Law on the Row

New home of Law on the Row

2011-03-21T13:40:00.002-05:00

The official home of this blog is http://lawontherow.com. I have been updating the new site regularly and have posted a tremendous amount of new content and links. I appreciate your patronage over the years. and would appreciate it if you check ou the new site.

Warner Music Group's Reports Quarterly Report Signals Future Trends

2011-02-21T15:56:00.001-06:00

By Nathan Drake & Barry Neil Shrum

Warner Music Group's ("WMG") year-end financial reports for 2010 came as little surprise when you take into account two factors: (1) the general economic downturn in the U.S. and (2) the continued piracy in the global music industry. See the report on WMG’s website here. WMG has been the third largest record company in the world since at least 2004, when Time Warner spun off its music-related components. WMG’s stock was trading at $5.92 per share as of the date of this posting, 2/21/2011.

Although WMG posted positive revenue returns in the third and fourth quarter of 2010, WMG claims that total revenue in 2010 decreased sharply as compared to 2008 and 2009. This represents the eighth straight quarter that WMG has posted decreased earnings, a trend that is concerning to many in the music industry. To wit, the demise of EMI Music - currently No. 4 in the music world - as it crumbles under the weight of its massive debt, is a poignant lesson to WMG - and to Universal Music Group and Sony BMG (Nos. 1 and 2 respectively) - that no music conglomerate is immune to hardships and winds of change currently facing the music industry. The wide moat of physical sales that once protected the record labels’ castle from ultimate destitution now fails to provide a comfortable defense.

As a result, a new kind of business model has emerged on Music Row and throughout the music industry, and this business does include “traditional model” involving radio marketing or “physical distribution/sales.”. Rather, ingenuity and innovation include the most pertinent qualities of this business model. See my post, New Formula for the Music Industry. And though the "major record labels" while may be slow to adapt, revenue losses like those reported by WMG, is quickly teaching the behemoths that transformation is essential if they want to stay afloat and competitive in today's music market. There are constant rumors afoot in Nashville that several of the major labels are shifting away from the traditional type deals toward more reasonable, tech-savvy and partnership-based approaches that fit the model better.

According to WMG's reports, released on February 8, 2011, revenue totaled $789 million for the fourth quarter of 2010. Even though it reported positive cash flow for the fourth quarter, the reported revenue represents a 14% decline from the 4Q 2009. The impact of this comparative decline becomes clearer when you compare the reported digital revenues for WMG for the same periods. Digital revenue for 4Q 2010 accounted for a staggering 25% of the total revenue, or $187 million. This total represents an increase from the $184 million in digital revenue reported 4Q 2009. Thus, it is obvious that digital revenue continues to be an integral, and fast growing, aspect of the business model for record labels.

The growth in digital revenue and the effect it has had on WMG’s revenue stream is also highlighted in the international sales posted by the company for 2010. While domestic recorded music digital revenue declined 3% in 2010, international recorded music digital revenue grew 12.3% during the same year. International digital purchases of recorded music accounted for 19.7% of total revenue in 4Q 2010, increasing from the previous year’s quarterly earning of of 14.6% in the same sector. WMG’s figures show that marketing internationally provide great opportunities for augmentation, at least for the time being.

The impact of these trends in the music business on the future business model of WMG is also evident from the report for those willing to consider them. First, the news reported by WMG that it is hiring Goldman Sachs to investigate and explore the potential sell of the company offers tremendous insight. WMG has also proposed the option of selling only portions of the company in an effort to alleviate the debt and mere size of the company. Going in totally the opposite directino, a third proposed option in consideration is that WMG would acquire its struggling little sister, EMI Music. According to 2009 Nielson SoundScan® sales figures for each of the major conglomerates, the acquisition of EMI would position WMG as the largest record label in the music industry, with 32.72% of the U.S. market share, leapfrogging both UMG and Sony BMG to take the crown.

As noted earlier, EMI is the fourth largest music conglomerate, representing some of the largest acts in music today, including Katie Parry, Coldplay and Radiohead. Despite its stable of well-known artists, Terra Firma, EMI's current owner, has been treading water for almost a year now to to repay CitiGroup, from whom it borrowed millions to acquire EMI a mere 2 ½ years ago. But as the repayment prospects for EMI are beginning to dim, as they reported massive losses of nearly $2.5 billion last year. So, while things may look gloomy for EMI, Warner Brothers views EMI's plight as an opportunity to expand its catalog and artist repertoire. An opportunity of this magnitude is rare; therefore, acquiring EMI yields the potential for Warner Brothers to transform itself into a more profitable and diverse music industry conglomerate. I’m sure EMI hopes the third time is the charm here.

So, the music industry continues to morph and adapt into something that will not resemble the traditional "record label" models of the past. Gone are the days when such conglomerates are the only ones who will be able to produce multi-platinum superstar artists, sold through radio marketing and mass retail distribution on which they have a stronghold. The days of the Internet revolution are upon us and the industry is starting to see its effects. This drama will continue to play out over the course of the next few years.

My co-author, Nathan Drake is a senior at Belmont University from Northville, Michigan who graduates in May with a degree in Music Business from the Mike Curb School of Music Business. Nathan currently clerks for Mr. Barry Neil Shrum, Esquire at Shrum & Associates in Nashville, Tennessee. He plans on pursuing a law degree after graduation. Nathan is author of his own blog entitled “My Thoughts.”

Four – initial thoughts on the new iPhone 4.

2010-08-04T15:37:00.001-05:00

My belated Father’s Day gift this year was a brand, spanking new iPhone 4 32mb! So, now that I’ve been using it for about two weeks, I decided to share my thoughts and insights, particularly since I’ve previously blogged about my love/hate relationship with Apple and the predecessor phones. I am a staunch Windows 7 user, and have my doubts about the seriousness of anyone who uses the Apple operating system! Just kidding really.

Without a doubt, the first thing you notice about the new iPhone is the superior clarity of t he 960x640 screen. It’s brighter, fonts are clearer, pictures more vibrant and, overall, it’s simply much more impressive. Don’t’ take my word for it, hold one up next to your old iPhone and you’ll see the difference instantly. The 480x320 screen on the older phones appear almost muddy by comparison. Apple doubled the pixels per inch, and it shows. They also increased the contract ratio to 800:1. In the end, the resolution upgrade alone is worth the price of admission!

The next design element I noticed was the shape. The new iPhone 4 is very distinct from its predecessors in its very UN-zen-like feel, stepping toward a more “slate” type approach. That can be either a good or bad choice, depending upon your perspective, and how much you liked the original Zen-like design. I personally really liked the “Zen Stone” feel of the original, with it’s rounded back and corners. My previous model was the white 3g (oh, sorry Apple, I probably shouldn’t mention the “white” right now huh?). That said, the new shape and feel have grown on me and I actually like the new aesthetics, although it did take some adjustments in my holding style. The new model is much starker, with metal edges, creating an almost industrial feel (the very same edges that give the iPhone 4 it’s trademark reception problems). The phone is more slender than its predecessors as well, which gives the misleading appearance of a smaller screen. It’s not – actually they are identical in size at 89 mm. The edges also give the appearance that the 4 is thicker than its ancestory. Again, it’s not. It’s actually shaved thinner - 2 mm to be precise!

Putting aside the incredible screen, the next real beauty of this new model is the software revisions. Many of my faithful readers will recall my constant berating of Apple about the lack of multi-tasking, something the very first Palm Pilots could pull off with ease. So, how many years and version upgrades have we been through? Having poked at the giant enough, I will state unequivocally that Apple’s implementation of this mission critical component is very well done. Two clicks on the home button and up pops a menu at the bottom showing all running applications and allowing you to move between them. One can, for example, read a book and take notes, or time a runner and jot down the time. I know, these seem like simple, ordinary tasks, but try that on an older iPhone! One feature of multitasking that would be an improvement in future version, however, is the ability to shutdown all applications without having to individually close them. After several hours of use, the multiple applications begin to pile up and exhaust valuable resources. But, that caveat expressed, I am SO happy to have multi-tasking on my iPhone. I was beginning to miss those days with my Palm.

