Friday, May 28, 2010

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  and

Questions and comments welcome.  Have a great day!

Friday, May 21, 2010

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!

Thursday, May 20, 2010

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:

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:

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:

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

Comments welcome, and have a great day!