buyers and sellers, because we’re talking about the sellers here, and also the analysis would still apply as to eBay as their business model encourages the sale of used goods and thus would fall under the copyright laws). These businesses sell used tangible goods such as physical copies of CDs, posters or photographs that are clearly copyright works, were clearly originally sold somewhere else, and are now being resold. This is a textbook first sale doctrine business model and why these shops are allowed to exist under copyright laws.

But now we have computers, and a great amount of entertainment content is in digital not physical form. Think about every song you download off iTunes or every movie you download off Amazon. Does the first sale doctrine apply to digital content? Can you sell that what you have purchased? Recently, the Recording Industry Association of America (RIAA) has instituted a legal response against start up “used digital content” stores that are reselling digital music, under the belief that the first sale doctrine does not apply to digital content. The RIAA’s argument is that digital content is not purely transferred in contrast to an exchange of physical copies, and the ‘seller’ does not necessarily have to destroy the digital content once transferred. Doubly problematic is uploading digital content to a digital content store is in essence creating a new copy (as the original still remains on the uploaders computer), which is a technical copyright infringement on its own.

It will be awhile before an outcome is determined in this case, but is a great example of the complexity of intellectual property protection in the digital landscape.

Who owns your Band?

LS — Mon, 26 Dec 2011 18:45:51 +0000

Whether you are from Florida, Tennessee, or typically elsewhere, the law will presume each member of your band is a “general partner” when no written contracts are signed between the members. This means each member owns an equal portion of the band and has equal say in management decisions. This is important as some members might be more involved in management, decision making, song writing, and general band business activities than others and might consider themselves as owning or controlling a different percentage of the group. Likewise, without an agreement, band members could equally be liable for band debts (potentially including those of other bandmates). This is not a smart way to run your band. A way around this “general partner” presumption is treating your band like a business, and entering into what we call Band Operating Agreement.

This agreement is the core understanding among the members when you set up your band as a corporation, or other legal entity, and discusses a variety of issues central to your business as a band. It will include:

1. Ownership of Band. Who owns what percentage of the band? Who gets control of the name now and in the future?

2. Ownership of band property. Did the band buy your second guitarist amp and new guitar? Who owns that? More importantly, does the band own the songs you write and record?

3. Profit and Loss Splits. Who gets what money that comes in?

4. Management Decisions. Who gets to decide what gigs you play and what your new t-shirt design looks like? What if the bass player doesn’t want to go on tour and the other four guys want to?

5. Administrative Rights. Does the band control your publishing catalogue and can sign contracts on your behalf?

6. Breakups. Can the guitar player who left the band market himself “formally as band name” on his website or worse yet just use the band name? Does he still receive income from the sale of merchandise that has his face on it? What about the songs he helped write? Can we still use them?

These are very important decisions to make when the band first starts, because once you become more successful, people’s attitudes change and you want to make sure your musical career is protected. Remember, there is no music without the business, and you need to treat your band like a business to make the music.