Another one of my expressly desired features that did NOT appear on this new model is the week view in the calendar. It might sound like a petty request, but in the business world, many people rely on the week view for advance planning and scheduling. And please, don’t tell me about the “List” view - a more useless apparatus I have never witnessed – it is simply not a replacement for the week view! Ironically, Apple HAS implemented the weekview feature on its enigmatic iPad. I was so put out when I found this. “So, why can’t I have it too?” I asked The “Genius” at the store. She tells me it is planned for a future version, but I don’t know if I trust The Genius. Apple’s sin is further amplified by the fact that because of its proprietary philosophy it will not allow third party software designers to access the code to their precious default programs, so no one can even design a work around! Pocket Informant has a beautiful weekview in its application, but you are relegated to using Google Calendar, not the Apple default. So, this complicates issues with Exchange servers and is not a good work around. Ok, so enough of my bitching, let’s get back to the many things I LIKE about the 4!

Let’s talk folders! Another sadly missing item was rectified by the new operating system by the addition of the foldering system. Now, instead of 10 or so unorganized pages containing a hodge podge of programs, I have one main screen with my most utilized programs, and a page and one half of folders! An organizational system in a Personal Information Manager, imagine that! It’s truly great.

There are, of course, many other wonder additions on the iPhone 4 – the 5 mp camera and front facing camera, video conferencing, gyroscope, etc. -- but these are my initial thoughts.

Over the next few months, I will be sharing some of my favorite applications on the iPhone with you, but suffice it to say that the new iPhone is working out quite nicely. I highly recommend an upgrade if you’re considering it and/or are waivering. There is a a good comparison at Wikipedia.

TIVO v. ECHOSTAR

2010-05-19T17:00:00.001-05:00

Editors Note: The following is a research paper from one of the students in my Entertainment Law & Licensing class I teach at Belmont University’s Curb School of Music.

By G. GRANT GUINANE

On July 30, 1998 Tivo Inc. registered a patent for their multimedia time warping system that allows a user to store selected television programs while simultaneously watching or reviewing another program. They patented their process for making this then phenomenon so as to protect their discovery and to become the exclusive financial beneficiaries of this technology. In 1999 it was announced by Dish Network that along with their affiliate Echostar would soon have the time shifting abilities that Tivo was spearheading. This was the warning sign of what would end up being years of court battles between Tivo and the Echostar-Dish Network team.

Tivo filed suit for patent infringement in January of 2004, once they realized that the patent they obtained was being violated, to seek financial retribution and an injunction against Echostar to halt the production of infringing DVR systems that they were producing. Tivo alleged that Echostar was infringing two software claims, “The process for the simultaneous storage and play back of multimedia data, and the apparatus as well” (Tivo v. Echostar, 2). In addition to the software claims, Tivo asserted that Echostar was violating their hardware patent as well.

The suit was first filed with the United States District Court for the Eastern District of Texas. The court found Echostar to be in violation of both claims by Tivo. The judge issued a permanent injunction against EchoStar ordering them:

(1) to stop making, using, offering to sell, and selling the receivers that had been found infringing by the jury and (2) to disable the DVR functionality in existing receivers, with the exception of select receivers that had already been placed with its subscribers”

(Tivo v. Echostar, 3). In addition, the court awarded Tivo $74 million in lost profits.

At that time, Echostar did not appeal the permanent injunction imposed by the court, but it also did not discontinue providing the DVR service. In response, Tivo requested that the district court hold Echostar in contempt. Echostar claimed that it redesigned its product so that it was not infringing any longer.

The district court evaluated EchoStar’s modifications to the infringing DVR software and concluded that the modifications were also infringing. The court concluded

Even if EchoStar had achieved a non-infringing design-around, EchoStar would still be in contempt because it had failed to comply with the disablement provision in the district court’s order requiring it to disable DVR technology completely from the receivers

(Tivo v. Echostar, 4-5).

Dish and EchoStar had argued that it was entitled to a trial to determine if its altered products infringe the patent. The company said it “paid 15 engineers to spend 8,000 hours on the redesign, which took a year” (Decker and McQuillen). Tivo argued against this point saying that the changes made to their DVR players do not make a “colorable” difference.

The court agreed with Tivo stating,

We have made it clear that a lack of intent alone cannot save an infringer from a finding of contempt”

( Tivo v. Echostar, 12).

Echostar claimed that the injunction was unclear, but Tivo claimed the opposite and the record of the court reflected the clarity of the injunction. Also important to note is that the DVR’s time warping software was the only aspect of the boxes required to be disabled; not all of the actual units and hardware, the DVR functionality is just one of many functions that the Echostar Broadcom and 50X receivers performed. Since Echostar never directly appealed the injunction it was judged as a lost cause for them and the court fined them nearly $90 million and amended the previous injunction requiring EchoStar to seek the court’s approval before implementing future DVR software.

The final decision by the Federal Court of Appeals was to uphold the decision made by the district court in a divided 2-1 decision. TiVo said it will be entitled to a total of about $300 million in damages and contempt sanctions through July 1, 2009, and it will seek additional cash for continued infringement after that date. That’s in addition to $100 million Dish paid TiVo after the original appeals court ruling (Decker and McQuillen). While it is a victory for Tivo, they only got a portion of the $1 billion they were seeking.

This case made a huge impact on the DVR industry as well as Tivo’s stock, which skyrocketed following the May 4^th decision by the federal court. Tony Wible, an analyst with Janney Montgomery Scott LLC in Philadelphia, wrote in a note today. “The courts have ruled in TiVo’s favor numerous times over the past five years, which should help the company in the company’s litigation against AT&T, Verizon and Microsoft” (Decker and McQuillen).

It is a good that courts are protecting intellectual properties such as Tivo’s patent in this case, so as to discourage the stealing of ideas and encourage the promotion of innovative thinking. The court’s decision to find EchoStar in violation was a good decision, as Tivo should be the sole beneficiaries of their intellectual property, i.e., the patent.

To play devil’s advocate, however, such decision does stifle competition in the industry, namely, EchoStar was the only true competing DVR provider with any clout. Generally speaking, it is not good to promote a monopolist environment in any industry. This is essentially the state of the DVR industry until Tivo’s patent expires in 2018.

This decision confirms the principal that the twenty years of exclusive ownership granted by patent law is a positive thing—without that right someone could easily profit off of another’s innovation and inventive nature. It is reassuring to see that judges like those in this case are still interested in the protection of important intellectual discoveries such as Tivo’s time warping technology. It also also reinforces the fact that courts will enforce their injunctions against parties and do not take it lightly when a defendant tries to skirt the injunction or slyly work around it. EchoStar’s was penalized an extra $90 million because they tried to do things their own way and work around the court.

These proceedings took over five years, but Tivo still has many legal proceedings ahead of them, probably enough to last the entirety of their patent ownership and beyond! Nonetheless, the EchoStar decision is the most positive sign that Tivo could have received in the midst of the myriad of legal battles they are still facing. This case proves that if one want to protect valuable ideas and methods they had better be ready to fight tooth and nail in the court system for years on end—luckily the reward can be great.

Works Cited

Tivo v. Echostar. No. 2009-1374. U.S. Court of Appeals for the Federal Circuit. 4 March 2010.

Decker, Susan, and William McQuillen. "TiVo Wins Court Ruling Against Dish, EchoStar (Update4)." Businessweek.com. Ed. David E. Rovella. Bloomberg, 4 Mar. 2010. Web. 11 Apr. 2010.

