Nashville Entertainment Attorney-RIAA Wins in Copyright Infringement Suit Against Limewire

Nashville Entertainment Attorney

In what is sure to be regarded as a landmark decision (if the decision stands) that changes the manner in which people get their music via technology, a Southern District of New York Court granted the music industry’s summary judgment  claim that Lime Group, parent of LimeWire software maker Lime Wire (a p2p file-sharing website), and founder Mark Gorton committed copyright infringement, engaged in unfair competition, and induced copyright infringement.

“The evidence demonstrates that [Lime Wire] optimized LimeWire’s features to ensure that users can download digital recordings, the majority of which are protected by copyright,” the Court stated. “And that [Lime Wire] assisted users in committing infringement.”

Limewire, in addition to many other p2p sites, has long argued that its p2p site offers users many valuable non-fringing uses. The Court rejected this argument based on evidence showing that 98.8% of files actually requested for downloading were, or were highly likely to be, infringing.

Nashville Trademark Attorney-Nashville Entertainment Attorney

Nashville Trademark Attorney/Nashville Entertainment Attorney

Trademark Dilution

Trademark dilution occurs when the uniqueness of a famous mark is diluted or lessened in the eyes of the  public. Trademark dilution is different from traditional trademark infringement in that in an action for trademark dilution one does not need to show a likelihood of confusion in order to be successful in a court of law. Rather, the plaintiff in such an action must demonstrate that his/her mark is famous, and that the actions of the defendant dilute the distinctive quality of the mark.

In dermining whether or not a mark is “Famous”, the Courts routinely look at the following factors as laid out in the Federal Trademark Dilution Act:

The duration and extent of use of the mark;

The duration and extent of advertising for the mark;

The geographic area in which the mark has been used;

The degree of distinctiveness of the mark (either through the nature of the mark itself, or through acquired distinctiveness);

The degree of recognition of the mark;

The method by which the product was distributed and marketed (the “channels of trade”);

The use of the mark by third parties; and

Whether the mark was federally registered.

Once a mark has been deemed “Famous”, the Plaintiff will then need to establish dilution under one of the following two categories:

“Blurring”, by which the connection in consumers’ minds between the plaintiff’s mark and the plaintiff’s goods or services is weakened; or

“Tarnishment”, which means that the defendant’s use is unsavory or unwholesome, or the mark is used in connection with inferior products (http://www.bitlaw.com/trademark/dilution.html)

Nashville Entertainment Attorney-New Nashville Music Label

Nashville Entertainment Attorney

BREAKING NEWS- EMI Music has officially announced its decision to open a second Nashville-based label to serve as a sister label to EMI’s Capitol Nashville. The new imprint label will be called EMI Records Nashville, and has already signed Arizona-born singer/songwriter Troy Olsen as its first artist.

Despite EMI’s recent, well-publicized financial and legal troubles, EMI has derived a great deal of commercial success from its Capitol Nashville artists (Lady Antebellum, Keith Urban, Dierks Bentley, Darius Rucker, Luke Bryan and Eric Church).

EMI Music Nashville’s executive staff is expected to be announced in the very near future.

Nashville Entertainment Attorney- 360 Deals

Nashville Entertainment Attorney

360 Deals

Under the traditional record deal model, the record label, for the most part, earned and recouped monies from album sales. Over the past decade, however, many labels have sought to take on a more active role in developing the artist as a brand name. As a result, labels have been willing to pay/advance more to the artist for touring, promotion, publishing, merchandise, etc., and in return the label earns a financial interest in other (sometimes all) facets of the artist’s career. Some noteworthy 360 deals in recent years include EMI’s deal with Robbie Williams in which EMI paid Williams $160 million for an interest in his entire career, and the Jay-Z and Madonna deals with Live Nation, both of which paid out at over $120 million.

