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!