Grant Guinane is a recent graduate of Belmont University. He obtained a B.A. in Entertainment Industry Studies with a focus in writing and music, as well as a minor in marketing. Originally from St. Joseph, Michigan, Grant came to Nashville to pursue music. He currently lives in Detroit, Michigan.

The Limewire Ruling: New King of the Hill for Illegal Downloading Decisions

2010-05-13T13:58:00.001-05:00

The U. S. District Court for the Southern District of New York ruled against LimeWire and its parent company, Lime Group, finding them liable for inducement of copyright infringement based on the use of their service by subscribers.

U.S. District Judge Kimba Wood issued the 59-page decision Wednesday, siding with the 13 record companies that sued Lime Wire LLC and founder and Chairman Mark Gorton through the RIAA claiming copyright infringement and unfair competition.

In finding the company liable, Wood opined that LimeWire had optimized its application to "ensure that users can download digital recordings, the majority of which are protected by copyright," and that the company actively "assists users in committing infringement." Wood also found that the defendants knew their technology was being used to download copyrighted tunes and took no "meaningful steps" to prevent the infringement. In addition, Lime Wire marketed its software to people "predisposed to committing infringement" and assisted those people, the judge ruled.

Major labels, as represented by the RIAA, were predictably thrilled with the outcome. "This definitive ruling is an extraordinary victory for the entire creative community. The court made clear that LimeWire was liable for inducing widespread copyright theft," RIAA chairman and CEO Mitch Bainwol relayed.

Lime Wire Chief Executive George Searle issued a statement saying the company "strongly opposed the court's recent decision." The statement continued:

"Lime Wire remains committed to developing innovative products and services for the end-user and to working with the entire music industry, including the major labels, to achieve this mission," Searle said.

Searle did not say whether Limewire would appeal the ruling.

The Recording Industry Association of America proclaimed the decision was "an important milestone" in the battle against online copyright infringement, because Gorton was found personally liable, in addition to the company of which he was the chairman. Personal liability against a corporate director is rare.

"The court has sent a clear signal to those who think they can devise and profit from a piracy scheme that will escape accountability," Mitch Bainwol, chairman and chief executive of the RIAA, said in a statement.

LimeWire, launched in 2000, is one of the largest remaining commercial peer-to-peer services left on the Web. The company claims to have more than 50 million monthly users. The company has managed to defend itself against major label legal action for years.

In issuing her opinion, Wood relied heavily on the 2005 Grokster ruling, in which the Supreme Court said that a file-sharing service was liable when customers were induced to use it for swapping songs and movies illegally. The test established by the Supreme Court in MGM v. Grokster for provider liability is whether the company actively induced users to commit infringing activities. While LimeWire argued that it did not, Judge Wood noted that the company actively “markets LimeWire to users predisposed to committing infringement.”

The record companies that sued Lime Wire included Arista, Atlantic, BMG Music, Capital, Elektra, Interscope, LaFace, Motown, Priority, Sony BMG, UMG, Virgin and Warner Brothers.

The Lady’s not Gaga anymore!

2010-04-15T10:25:00.001-05:00

Written by guest blogger, Joshua Johnson

Producer/songwriter Rob Fusari recently filed a $30.5 million lawsuit against Team Love Child, LLC and Mermaid Music, LLC, two companies co-owned by the Grammy Award-winning pop star, Stefani Germanotta, professionally known as Lady Gaga, currently a very popular and controversial pop artist.

The complaint alleges that Lady Gaga “froze” him out of her career and is reneging on their business arrangement despite the fact that he played a pivotal role in launching her career in the early years – i.e., co-writing songs, creating her stage name, and helping her obtain her record deal with Interscope Records. Specifically, the suit alleges claims of breach of contract and fiduciary duty.

In the facts, Fusari claims to have worked with Germanotta for several months in “radically reshaping her approach” as an artist, shifting her from rock to dance-pop. While Germanotta and Fusari were co-writing important songs like "Paparazzi" and "Beautiful, Dirty, Rich" for her debut album, Fame, Fusari would greet Germanotta with his rendition of Queen’s “Radio Ga Ga.”

According to the lawsuit, this is how Lady Gaga's name was created:

“One day when Fusari addressed a cell phone text to Germanotta under the moniker 'Radio Ga Ga,' his cell phone’s spell check converted ‘Radio’ to ‘Lady.’ Germanotta loved it and ‘Lady Gaga’ was born.”

In response to this claim, Germanotta, stated:

"The realization of Gaga was five years ago, but Gaga's always been who I am…I always dressed like that before people knew me as Lady Gaga. I was always that way...I stuck out like a sore thumb."

The lawsuit further claims that Lady Gaga and Fusari's relationship turned romantic and then ultimately became a business partnership in May 2006. It was around this time that they created Team Love Child, LLC. In the formation of this joint venture, Fusari and Germanotta agreed to allow Fusari to collect producer fees in addition to 20% of the earnings from Germanotta's first four albums. While Fusari acknowledges that he received checks totally approximately $611,000, he nonetheless claims that he has been denied what the Team Love Child, LLC agreement entailed. Essentially, the lawsuit is mainly fighting for the aforementioned agreement.

Last month, Germanotta's attorneys fired back at Fusari by filing a second lawsuit in Supreme Court of the State of New York. The suit claims that the Team Love Child, LLC contract with Fusari should be deemed null and void because, among other things, Fusari forced Germanotta into the agreement. Supporting argument include that the agreement violates employee protection laws that prevent "predatory and financial abusive practices by employment agencies” and that Fusari is attempting to collect “unlawful compensation.”

Alternatively, if the court does not nullify the agreement, the complaint seeks a declaration that Fusari is only entitled to a percentage of net compensation, that he is not entitled to a percentage of merchandising income, and that he Lady Gaga is not required to use him to produce future albums.

This case is ongoing and Fusari's answer in the latter case has not yet been filed.

The Lady Gaga complaint can be downloaded here.

Josh is a Knoxville, Tennessee native who attends Belmont University’s Mike Curb School of Music Business. He is currently a student in Mr. Shrum’s Entertainment Law & Licensing class. Upon graduation in May 2010, he and his wife, Nicole, plan to devote all of their efforts in pursuit of their music career as folk/pop duo, Elenowen.

Slightly Off-key “Voice of a Generation”

2010-02-12T16:37:00.001-06:00

A little history:

February 22, 1990: Pop sensations Fabrice Morvan and Rob Pilatus, a/k/a Milli Vanilli, who achieved international acclaim as a result of their Arista release, Girl You Know It’s True, win the Grammy for “Best New Artist.” Soon, the rumors began to swirl that Morvan and Pilatus were not actually singing on the records as had bee n reported in the press. So intense were these rumors that on November 12 of that same year, Frank Farian, creator and producer of the Milli Vanilli project, confessed that Morvan and Pilatus did not actually sing on the records. Four days later, Milli Vanilli’s Grammy was “withdrawn,” and Arista dropped them. After the details emerged, the controversy spurned over 26 different lawsuits across the country under various consumer protection laws.

Early 1992: New Kids on the Block’s song If You Go Away peaks at #16 on Billboard as an associate producer on one of their earlier albums allege that the band lip-syncs to performances by Maurice Star, and that Star actually sang many of the parts on their albums. As the story develops, the band cuts short a tour to appear on The Arsenio Hall Show to perform a medley of their hits. During the subsequent interview, the band admits to using Star’s vocals as a backup track during their live performances, and admit that Star sang harmonies on some of their background vocals. The band never recovered from the backlash, and their record sales steadily declined from that moment.

November 6, 2009: Hundreds of angry fans in Perth, Australia, walk out of Brittany Spears’ Circus concert when it becomes apparent that she is lip-syncing to her songs.