Nashville Entertainment/Intellectual Property Attorney-Mechanical Licensing

Nashville Entertainment/Intellectual Property Attorney

 

US copyright law affords any artist and/or band the right to record their own version (cover)  of a previously recorded /published musical piece even if the original owner objects. Such use is known as a compulsory license. Specifically and pursuant to the Act: “A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work …”

For example, your brother’s garage band may record and sell a cd covering a Waylon Jennings song, provided that, in the absence of permission from the song’s publisher, your brother complies with the Copyright Office’s instructions for obtaining a compulsory license, and that the cover recording does not change the basic melody or fundamental character of the original work.

Nashville Intellectual Property Lawyer- Duration of IP Rights

 

Nashville Intellectual Property Lawyer

The Lifespan of Intellectual Property Rights

A common source of confusion among the public is the lifespan or duration of intellectual property rights.  While the laws have been amended periodically, as of today, a federal trademark can potentially last forever. I say potentially because in order for a trademark owner to retain his/her perpetual rights he/she must file the necessary renewal affidavits with the USPTO, one between years 5-6 and the other between years 9-10, affirming that the mark is still being used in commerce. An owner must also take adequate measures to maintain their mark and protect their mark from infringement.

A copyright, on the other hand, has a fixed term. Generally speaking, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, copyright protection endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. Depending on several factors the lifespan of a copyright for works first published prior to 1978 will vary.

Lastly, a  utility patent, provided that all maintenance fees have been paid,  filed on or after June 8, 1995, will have a lifespan of 20 years from the filing date of the earliest U.S. application. Applications that were pending on and for patents that were still in force on June 8, 1995, the lifespan is the longer of 17 years from the date of issuance or 20 years from the filing date of the earliest U.S. application. A design patent, unlike a utility patent, has term of 14 years from the date of issuance.

Nashville Entertainment Law- Publishing Agreements

Nashville Entertainment Attorney

The “straight” publishing agreement is a contractual agreement whereby a publisher engages the songwriting services of a songwriter. Typically, a music publisher will pay a songwriter a monthly (or sometimes an annual) advance, and in exchance for that advance the songwriter will be required to write a certain number of songs for the publisher. In a “straight” publishing agreement, as oppossed to what is known as a “co-publishing” agreement, the publisher retains all rights to the songs written by the writer during the term of the agreement. The publisher is then responsible for seeking commercial exploitation of the songs. Such exploitation is commonly derived from mechancial licensing (having an artist record the song on his or her album) and synchronization licensing (licensing the song for use in film, television, and video games). When royalties from commercial exploitation are paid to the publisher it is the industry standard for the publisher to pay the songwriter a 50% share.

Be advised that while the foregoing illustrates what many consider standard terms for a “straight” publishing agreement, there are many  nuances involved in the drafting and negotiation of publishing agreements.

Nashville Intellectual Property Attorney

Nashville Intellectual Property Attorney

The standard by which trademark infringement is proven is “likelihood of confusion.” More specifically, a likelihood of confusion is present if potential consumers will likely be confused or mistaken about the origin of a product or service or as to the sponsorship or approval of such. To analyze whether a particular situation has developed the requisite “likelihood of confusion,” courts have generally looked at the following factors:

1. The similarity in the overall impression created by the two marks;

2. The similarities of the goods and services involved;

3. The strength of the plaintiff’s mark;

4. Any evidence of actual confusion by consumers;

5. The intent of the defendant in adopting its mark;

6. The physical proximity of the goods in the retail marketplace;

7. The degree of care likely to be exercised by the consumer; and

8. The likelihood of expansion of the product lines.

Nashville Music / Entertainment / Copyright Law

Nashville / Music / Entertainment/ Copyright Law

 

Pursuant to the United States Copyright Act, statutory damages are awarded for infringed works previously registered with the US Copyright Office prior to infringement or for infringed works registered within 90 days of publication. Statutory damages typically range from $750 to $30,000 as the court considers just. Damages for willful infringement, however,  can be as much as $150,000 per infringement.

 

Noah McPike

Intellectual Property – Nashville Trademark Issues

Nashville Trademark Law