Second Circuit Says Digital Downloads Not Public Performances

Makes sense to me.

The Court of Appeals for the 2nd Circuit has ruled that digital downloads are not public performances. The ruling nixes ASCAP's attempt to charge higher rates when consumers download and play songs from online providers.  The court stated " Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener."  The court remanded to the district court to determine a fair and reasonable license fee.  ASCAP responded: "ASCAP and its songwriter, composer and music publisher members are, of course, disappointed in the Court's decision that there is no public performance in the transmission of certain musical downloads. We are studying the decision and will determine what further action is appropriate."

The decision will probably have an effect throughout the download world, and hopefully set a precedent for fair royalty rates for consumers and artists alike.

Here's a link to the story on Techdirt: http://www.techdirt.com/articles/20100928/11271611198/appeals-court-tells-ascap-a-download-is-not-a-performance.shtml.

Comments welcome, have a great day. 

Protecting Ideas For Movies Is Difficult

There was an interesting story in the Hollywood Reporter yesterday about a recent New York District Court decision regarding protection of ideas in the movie industry.  The case involves the movie "Disturbia," which is admittedly very similar to Hitchcock's "Rear Window."  The trust that owns Rear Window sued DreamWorks, Steven Spielberg and others for copyright infringement of Rear Window.  Even though movie critics, the cast of the movie, and legal commentators admitted the similarity was great between the two works, the judge in the case saw it differently - at least as to actionable copying.

New York District Judge Laura Swain concluded that: ""The main plots are similar only at a high, unprotectable level of generality," and "Where 'Disturbia' is rife with sub-plots, the short story has none. The setting and mood of the short story are static and tense, whereas the setting and mood of 'Disturbia' are more dynamic and peppered with humor and teen romance."  Judge Swain finally states: "no reasonable trier of fact could find the works substantially similar within the meaning of copyright law."

Here is a link to the story:  http://thresq.hollywoodreporter.com/2010/09/disturbia-decision.html.  There is a link to the decision at the bottom of the article.

Comments always welcome.  Have a great day!

San Diego Music & Technology Conference - Revisiting Music Distribution

I sat on a panel last Friday that was entitled "Remixes, Production, Distribution & The Law."  As I was thinking about our panel discussion over the weekend, I realize we missed hitting an important point about distribution.  We had Jeff Price, CEO of Tunecore on our panel.  But our discussion just touched the surface.  We - and especially Jeff - hit on the fact that distribution is easier than ever in our high-tech, Internet-centric world.  But the real purpose of distribution, at least for many artists, is to get paid for their work.  In most cases, artists are paying for distribution, but they are not getting paid for their music.  That's because the price for music is free.  At least that's what all those who illegally download and share copyrighted music without paying for it like to think.

But they really do pay something - the money just is not going to the artists and copyright owners.  They pay Internet providers for Internet access, and they pay technology hardware companies for computers/players.  Countless advertisers pay Google and other Internet companies for ads on millions of download pages, tremendous revenues are generated there.  While the illegal - but "free" - downloads take place, someone is making millions.

So you may pay a company like Tunecore to distribute your songs, and you may make a few bucks, but for the most part, that's all you will make.  Because somebody somewhere is illegally sharing your music.  And probably many other's music, too.  That's the way it is.  95% of downloaded music is by unpaid, illegal download. (from IFPI - http://www.ifpi.org/)

There is a great article by Paul McGuinness, manager of U2, in this month's Rolling Stone.  It is worth reading.  Here's a link to the story:  http://www.u2station.com/news/2010/08/how-to-save-the-music-industry.php. 

This shouldn't be news to anyone.  Illegal downloads need to be stopped.  ISPs, Internet search engines, music player hardware manufactures and any business that is facilitating illegal downloads should all be paying a portion of their revenues to music creators and copyright owners. 

Even in the context of remixes and mashups, although there may be instances where there is a compelling fair use argument, remixers and mashers should be paying for their use of other's music.  I came up with an analogy I think is apt to try to put it in context:  Painters must pay for their paints.  Similarly, remixers and mashers must pay for their music.

Comments welcome.  Have a great week.