Fast forward to:

January 31, 2010: Taylor Swift wins four Grammys: Album of the Year and Best Country Album for Fearless, Best Female Country Vocal Performance and Best Country Song for White Horse. Swift, who is by all accounts an extremely talented songwriter, gave a stunningly weak vocal performance during her duet with Steve Nick’s that drew starkly negatives reviews from professionals and amateur press/bloggers alike. For example, Bob Lefsetz described her performance as “dreadful” and opined that she may have single-handedly imperiled her career with this one performance. The general consensus is that her Grammy performance is not an isolated incident. Truth is, most professionals in Music City are aware of Swift’s inferior vocal talents – almost every conversation about Swift in this city includes one or more references to “auto-tune” technology.

The query then is this: is there a significant difference between a digitally-created rendition of a vocal performance and using a superior vocal performance from an singer who is not marketable to front a more attractive and marketable duo, a/k/a Milli Vanilli or to using a backup track (even of your own vocal as in Spears’ case) to enhance your live performance. Isn’t the former example simply a modern, technological replacement for the latter? If so, then the question becomes why is today’s society not as outraged at Taylor Swift as past society was at Milli Vanilli, New Kids and Spears?

In his response to criticism of the Grammy performance, Scott Borchetta, president and CEO of Swift's record label Big Machine Records, offers this explanation for this discrepancy:

Maybe she’s not the best technical singer, but she is the best emotional singer. Everybody gets up there and is technically perfect people don’t seem to want more of it. There’s not an artist in any other format that people want more of than they want of Taylor. I think (the critics) are missing the whole voice of a generation that is happening right in front of them. Maybe they are jealous or can’t understand that. . . . No one is perfect on any given day. Maybe in that moment we didn’t have the best night, but in the same breath, maybe we did.

Borcetta gets no argument from almost anyone I know in the industry that perhaps Swift is not the best technical singer. But I’m not sure the explanation that Swift is the “voice of a generation” does much to address the underlying issue: The Grammy for Best Female Country Vocal Performance went to singer who, even her label head admits, is not the best technical singer! Swift’s Fearless live performance tour is sold-out! In her defense, Borchetta goes on to say “If you haven't seen her live performance, you're welcome to come out as my guest to a Taylor Swift show and experience the whole thing, because it's amazing.” But if the show’s audio is auto-tuned, how does this amazing experience differ from a Brittany Spears’ lip-synced performance, if at all? Let’s not forget, in their days, the fans also “wanted more” of Milli Vanilli, New Kids on the Block and Brittany Spears.

Someone else once phrased it this way:

“It’s not about being authentic anymore, it’s about being entertaining.”

Interestingly, this was a quote from Morvan of Milli Vanilli in a USA Today article in 2010. Morvan goes on to say

“Twenty years later, what we were crucified for you see everywhere.”

He right, is he not? Let’s be honest. In America, at least, pop music has almost always produced a certain amount of, shall we call it, “manufactured product” - performers who were either assembled, created or otherwise the entertainment value. My first disillusionment with this came in the form of The Monkees when I discovered that they were a band “assembled” by Bob Rafelson and Bert Schneider as an American “Beatles” alternative, i.e., as a means of capitalizing on the success of the Beatles. As technologies become more and more sophisticated, this trend toward entertainment value over authenticity is naturally going to increase. It used to be a little more difficult to go back and “overdub” a particular performance which was out of tune or offbeat, because the engineer had to physically rewind the tape, record the alternative part on a separate recording track, and then sync the new part into the old one. A bit more time consuming. Now, we have software which can independently correct not just the pitch, but an isolated note out of a chord which may be out of tune for one reason or another. It’s a matter of moving the mouse over the note, highlighting it, and correcting it. Wow!

I suppose the real question, then, is what do we want from our performing artists, whether it be a live performance or a recorded one? For me, I think I prefer simple honesty. Or, as Milli Vanilli ironically put it, “authenticity.” I like to hear performers with technically superior skills performing the music they created. I do agree with Borchetta that everyone is not perfect, and that many people prefer a live performance that has the feel of being non-technical. After all, who can forget that off key guitar note at the end of the Allman Brother’s recording of Statesboro Blues (a note which they DO NOT replicate in a live performance), or some of John Bonham’s almost syncopated rhythms on Black Dog? Those are authentic performances by persons with superior, technical skills. And this is precisely where I think where I differ from Borchetta: I personally think most people do expect their celebrities to be technically superior, at least with regard to their perceived talents.

Judging from prior examples such as Milli Vanilli and Brittany Spears, and the audiences’ reaction to those performers, people have an expectation that an artist will be able to actually perform the music that was marketed to them through the media. In other words, most people expect their performers to be authentic. Now, maybe Borchetta is correct, that Swift is, in fact, an authentic person who can communicate well through her gift of songwriting - again that’s not the real issue. The real issue is that Swift is portrayed as more than a songwriter, she is portrayed as the performer with the “Best Female Country Vocal Performance.” The fact is, Duane Allman, although he might hit an off key note once and awhile, was a technically superior guitarist. John Bonham, even though that one performance might fade slightly off the beat for a brief moment, was a technically superior drummer. However, no matter how many tours she sells out and no matter how many millions of CDs she sells, Taylor Swift, while an amazingly-talented songwriter, will never be a technically superior vocalist. Not to worry, though, she will most certainly always be the slightly off-key voice of a younger generation of admirers. Or will she. Time will tell I suppose. But lest we put too much stock in past success as an indicator of future fan support, don’t forget, Milli Vanilli’s record was also multi-platinum.

The Music Row Show and the “Do it Yourself” Artist

2009-06-15T14:45:00.001-05:00

I really enjoyed being on The Music Row Show on 1510 WLAC last evening with Scott Southworth. I love their motto, “two guys fumbling their way through the music business, so you don’t have to!”

If you didn’t catch the show (you should be able to download the podcasts from their website in a few days), Scott and I had a very enjoyable discussion about the future of the music industry and the idea of the “do it yourself” generation of musicians, artists and songwriters which has become my focus and mantra of late. I believe that with today’s technological advances – the iPod/MP3 player, ProTools, Macbooks, the Internet etc. – entertainers have the ability to do it themselves in ways never before possible. The days when you absolutely needed to record deal to reach the fans is absolutely behind us. As I said on the show, I do not believe that major labels are a thing of the past. They have provided us with great music for years and will continue to play a vital, although probably modified, role in the development of new talent. My point is simply that the alternate pathways are becoming more and more fruitful and plentiful.

During the show I brought up some ideas along these lines that I had read and heard about which involved some not-so-famous musicians/artists who have done just that - found a way to connect with their fans in unique ways and give them a reason to shell out some money for their product. This idea is not unique to me, it grew out of an analysis of the Nine Inch Nails experimentsby Michael Masnick, who is the editor of the Techdirt blog and gave the keynote address from the 2009 Digital Summit, which you view here.

After Masnick gave a shorter version of this talk at Midem, people complained that Trent Reznick was a product of the record industry and, therefore, the experiment would not necessarily work with independent artists. So, for thie keynote in Nashville, Masnick added in two examples of independent artists who were sucessfully selling product without the add of the marketing machines:

The first was Josh Freese. Mr. Freese had a rather significant following of fans and found a very creative and unique way to generate sells of his new album “Since 1972” from that fan base. For some laughs, click on the link above and look at the variety of offerings. A few of my favorite offering is the $50 level which, among other things, buys you a “thank you” phone call from Freese. The $2,500 level buys you not only an autographed copy of the CD, but a drum lesson from Mr. Freese, a trip to the Hollywood Wax Museum with a member of the Vandals or DEVO, a signed DW snare drum and three items from his closet! He sold two of these packages! The $10,000 package includes the autographed CD and Snare Drum, but also includes a day with Freese at Club 33 and Disneyland, after which you get to drive away in his late-model Volvo (you have to drop him back home first)! No takers on that one yet.

