Sunday, August 28, 2011

Why Entertainment Law Podcasts Are Essential To New Business Owners & Entertainment Professionals

Registering your trademark and or simply retaining copyright to your website's content is not enough to avoid some of the common legal issues many professionals face in the entertainment industry nor will it keep you free from being sued by other companies. If you are someone who wants a career in the entertainment industry but are confused by the legal terminology or is discouraged by the latest reports on who's being sued in the entertainment industry, I'm here to tell you, fear not! In order to be successful in starting a career in film, television, sports, music or in launching an entertainment business one must know where they want to conduct business, know how to protect their content, have an understanding of the legislation that is applied to your industry as well as the legislation that is applied in the local and state levels and lastly, by having legal counsel. In addition to these steps, conducting business research on the common legal issues within the industry, connecting with professionals in the industry via social networks and subscribing to entertainment law pod casts will also be helpful not only in getting the latest tips and tools on ways to avoid lawsuits but also in being aware of the  issues that are hotly debated in the entertainment industry.  

Pod casts are a great way for entertainment industry newbies to get a better understanding of the legislation that pertains to their field within the entertainment industry and is also a reliable source for any changes to legislation that is pertinent to entertainment industry. When looking at pod casts relating to the entertainment law, I recommend that you listen to entertainment attorney Gordon P. Firemark's Entertainment Law Update Podcast and visit his website. On his website viewers not only can access his pod casts which cover a variety of legal topics, but also get to hear the comments by guest appearances such as entertainment lawyer Tamara Bennett. In addition to this viewers can also contact his law firm for legal counsel, request topics of discussion, lawyers can obtain legal education credit, viewers can ask questions and subscribe to his blog.  Personally,  I can say that Firemark's Entertainment Law Update Podcast provides useful information as well as tips relating to entertainment law which one can apply to their business. After listening to the Entertainment Law Update Podcast episodes 18, 22 and 23, I was able to obtain valuable information as to how to avoid common mistakes made by businesses in the entertainment industry.

Episode 18, which aired on March 7, 2011 covered a variety of issues from Lady Gaga's song "Born this way" and it's similarities to Madonna's song "Express yourself," Tolkien estate vs. book author, subway's claims to the "foot long"word, the King's Speech right to using the "no animals harmed" certification and Miss San Antonia's lawsuit. The three issues that stood out for me in this podcast were Subway's foot long trademark claims, Superbowl's Class Action and the similarity in Lady Gaga's song "Born this way" to Madonna's song "Express yourself." Subway apparently for sometime has been trying to obtain "foot long" as a trademark with the USPTO. Subway has also sent cease and desist letters to stores demanding that they stop using the "foot long" words to identify their products. Sources say that one store in Iowa, responded by stating that the"foot long" is descriptive and therefore gives them the right to use the words. Firemark concludes that the "foot long" is not a good brand identifier.  Despite the federal court denying one of its claims, Subway continues to pursue the "foot long" claim. This case is a great reminder that when choosing a trademark one must select a brand identifier that is unique and not something descriptive where other companies can and have the right to use that descriptive mark because there is little protection in descriptive marks.

Sources say that Lady Gaga's song "Born This Way" song is very similar to Madonna's song "Express yourself" and wonder whether or not Madonna will pursue a case for copyright infringement or pursue other legal claims for Gaga's "Born This Way."  Sources say that there are strong similarities among Lady Gaga's performances, "Born This Way,"song lyrics and Lady Gaga's attire to Madonna's song "Express Yourself" and past Madonna's past performances. One source stated that Gaga had received Madonna's blessing for the release of her song yet other sources claim that Madonna's management had no recollection of that blessing. Firemark concluded that with the similarities to Madonna's music found in Gaga's "Born This Way," song, Madonna could pursue legal action but whether she will or not is yet to be seen. This case highlights the issues that can arise when artist's attire and lyrical content is similar to another artist's style and song who has a long standing career in the industry.

In the Superbowl class action suit, fans were outraged when they were placed in seating areas not as stated on their tickets. It was reported that when the fire Marshall deemed several  areas  as "unsafe," over 1000 people were moved to various locations. The plaintiffs that filed the lawsuit are seat license holders who were among the 1200 fans that did not get the seats they paid for and among those that did not get a refund for their expenses. Sources say that the seat license holders class action suit has significant evidence for breach of contract and that relief has yet to be determined. This case underlines that it is possible that it is likely that only the seat license ticket holders will obtain monetary relief where as the other fans are simply stuck with the other end of the stick.

In episode 22 which aired on July 14, 2011, the issues I found most interesting were the Hangover II Tattoo case and Rebecca Black's lawsuit against Ark Music Factory. Whitmill v. Warner Bros. case, is the case where the tattoo artist that gave Mike Tyson his facial tattoo, Victor Whitmill filed a suit against Warner Bros. for copyright infringement on May 2011.  Later in mid June 2011, the Hangover II lawsuit was settled and the parties came to a deal which was private and somewhat unknown to the public eye. What was known is that Mr. Whitman was entitled to a large check for the use of his tattoo and that the movie will released in DVD without any editing.