SDMTC - San Diego Music & Technology Conference September 16-17, 2010

I will be a panelist on a legal panel entitled Remixes, Producing & The Law at the San Diego Music & Technology Conference.  The Conference is being held in San Diego at the Hard Rock Hotel on September 16-17.  My panel starts at 4:45pm on Friday, September 17.  The San Diego Music & Technology Conference aims to become the premier venue on the West Coast where people gather to enjoy, advance and support the convergence of electronic music and technology. You can find information and purchase tickets here:  http://sdmtc.com/.

I will be joined on the panel by my esteemed colleagues Kevin Greene, Esq. and David Branfman, Esq.  Also on the panel is my client, co-founder of Sleeping Giant Music, and one of San Diego's top DJs, Fresh One.  Please come hear our panel discuss legal issues related to remixes, music production, and copyright, and enjoy this unique and exciting music industry event!

Have a great day!

Interesting Case Regarding Royalties for Digital Downloads

The case is FBT Productions v. Aftermath Records, 09-55817 (9th Cir. 2010). The appeals court reversed a lower court decision (FBT Productions v. Aftermath Records, 07-3314 (C.D. Cal. 2009). The original suit sought damages for royalties on the sale of ringtones and digital song downloads of Eminem's music. The record company argued a standard royalty applied for the downloads, the same as for CDs. FBT argued that the digital downloads were more like third party licenses, and a much higher royalty rate under a "masters licensed" clause in the recording contract applied - in this specific case, a 50% royalty. The lower court agreed with the record company, but the 9th Circuit panel - based on its review of the "broad but unambiguous" language of the contract - reversed and sent the case back to the jury to calculate damages. The court stated that the transaction was a license under US copyright law.

The bottom line is that not only will Eminem possibly receive millions of dollars in revenue from the court's decision, but all music artists are probably reviewing their contracts to see how this decision might apply to them, and making sure to put similar provisions in their future contracts.

Your comments always welcome. Have a great week!

North Park Music Thing this Friday & Saturday, Aug 13-14; Copyright Cleanup, Clarification and Corrections Act.

I am on a panel entitled "Lawyers, Guns & Money: Legal Issues For Musicians" presented at the North Park Music Thing in San Diego. The conference is at the Lafayette Hotel in North Park, and my panel is in the New Orleans Room starting at 1:45p. I will be joined by my colleagues Paul Mirowski, David Branfman and Valerie Nemeth. I will be talking about practical ways for musicians to protect their trademarks, and my colleagues will address music related issues related to film, copyright and other topics of interest.

The North Park Music Thing is an important networking and educational event for San Diego musicians and anyone involved in or interested in the music industry. Here's a link to the NPMT website: http://www.sandiegomusicfoundation.org/npmt/about.html. In addition to the educational panels and networking, there will be over 100 music acts performing over the two day event. I hope to see you there!

Switching gears, the Senate has passed S. 3689, the Copyright Cleanup, Clarification, and Corrections Act of 2010. Here's the link to the Act: http://thomas.loc.gov/cgi-bin/query/z?c111:S.3689: The title of the Act says it all - this legislation will clean up, clarify and make corrections to the Copyright Act and increase the efficiency of the Copyright Office in the digital age. I will provide an overview of the Act and some analysis in my next post.

As always, comments welcome. Have a great day!

Fender Stratocaster 50th Anniversary Concert Video

I had never heard of the "Strat Pack" Fender Stratocaster 50th anniversary concert, but flipping through Dish Network over the weekend I ran into it on the Paladia channel (wow, this post is really dropping the trademarks.....).  Loved it.  I missed the beginning, but caught performances by Albert Lee, Gary Moore (he blazes through Hendrix's Red House), Amy Winehouse (I never liked her until I saw this concert - loved her perfomance), Joe Walsh and David Gilmour (among others).  The DVD is for sale at Amazon, and it's worth it for Moore's, Winehouse's and Gilmour's performances.  All the perfomances are decent, so check it out.  Here's a link to more information:  http://en.wikipedia.org/wiki/The_Strat_Pack

Comments welcome.

Copyright Registration for Derivative Works

This post is a bit esoteric, but worth understanding.  Many times an author may not register a work when first published, but as times go on, and get better, it may occur to them to register the work.  By then there may have been significant additional authorship added to the work.  You might think you have to go back, find each iteration of your creation, and file each as a separate work in order to get the benefits of copyright registration.  And that might be the ideal.  But it might also be time consuming and expensive, or impossible.   Under some circumstances you can get a good result by just filing a application for the derivative work.  There is case law in the 9th Circuit (and others) that says you can at least get standing to sue on ALL PROTECTED MATERIAL in the derivative, not just the new material.  Here's the rub:  the older preexisting material must be in the derivative work, and the owner of the derivative must be the owner of the original work.  The case is Religious Technology Center v. Netcom On-Line Communication Services, Inc. 923 F.Supp 1231, 1241-1242 (N.D. Cal. 1995).