The second is the artist whose name I could not for the life of me remember last night during the radio program, but is Jill Sobule. When she wanted to record an independent album entitled “California Years” back in 2008, she established the website www.jillsnextrecord.com in order to raise the money necessary to produce the record. On the website, she offered varying levels of support, from the “Pewter” $50 level, which buys you a “thank you” on the CD liner, all the way up to the $10,000 “Weapons-Grade Plutonium Level” which buys you the right to sing on the album and play cowbell (Good guess Scott!). Other interesting ideas are the $2,500 Emerald level, which gives your “executive producer” credit on the album or the $5,000 Diamond level which bought you a “house concert” from Jill and the right to charge admission! She actually sold 2 and 3 of these levels respectively. Ms. Souble had originally budgeted $75,000 for production and distribution and eventually raised all of that and them some. For a full tally of the more than $88,000 she raised through this effort, here is her “tote board.”

Masnik’s point in the keynote address, and the model he derived from Trent Resnick’s NIN experiment, is that you must “Connect with the Fans” (or CwF) and give them a “Reason to Buy” (or RtB). Thus, the equation is CwF+RtB = $$$$$. This is the point I made on the radio program last evening – artists need to determine who their fan base is and find a way to connect. Through that effort, the goal is to create an e-mail database of those fans so that you have a way to communicate with them (whether it be by e-mail blast, Twitter, MySpace, Facebook or whatever). Once you’ve connected, the second step is to find a creative incentive that gives them a reason to buy. As readers of my blog will remember, I’ve been preaching this stuff for years. Stay tuned for more ideas!

Technorati Tags: Do it Yourself,Musicians,Artists,Major Labels,Entertainment Lawyer,Music Lawyer

In Memory of Barry Beckett – 1943-2009

2009-06-11T10:34:00.001-05:00

Barry Beckett, renowned Nashville producer and longtime musician, passed away last evening, further dampening, in conjunction with heavy downpours, the opening day of the 2009 CMA Music Festival.

Beckett was a fellow Aquarian, born February 4, 1943 in Birmingham, Alabama. He was a noted keyboardist and musician, perhaps best known as a member of the Muscle Shoals Rhythm Section which created the “Muscle Shoals Sound” as part of the recording sessions produced by Rick Hall in the Fame Recording Studio.

Beckett can be heard on various hits from the famous Stax Records (e.g., the Staple Singers' "I'll Take You There”) as well as playing keyboards on my favorite Paul Simon tune, the 1973 pop hit "Kodachrome." As a A&R rep for Warner Nashville in themid 80’s and later as a producer, Beckett touched the careers of many notable artists, including Hank Williams, Jr., John Prine, Mary MacGregor, Alabama, Kenny Chesney, Bob Dylan (“Slow Train Coming”), Neal McCoy, Glen Frey, Bob Seger, Delbert McClinton, Joan Baez, Dire Straits, Joe Cocker, Lorrie Morgan, Confederate Railroad, Phish. A partial discography can be found here and here.

He was inducted into the Alabama Musicians’ Hall of Fame in 1995. Among other things, Barry enjoyed building model railroad track layouts when not producing hit records. He, and the music he continued to produce, will be severely missed in the Music Row community and well beyond.

Technorati Tags: Barry Beckett,Nashville,Producer,Bob Dylan,Paul Simon,Kodachrome,Kenny Chesney,Confederate Railroad

The Business Phone that Could (have)

2009-06-03T15:13:00.001-05:00

Once upon a time, there was a shinny new device called the iPhone that tried to climb up the mammoth hill that is the sole domain of the business smartphone. “I think I can, I think I can,” said the iPhone, and it tried and it tried, but alas, it could only make it up about half way, and then it sputtered and. . . . The end of this story cannot be written.

Obviously, you probably figured out by now that I have fallen victim to the allure driven by the site of all of my business associates who were sporting shiny black and white, Zen-like devices with colorful icons. Yes, I bought an iPhone. And while this article may be a bit off topic for my music business oriented blog, anyone who knows me knows that I am a techie through and through and enjoy new gadgets and technologies more than most. Many of my friends call me the guru for good reason. So, here goes.

As a long time fan of Palm, you might wonder why I did not wait for the premier of the Palm Pre. The simple reason is that Sprint service does not reach to my residential area. That was also the reason that, in recent years, I migrated to Windows Mobile, which I grew to love almost as much as the Palm OS. However, finally I was convinced to switch to the dark side and try it with Apple.

My relationship with my iPhone is what I describe as a “love hate” relationship. Yes, there are many many things I really love about the iPhone. I love the way it feels in your hand, almost like a smooth pebble plucked from a lake in the mountains of Japan. As I said in the story above, very “Zen-like.” After all, that is the Apple way isn’t it?

At first I thought the soft keyboard would drive me crazy. Surprisingly, I’m getting used to it and pretty efficient, although I still maintain that a hardware keyboard is much more efficient – something the Palm Pre does beautifully.

For the most part, on the positive side, I really love the web browsing experience. The websites that actually work (more on this later) come up beautifully and quickly. And, as a tech person, I really like the fact that there are scores of programmers writting countless applications for the iPhone. For the most part, the marketing is true, “there is an app for that.” That’s sort of where the “hate” part of the relationship begins, in that shaded area between the “for the most part” and the remaining part of 100%! That’s the part that keeps the iPhone from being a full-fledged business phone.

Recently, Apple has been pushing the idea that the iPhone is the ideal phone for business. There are several flaws with the iPhone which, until remedied, will prevent its widespread infiltration into the lockhold that BlackBerry, Palm and Windows Mobile have on that sector of the market.

So, what I’d like to address in this article is not the scores of more obvious deficiencies that have already been pointed out in the blogs and articles – no native voice dial, lack of full support for Bluetooth, no memory expansion, no cut and paste, no MMS, intolerable battery life, etc. – but the less obvious and definitely serious deficiencies that relate more specifically to a business person’s daily use of a smartphone.

First and foremost, and this has certainly been recognized by others, is the lack of support for Javascript and Flash plug-ins in the built-in Safari browser. If your websites relies on either of these, as my www.musicattorney.biz does, then what the iPhone visitor will see is a blue Lego-style brick with a question mark in the middle (see the illustration). What the hell is that? Unforgiveable, that’s what it is. There’s no other word for it. And all simply because Apple doesn’t like to play nice with its competitors, particularly Adobe. Shame on you Jobs.

Secondly, and this has always been one of my major beefs with Apple, the proprietary, i.e. closed, operating system. Apple’s SDK, as one developer put it, “has more restrictions than Guantanamo.” Developers require a certain level of integration with the OS in order to develop business-class applications to work around the inherent deficiencies in the native iPhone software. But no – Apple is too proprietary for that. This needs to change and quickly.

One perfect example of this is the calendar. For some unknown reason, there is NO WEEK VIEW in the calendar. No week view? I don’t know about most business people, but for me, the week view is the “go-to” view of choice. Yes, I know, there is a “list” view on the iPhone, but it’s not nearly the same thing. To witness the difference for yourself, download the iPhone version of an old Windows Mobile classic, Pocket Informant and look at the week view in that software. Ah, problem solved you might be thinking. Just use the App! Not so quickly: Pocket Informant ONLY syncs with a Google calendar account. Why, you ask? That’s right, because Apple will not allow the programmers to access the base-level calendar on the iPhone and therefore the information in the iPhone’s calendar CANNOT be displayed in beautiful week view of Pocket Informant. Yes, the week view is sort of a sore spot for me. But is iconic, if you’ll allow me the pun, of the fallacy of the proprietary restraints Apple places on programmers. There is absolutely no excuse.