In the case of Rebecca Black, the star's management accused Ark Music Factory of copyright infringement and unlawful exploitation of publicity rights. Rebecca Black, age 13 quickly gained popularity shortly after her song "Friday," obtained millions of views on YouTube. After the viral success, the company that produced the song decided to create a pay system so that viewers would have to pay several dollars to see the video. The issue in question is who has the right of publicity? According to the podcast, no information has been founded on who has right of publicity to the song. In conclusion Gordon recommends that before using a song that it is important to know who has ownership of the song and who has the right of publicity. The case has not been settled but sources say that it will be interesting to see what the judge may decide specially when there is no data as to who has ownership of the song. This case in a great reminder in that one must have clear definition as to who owns what when releasing a song for benefits as well as for justifying claims.

Cases that caught my attention in episode 23, that aired on August 18, 2011 was the case of Mine o' Mine Inc vs.  Calmise and the court of appeals ruling that gave copyright owners broader rights for works made. Shaquille O'neal, owner of Mine o' Mine Inc. filed a lawsuit against True Fan Logo Inc. for right of publicity and trademark infringement who was unlawfully registered the Shaq trademark to a domain and later sent a cease and desist letter to ESPN. The company also had unlawfully started selling t-shirts with the Shaq trademark without O'neil's consent. The court ruled in Shaquille's favor because, the basketball player is owner of the trademark, O'neal owns a family of trademarks and because True Fan Logo Inc. never obtained authorization from Shaquille O'Neal to use his trademark. To that effect, the court stated that the defendant tried to create confusion. What is important to note about this ruling is that a person or business can own a family of trademarks that is have several marks with familiar qualities.

The case of Supap Kirtsaeng, the young man who violated John Wiley and Son's copyrights after selling cheap foreign books of the original versions encouraged the United States court of appeals on August 15, 2011, to rule that it is illegal to import and sell copyrighted material from outside of the United States.  As noted in the podcast, the ruling gives copyright owners more rights for works made abroad which could potentially be music Cd's as well as other goods. Gordon points out that it will be interesting to see how artists and other entertainment professionals will benefit from this ruling.

Gordon P. Firemark's Entertainment Law Update Pod cast as well as episodes 18, 22 and 23 are very informative. New-bee entertainment professionals will find this podcast not only helpful in understanding legal terminology but also useful in understanding legislation that applies to the entertainment industry. For some entertainment law terminology can be difficult to understand but it can be understood and being active in social networks and tuning in to several entertainment law pod casts that allow you to seek counsel and ask questions are beneficial to starting a business as well as in establishing a career in the entertainment industry. 


Sunday, August 7, 2011

Current Controversies In The Entertainment Industry: Adam Levine Sues Activision, J.R Bricks Receives "Cease To Desist" Letter For Release Of "Waffle House" Song & Spotify Is Sued By VideoPacket

Although artists and entertainment businesses can protect their intellectual property as well as their image through federal, international and state laws this does not exclude them from being sued by other parties and not becoming a victim of having their image wrongfully used. Whether you are an established artist, an up-incoming star or a new entertainment business, protecting your image as well as your products and services is essential specially in an industry where being held legally responsible, regardless of your intentions is as easy as 1, 2, and 3. In the entertainment industry, research suggests that a common area where artists and or businesses find themselves in a legal bind is when they use another company's product or an artist's product without obtaining proper legal permission and licensing. An artist can also be at risk of having their image and or trademark distorted as well as used for other purposes when they are blinded by a sweet deal and forget to read the fine print in a contract. There are several ways to minimize the risk of being sued and that is by protecting one's own intellectual property through legal rights as well as understanding how one can interact and use another artist's property in a given contract as well as through laws.

Are you an artist who is passionate about writing and wants to protect your content? Has your company invented software or product that is unique and you want to protect this innovation? Is your company slogan catchy and you feel your company should have official rights to those phrases? If your situation fits into one of the above questions, there are several legal steps one can take to protect their intellectual property. With all that said, if an artist has the proper laws and rights set in place for their artistry, and someone wrongfully distorts his or her image then, he or she can sue the other party.

A recent report by Billboard revealed that 'The Voice's' and Maroon 5 band member, Adam Levine is suing Activision for their video game Guitar Hero where he claims that the company is improperly using his image to encourage game sales.  Billboard underlines that Levine claims the company violated their contract by breaking the "common-law right of publicity" and by using "unfair business practices." According to The Hollywood Reporter, the original arrangement between Mr. Levine and the company Activision stated that Mr. Levine "granted the company limited use of his name and likeness for the game, Band Hero." In addition to that, The Hollywood Reporter underlined that Levine supposedly allowed Activision to use the song "she will be loved" for the video game, "Band Hero." Billboard also highlighted that Mr. Levine alleges that Activision allows gamers to "use his avatar to perform songs by other artists without his approval" and "without the use of his voice." The result of his claims is yet to be announced in court. Is Mr. Levine entitled to monetary grief for what he so alleges? 