Questions and comments welcome.  Have a great day.

International Trademark Association Annual Meeting in Boston

I just got back from our annual INTA meeting, this year in Boston. Our firm is a long time INTA member. There were over 8300 trademark owners, attorneys and professionals from over 130 countries in attendance. As if the international scope of the meeting is not enough, the trademark expertise and experiences of the attendees is simply amazing.  Meetings, educational seminars and parties are the order of the day (and night). If only the entire world could get along this well!

Of course, the entertainment industry is always well represented at the annual INTA meeting, and this year I was pleased to hear colleagues from the Office of the United States Trade Representative (USTR), the United States Patent and Trademark Office (USPTO), and the United States International Trade Administration (ITA) talk about how they are working to protect U.S. entertainment businesses and their products exported to other countries.  In particular, the USTR representative explained that China has been improperly keeping US CDs and DVDs out of China for many years. The USTR filed a complaint against China with the World Trade Organization, and was able to get China to agree to allow the CDs and DVDs in. The USTR and ITA work hard to help US businesses - including entertainment industry businesses - get a fair opportunity to compete in other countries. They do their work at no charge to businesses. Check them out at www.ustr.gov/  and www.trade.gov/.

Questions and comments welcome.  Have a great day!

Publication of Songs and Sound Recordings

Following up on my post yesterday, the question was asked "what is publication?" My answer was distribution to the public - for example by making your music available on the Internet - constitutes publication. I also explained that it might not be a distribution - for example if you are only making your music available to a certain group of people, and not the general public. However, it is best to assume that publication has occurred if you are making your music available on the Internet, and/or selling (or giving away) a few CDs at public performances. When that happens, you should be thinking that the "clock is ticking" on your 3 month safe harbor to get a copyright application filed.

Here's what the statute (17 USC § 101) says about publication:

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

Comments welcome. Have a great day!

It's on!

First post to the musicnlaw blog, and that's what I'm talking about - music and law. My name is Michael Hoisington, and I'm an attorney at Higgs Fletcher & Mack LLP (HFM) in San Diego, California. I'm in my 10th year of practice, devoted exclusively to intellectual property and entertainment law. You can find my bio here:

http://www.higgslaw.com/apg_a32_Michael_J_Hoisington.html

The information and opinions expressed here are my own, not HFM's, and I take responsibility for everything posted here. Comments always welcome, but please be professional.

I'm also a musician - undergrad degree in music composition from UCSD (a great music department). I'm a songwriter, electric/acoustic guitarist, and performer. You can check out my myspace site here:

www.myspace.com/mikemichaelsband

I'm a co-chair of the Entertainment and Sports Law (ESL) section of the San Diego County Bar Association, and have been a member of the section for the past 10 years. Our website is here:

www.sdesl.com

Welcome to my blog, and I hope you find it informative and useful. My hope is that it will appeal to attorneys, musicians, songwriters, people in the entertainment industry and maybe even just plain folks interested in the subject matter.

I want to make a quick comment about copyright registration. I spoke at a seminar hosted by the San Diego Songwriters Guild about a week ago, and one question I got was about how the 3 month safe harbor rule in Section 412 of the Copyright Act (17 USC § 412) works. In most cases, you have 3 months from the date of publication to file a copyright and obtain the benefits of the Copyright Act- statutory damages (17 USC § 504), costs and attorney's fees (17 USC § 505). If the work is unpublished, you only get the benefits of the statute if you registered your work before the infringement began. What does this mean? If you register your copyright within 3 months of publishing the work, for example, 60 days after you publish the work, if someone infringes the work within that 60 day period, statutory damages, costs and attorney's fees will be available to you (even though you did not have a registration yet).

What you should take from this is - REGISTER COPYRIGHTS EARLY AND REGISTER OFTEN. As soon as you complete a work, register it as soon as you can. Protect your hard work. You can register copyrights online at http://www.copyright.gov/eco/.

Comments welcome, and have a great day!