While we’re on the subject of little annoyances, what’s up with dialing the damn iPhone? There is no quick way to get to the dial pad. Duh!!! It is, first and foremost, supposed to be A PHONE. Give us a quick way to access the dial pad! When you press the pretty green telephone icon, you land on whatever segment of the program you happened to be on when you last opened it, whether it be voicemail or recent contacts. You MIGHT get lucky and land on the dial pad. But there’s a one in four shot that you have to press yet another icon to get to the dial pad to, dare I say it, actually make a phone call. IT’S A PHONE!!!!

Since we’re on the subject, looking up contacts is probably a breeze for some MP3 stealing teenager with 25-50 contacts in their address book. When they swipe their pimple-popping finger down the list I’m sure it flows beautifully for them. I, on the other hand, like many other business people, have close to 2000 contacts in my database: not the same “weeeee” experience with the finger-scrolling thingy! There is simply no good way, on the native applications, to search for a contact and quickly dial them. Fortunately, in this instance, there are several app for that developed by people who recognized this deficiency.

Now, getting back to the primary focus of the article, the third annoyance that prevents the iPhone from being a major contender in the business market is the lack of multitasking. That’s right, multitasking. The Palm Pre recognizes and addresses this need beautifully, as does the Blackberry Storm. Both have methods by which you can easily and quickly switch between open programs seamlessly. Not the iPhone. With the iPhone, you must always return to the home screen in order to open a program (if you’re lucky enough to find it on the home screen).

The home screen is designed, once again, for the casual and, dare I say it, younger user. Each program is represented by a cute, colorful icon with neatly rounded edges. Did I say cute? The icon concept works great if you have only a few applications, but if you start to actually utilize the “there’s an app for that” concept and download more than a few pages worth of applications, you soon find that it’s difficult to locate the app you’re look for in any given moment (As an aside, you’ll also find that you are limited to the number of applications you install on the iPhone – nine screens of 16 +4, i.e., 148 applications!). Apple has some smart programmers, why not throw in some “categories” or “tabs” or some intelligent organizational method to use in sorting and filing the icons in manageable clusters?! But no, that’s a little to complex for an Apple, I suppose – there’s absolutely NO file or icon management whatsoever.

While we’re on the subject of wish lists and multitasking, why not allow me to have a “back” button that returns me to my previous program. But no, if I want to look up someone’s phone number or address to include in a calendar event, for example, I have to hit the home key, thereby exiting the calendar, go find the contacts icon, press it, scroll through scores of contacts until I find the right one, then select that contact, memorize the information, exit the contacts program, find the calendar icon, press the calendar icon – OH MY FREEEEEKING *#*#*#!!!!!! Isn’t Apple supposed to be the king of simplicity? Somebody surely missed the boat on this one didn’t they? It IS a simple concept – multitasking. Apple didn’t get it. Multitasking is one of the things that all successful business people have in common.

So, you might be wondering, if I am doing all this complaining, why do I still have and use the iPhone. Well, actually as I said, there are many apps that do service many of my needs – an many that work around some of these issues. For example, I utilize Freshbooks for invoicing with its iPhone app, I use SugarSync for file backup and access it with its iPhone app, I use Jott for dictating quick notes to myself and clients and it has a neat iPhone app, I use eReader for my literary needs, Transactions to get myself paid, Pandora to listen to music, Upvise for my shopping list needs, ReQall for my localized to do list, MyCast for weather, and My Banking online, etc. etc. You get the picture. There are still many programs that fill many of my business needs.

Oh, don’t get me wrong: I could do ALL of these things on my old Samsung Blackjack with Windows Mobile. But certainly the iPhone is, after all, the most recent iconic symbol of high technology and that is, after all, why I ultimately ended up with the iPhone. And it does perform beautifully.

I just hope that Apple has their act together enough to realize that their market is expanding, and in order to expand fully into the business sector, it might have to let go of some of its old methods of doing things. Let the programmers in. Let them design fixes to these flaws. Let them develop an app for that! Until then, in my opinion, the Blackberry Storms and Samsung Jacks of the world will continue to have a foothold in that precious business market that every smartphone desires to dominate. Until then, Apple, repeat after me: “I think I can, I think I can . . . .”

Technorati Tags: iPhone,deficiencies,Windows Mobile,Blackberry

The Business Phone that Could (have)

2009-06-03T14:34:00.001-05:00

Obviously, you probably figured out by now that I have fallen victim to the allure driven by the site all of my business associates who were sporting shiny black and white, Zen-like devices which colorful icons. Yes, I bought an iPhone. And while this article may be a bit off topic for my music business oriented blog, anyone who knows me knows that I am a techie through and through and enjoy new gadgets and technologies more than most. Many of my friends call me the guru for good reason. So, here goes.

For the most part, on the positive side, I really love the web browsing experience. The websites that actually work (more on this later) come up beautifully and quickly. And, as a tech person, I really like the fact that there are scores of programmers written countless applications for the iPhone. For the most part, the marketing is true, “there is an app for that.” That’s sort of where the “hate” part of the relationship begins, in that area between the “for the most part” and the remaining part of 100%!

So, what I’d like to address in this article is not the scores of more obvious deficiencies that have already been pointed out in the blogs and articles – no native voice dial, lack of full support for Bluetooth, no memory expansion, no cut and paste, no MMS, etc. – but the less obvious and definitely serious deficiencies that relate more specifically to a business person’s daily use of a smartphone.

First and foremost, and this has certainly be recognized by others, is the lack of support for Javascript and Flash plug-ins in the built-in Safari browser. If your websites relies on either of these, and my www.musicattorney.biz does, then what the iPhone visitor will see is a blue Lego-style brick with a question mark in the middle. See the illustration. What the hell is that? Unforgiveable. There’s no other word for it. And all simple because Apple doesn’t like to play nice with its competitors, particularly Adobe.

Secondly, and this has always been one of my major beefs with Apple, the proprietary, i.e. closed, operating system. Apple’s SDK, as one developer put it, “has more restrictions than Guantanamo.” Developers require a certain level of integration with the OS in order to develop business-class applications to work around the inherent deficiencies in the native software. One perfect example of this is the calendar. For some unknown reason, there is NO WEEK VIEW in the calendar. No week view. I don’t know about most business people, but for me, the week view is the go-to view. Yes, I know, there is a “list” view – not the same thing. To witness the difference for yourself, download the iPhone version of Pocket Informant and look at the week view. Ah, problem solved you might think. Just use the App. Not so quick. Pocket Informant only syncs with Google calendar. Why, you ask? That’s right, because Apple will not allow them to access the base-level calendar on the iPhone and therefore the information in the iPhone’s calendar CANNOT be displayed in beautiful week view of Pocket Informant. Yes, the week view is a touchy subject for me.

While we’re on the subject of little annoyances, what’s up with dialing the damn iPhone? There is no quick way to get to the dial pad. Duh!@!! It is, first and foremost, supposed to be a phone. Give a quick way to access my dial pad. When you press the pretty green telephone icon, you land on whatever button you happened to be on when you opened the program before, whether it be the voicemail or recent contacts. You MIGHT get lucky and land on the dial pad. But there’s a one in four shot that you have to press yet another icon to get to the dial pad to, dare I say it, actually make a phone call.

Since we’re on the subject, looking up contacts is probably a breeze for someone with 25-50 contacts in their address book. You swipe down the list and it flows beautifully. I, like many other business people, have close to 2000 contacts in my database. Not such a “weeeee” experience with the scrolling thing! There is simply no good way, on the native applications, to search for a contact and quickly dial them. Fortunately, in this instance, there is an app for that.