Personally, if Activison did not adhere to the agreement, then by all means Levine should receive relief from Activision. On the other hand if Activision adhered to the contract and did not violate the terms then, Levine should not be granted relief for this lawsuit. It appears that Levine only agreed to have his avatar and voice to be used in specific areas and that further use of his voice and avatar needed to be approved by him. If that were the case then the judge should grant Mr. Levine relief because his voice is being used to promote other songs that are not his which is not to his benefit but more so for the benefit of the game and Activision. Using an artist's avatar would not only discredit and minimize the artist's likeness but also his or her image specially if, the artist’s neither voice nor songs are being showcased. I do feel that further information regarding details on the specifics of how Levine's avatar and his songs could be used, if Activision's actions were not in violation of common rights law and other intellectual property laws and knowing whether or not Mr. Levine and his management have what types intellectual property laws in place would allow me to me to give a better conclusion on this controversy.  

Unlike Adam Levine who was the suing party in the lawsuit, Billboard sources report that in another controversy rapper and artist J.R. Bricks and his label was recently called to attention for his song "Waffle House," by popular restaurant Waffle House for "trademark infringement." According to, Waffle House claims that J.R. Bricks's had no rights in using their company logo and that had J.R. Bricks and his label sat down to discuss rights to the company logo for usage perhaps, a cordial agreement would have supported the usage of company logo and name. Music Industry News Network reported that the Air Force veteran, and Florida native J.R Bricks responded to Waffle House's claims by stating that the company's claim was an act of "cultural discrimination" and that they are opposed to the "hip hop lifestyle." Billboard reported that a week later after "Waffle House" made its debut, on July 20, 2011 J.R. Bricks's label received a "cease and desist" letter from WH Capital, LLC and Waffle House, Inc. In that letter sources say that the restaurant Waffle House demanded that the artist change the name of the song and stop using the company's logo. In conclusion, Billboard underlines that the artist was able to "re-release the song on iTunes" and even able to "mention Waffle House name in the chorus line," with its new title. Billboard sources say that Waffle House defended themselves from the rapper's discrimination claims by stating that their company has allowed artists such as T.I., Queen Latifah and the like to obtain usage of the company's logo and obtain rights to film movies on company premises. 

Was Waffle House in the right to send a "cease and desist letter" to the rapper and his label? In my opinion Waffle House was in their total right to send the letter. The rapper and the label apparently had not obtained legal permission to use the company logo and or name for the song's content as well as for video taping purposes. In my opinion, which is based on evidence, I feel that the label and the rapper engaged in trademark infringement by not consulting the company on whether they could use the company's logo as well as the company name for their personal music sales. Any personal usage to gain monetary value from a company or product that where one has no legal right, is clearly in violation of that company's intellectual property rights.

Now who is in the right, if an entertainment business created a software or unique product of its first kind and someone else claimed that they had ownership to the product previously? Billboard sources reveal that shortly after its release in the United States, Spotify, a digital music service company "is being sued for patent infringement by the PacketVideo Corporation." Billboard also reported that PacketVideo, who provides "multimedia communications software," alleges that Spotify's introduction to "hybrid technology" is similar to Rolf Brugger's invention, the patent called "Device for Distribution of Music in Digital Form" which was "issued in 1997." states that PacketVideo Corporation's patent is described as "a system that is used for distributing digital music information to a central memory device." According to Billboard, in a recent press release Spotify strongly contests PacketVideo Corporation's claims and states that its product is "highly innovative," and that it also uses "P2P technology." Is there a basis for PacketVideo to sue Spotify? In my opinion, PacketVideo has proof of a patent that is registered and therefore should sue. On the other hand, we have no way of knowing whether Spotify that is, if their product is similar to PacketVideo and if the company had previous knowledge of the patent yet if that is their competitor shouldn't they know that? I think in this particular patent infringement lawsuit, the judge will ultimately look at what is the evidence and decide whether or not PacketVideo is in the right on their alleged claims. 

Artists and entertainment businesses need to not only be "in the know" of how to protect their products and services but also must understand that there are certain steps that have to be taken in order to obtain permissions and licensing when using another artist's content or company's products for their own purposes. By registering products and services to specific intellectual property laws an artist and or business can obtain local, state and federal protection for their products. Entering the entertainment industry without any knowledge of businesses and artists that have a particular song or that have developed current line of products for example could be detrimental to any new artist or business especially if they try to launch a similar product. In any case, taking the proper measures to protect what one deems is his or her artistry in legal means will go a long ways in minimizing the window of potential lawsuits and or other controversies. Have a trade secret or love your slogan? Protect your craft and obtain legal protection so that you get the rights you seek. If you don't do it, someone else will have the power to rightfully claim your innovation or craft.