Now, getting back to the primary focus, the third annoyance that restricts the iPhone from being a major contender in the business market is the lack of multi-tasking. That’s right, multi-tasking. The Palm Pre recognizes and addresses this need beautifully, as does the Blackberry Storm. With the iPhone, you must always return to the icon screen, which is, again, designed for the casual user. The icon concept works great if you have only a few applications, but if you start to actually utilize the “there’s an app for that” concept, you quickly find that it’s difficult to find the app you’re look for. You also will find, by the way, that you are limited to the number of applications you install on the iPhone – nine screens +4 only! Apple has some smart programmers, why not throw in some “categories” or “tabs” or some intelligent organizational method! No file or icon management whatsoever. I don’t ask for much.

While we’re on the wish list, why not allow me to have a “back” button, to return to my previous program. But no, if I want to look up someone’s phone number or address to include in a calendar event, I have to hit the home key, thereby exiting the calendar, go find the contacts icon, press it, scroll through scores of contacts until I find the right one, then select that contact, memorize the information, exit the contacts program, find the calendar icon, press the calendar icon – OH MY FREEEEEKING *#*#*#!!!!!! Isn’t Apple supposed to be the king of simplicity? Somebody surely missed the boat on this one didn’t they? It is a simple concept – multitasking. Apple didn’t get it.

So, you might be wondering, why do I still have and use the iPhone. Well, actually as I said there are many apps that do service many of my needs. I utilize Freshbooks for invoicing, SugarSync for file backup and access, Jott for quick notes to myself, Google for directions, eReader for my literary needs, Transactions to get myself paid, Pandora to listen to music, Upvise for my shopping list needs, ReQall for my localized to do list, MyCast for weather, Banking online, etc. etc. You get the picture.

Don’t get me wrong. I could do ALL of these things on my old Samsung Blackjack with Windows Mobile. But certainly the iPhone is, after all, the most recent iconic symbol of high technology. I just hope that Apple has their act together enough to realize that their market is expanding, and in order to expand fully into the business sector, it might have to let go of some of its old methods of doing things. Let the programmers in. Let them design fixes to these flaws. Let them develop an app for that! Until then, in my opinion, the Blackberry Storms and Samsung Jacks of the world will continue to have a foothold in that precious business market that every smartphone desires to dominate. Until then, Apple, repeat after me: “I think I can, I think I can . . . .”

Technorati Tags: iPhone,deficiencies,Windows Mobile,Blackberry

My Appearances on WSM Radio

2009-05-18T16:57:00.001-05:00

For the last several weeks, I have enjoyed being a guest host on Malcolm West’s live radio program, Race Night. It’s a weekly show that airs on WSM 650 AM from 7-9 p.m CST. The show is broadcasted into over 37 states and, as Malcolm quips, two outhouses! It reaches over 150,000 listeners.

The show is very unique: it consists primarily of Malcolm’s commentary and responses to callers regarding the evening’s NASCAR race. However, interspersed in the NASCAR theme are musical elements, including special featured guests who are prominent songwriters, entertainers and music industry veterans. I was introduced to the show by my good friend and banker, Lisa Harless of Regions Bank.

Malcolm asked that I participate in the music industry portion of the evening to give an entertainment attorney’s perspective. I’ve had the pleasure of participating in live interviews with Malcolm’s musical guests Jessica Miller, Buffalo Rome, Harold Bradley, Ray Walker and Karen Staley. That’s Malcolm on the right in the photograph, together with Ray Walker, myself, and Kevin Anderson, the engineer and producer.

I can’t wait to see who will be on next week! Join me and Malcolm for a fun evening of family entertainment next Sunday evening!

Technorati Tags: Entertainment Law,Music Lawyer,Radio,Malcolm West,NASCAR

HR 848 passes committee

2009-05-13T16:25:00.001-05:00

Rep. John Conyers, Chair of the House Judiciary Committee brought the Performance Rights Act (HR 848) up for markup this morning.

HR 848 created no small amount of disagreement among radio broadcasters, minority broadcasters, trade unions and civil rights groups. However, a group of minority artists, including Duke Fakir of the Four Tops, Dionne Farris and Jon Secada, recently sent a letter indicating support for Rep. Conyers and this legislation. The letters stated in part:

As minority artists, we support a strong and vibrant local radio industry. We know that minority broadcasters play a vital role in our communities. And we support efforts to create accommodations in the legislation for small, minority-owned stations. But the creation of a fair performance right cannot be delayed further. We have already waited far too long. “Not now” is not an acceptable answer.

To address the concerns of minority broadcasters, Conyers offered the following amendments at today’s markup:

Affordable payment for small, rural, nonprofit, minority, religious and educational broadcasters

· Any station that makes less than $100,000 annually will pay only $500 annually for unlimited use of music

· Any station that makes less than $500,000 but more than $100,000 annually will pay only $2500 (half of the amount in introduced bill) annually for unlimited use of music

· Any station that makes less than $1,250,000 but more than $500,000 annually will pay only $5000 (the amount in introduced bill) annually for unlimited use of music

Relief for current economic situation

· No payment for 2 years by any station that makes less than $5,000,000 annually

· No payment for 1 year by any station that makes more than $5,000,000 annually

Parity for all radio services

· Establishes a “placeholder” standard to determine a fair rate for all radio services that will encourage negotiations between the stakeholders

Cannot hurt local communities

· Assures that this legislation cannot affect broadcasters public interest obligations to serve the local community

Assures consideration of relevant evidence

· Evidence relevant to small, noncommercial, minority, and religious broadcasters and religious and minority royalty recipients must be considered by the Copyright Royalty Judges

Other minority and civil rights groups that sent letters expressing support for the act included the Leadership Conference on Civil Rights, Pennsylvania Legislative Black Caucus, Rhythm and Blues Foundation and the A. Phillip Randolph Institute.

The executive director of the musicFIRST Coalition, Jennifer Bendall, supported the committee’s decision:

“We applaud Chairman Conyers and Committee members for their work on the Performance Rights Act and for supporting artists, musicians and rights holders in their fight for fair compensation when their music is used by AM and FM radio stations.

The Performance Rights Act will bring fairness to artists, musicians and rights holders and one that’s fair to radio and its counterparts. It also includes accommodations for small and minority-owned broadcasters. musicFIRST looks forward to the next chapter and to Congress to ensure that U.S. artists and musicians receive the performance right they deserve.”

Now that HR 848 has cleared the committee, it will be brought in front of the entire House for debate and vote.

Technorati Tags: Performance Rights Act,Legislation,Radio Broadcasters,PROs,music industry Events

New website focuses on promotion of musicians

2009-04-29T13:04:00.001-05:00

I was recently contacted by John Dargan, a Florida-based computer programmer who is also the webmaster for a new music-related web site called www.Nurturemusic.biz. The concept of the site is simple, and somewhat unique: it is a “slide show” of publicity photographs of various musicians, artists, bands and related music industry professionals. Dargan finds musicians to be fascinating people, so he founded the site this past March with a goal of providing a marketing avenue for talented musicians allowing them to attract a wider audience. So far, the site has engendered an enthusiastic response from both the musicians and their fans.

To obtain the content, Dargan scours MySpace and other websites looking for musicians, artists and bands that have both great publicity photos and an apparent talent for music. Dargan works hard to ferret out the best photos and the most promising musicians.

“It’s a tremendously fun hobby,” Dargan says.

A viewer arriving at the website is greeted simply with a photograph framed on the top with the site’s logo, a navigation bar, and the name of the artist, and on the bottom with various links and information related to the artist. In the navigation bar, the user can move from photo to photo in the slideshow or learn more about the artists by clicking on one of the links or directly on the displayed image, which is generally hyperlinked to the musician’s website, MySpace page or the CDBaby location offering the musician’s CD for sale. In this way, Dragan hopes to drive web traffic to the commercial sites of the musicians.

In addition to providing free publicity to the musicians, the site provides credit to the professional photographers who took created some of the images as well as a hyperlink to the photographer’s website. Dargan makes an effort to contact each professional photographers not only to seek permission, but to ask them to comment on the the photo session, asking them to describe how they decided upon the location of the shot, the best angle, or any incident associated with the session that a reader might find of interest.

The goal is to enhance the viewer’s understanding and enjoyment of the photography and to provide a more intimate glimpse into the life of the photographer and the musician. Dargan’s approach to the website is drawn from the concept of “high-tech, high-touch,” a book by John Naisbitt, which introduces the concept that technology can help bring us closer as a community.

All of Dargan’s discover efforts seem to focus on quality. For example, he searches for photographs in which the faces are clearly visible, i.e. not hidden behind microphones or musical instruments.

I prefer eyes that are visible, not closed, nor looking away. The expression on the face provides an insight into each person's personality.

Dargan was surprise to find that a number of the photographs he chose were taken not by professional photographers, but by the artists and musicians themselves.

The key emphasis in the search for music is also on quality elements. Dargan searches extraordinary talent and musical express. He listens for lyrics that are not only original, but have qualities and characteristics that are touching, heartfelt, plausible or engaging.

In contrast, Dargan avoids photographs that contain disturbing elements, such as blood, or music that contains “excessive screaming or cursing.”

The music should engage the listener right away. The execution of the music should be crisp and should indicate a high level of musical skill. The quality of the instruments should be high. The vocals should be compelling and dynamic

Dargan says.

Dargan has also been surprised by the number of extremely talented teenagers that he discovered in the plethora of musicians on MySpace and YouTube. While he generally he avoids direct contact with minors for obvious reasons, Dargan was particularly impressed with one young country singer named William Michael Morgan, so he contacted the boy’s father and obtained permission to feature William on the website.

Other examples of the talent featured on the website are

David Bradley, a singer/songwriter who is also an oil engineer. Bradley wrote some of his songs while stationed in the forests of Siberia and on an oil rig in the middle of the Caspian Sea.
Colin O'Donohoe, an outstanding composer, conductor and musician who has developed hauntingly beautiful music involving wonderful instruments from the Far East.

Dargan is also sells “slots” in the slide show to attorneys and other industry professionals who specialize in the music industry. Dargan chuckles at the thought of money trickling in from these professionals, particularly attorneys, as Dargan, a patent-holder who has been involved in patent litigation, has sent tens of thousands of dollars to attorneys. “Getting even a small amount of income from attorneys seems only fair to me,” he chides.

Dargan received a Bachelors degree from American University in interdisciplinary studies, and a Masters degree from Washington University in St. Louis, in Technology and Human Affairs. Dargan has one expired patent and one pending patent, both related to Touch-Tone interaction with computers, such as with text messaging. Dargan can be reached at nurturemusic@yahoo.com.

Technorati Tags: musicians,artists,entertainment,entertainers,music law,entertainment lawyer,music lawyer,entertainment attorney

Law on the “ROAD”

2009-04-10T10:33:00.001-05:00

Starting in June, the author of this blog, Law on the Row - 20-year entertainment attorney veteran Barry Neil Shrum - will be taking the show on the road! On June 5, 2009, Mr. Shrum will conduct the first of a series of national seminars called MBA, Music Business Academy.

Mr. Shrum initiated this series of seminars to address a perceived need in the industry: that a growing number of artists, entertainers and songwriters who might benefit from the expertise of an entertainment attorney, could not afford to retain an attorney and get the help they need due to upfront fees and retainers. To this end, the mission statement for MBA is “music business education for the do-it-yourself generation!” This unique series of one-day sessions will provide the upcoming and established mid-tier artist, musician, songwriter and other music industry professionals with a cost-effective method of obtaining an essential legal foundation for day-to-day music industry survival.

The goal of the seminar is to create a sense of being in the client chair, Mr. Shrum will unravel the essential provisions of various industry-specific agreements - bringing clarity to the legalese and identifying red flags in the “small print.” Some specific agreements covered in the MBA session are:

*    the exclusive recording agreement (and the new 360 deal)
*    the exclusive songwriting agreement
*    the personal management agreement

For the do-it-yourself generation, Mr. Shrum will also explain the details and implications of guerilla marketing on the web. He will explore the typical iTunes deal as well as other online distribution issues relevant to today’s guerilla marketers.

When asked about the seminar, Riq Lazarus, of Lazarus Management Group, said:

"Barry Shrum gets it! The music business is undergoing radical change. It is absolutely essential that today's artists have an understanding of the legal issues facing them in this new era of "do-it-yourself" broadcasting. And because he has the heart of a teacher, Barry's immense knowledge and experience enables him to empower you with the understanding you need to protect your creations."

It is Mr. Shrum’s goal that attendees walk away from the seminar with a functional understanding of basic copyright, trademark and contract law — a virtual “MBA” in the music business! Attendees will also receive specialized written materials as a continuing reference and valuable resource and are given the opportunity to purchase reduced rate legal services from Mr. Shrum.

The date of June 5, 2009 has been set for Chattanooga – the day before the Riverbend Festival - and plans are in the works for seminars in Denver, Colorado and Charlotte, West Virginia. Other cities under consideration are Austin, Texas, Baltimore, Maryland, Boston, Massachusetts, Atlanta, Georgia, Philadelphia, Pennsylvania. To see if your city is being considered, or to vote for your city, take the online poll.

General information about the seminars can be found here. A detailed agenda of the Chattanooga seminar can be found at the event website: www.musicbusinessacademy.info

online event registration
by RegOnline

Technorati Tags: Music Business,Seminar,Music Law,Music Publishing Contracts,Exclusive Songwriting Agreement,Exclusive Recording Agreement,Record Contract,Personal Management Agreement,Music Industry

Taxation of digital downloads

2009-03-13T10:00:00.001-05:00

By guest author, Cory Greenwell, Esquire*

“The customer is always right” has long been a mantra of the business world. Over the last ten years, consumers within the entertainment and software industries have begun to demand instant access to products off all types. Products such as the Apple iPod®, Sony PSP® and the Amazon Kindle® among countless similar products have created an ever-increasing demand for instant access to media content. As a result, the increase of digital distribution of media content has grown, with iTunes alone accounting for more than $5 billion dollars in the US and the industry continues to grow. As a direct result of the increase in volume of the digital distribution of media content, the distribution of physical media, such as compact discs that are customarily subject to sales tax fell sharply in 2007. The paradigm shift has resulted in a major sector of the entertainment industry acquiring virtually tax-free status or consumers.

In the 1992 landmark decision in Quill v. North Dakota, 504 U.S. 298 (1992), the court found that states cannot require out-of-state retailers to collect taxes from customers who live in states where the retailer does not have a related physical presence or “substantial nexus”. The basis for the decision was to give a “safe harbor” for businesses wishing to avoid the burdens of complying with the numerous state tax laws by transacting business online.

Seventeen states, including Tennessee, have updated their tax code and now impose a tax on digital downloads. The legality regarding the taxation of digital media appears to have been resolved in favor of taxation. After Quill, the responsibility rests on the individual consumer to report the transaction on their annual tax return and pay the appropriate amount of sales tax. Some reports indicate that nationwide state and local governments will have lost more than $500,000,000 in uncollected taxes by 2011.

The court in Quill recognized the importance of the emerging e-commerce sector and declared that alternative means to require retailers to collect sales tax, namely that 1) Congress may require retailers to collect sales tax or 2) States may require retailers to collect taxes provided that Congress has provided a mechanism by which to reduce the burden of retailers to comply with the tax laws of the several states.

Since the Quill decision, twenty-two states including Tennessee have joined together under the “Streamlined Sales Tax Agreement” to create a uniform tax code to reduce the burden of complying with the law of the several states. Among other things, the SSTA have created uniform rules regarding digital media. The National Conference of State Legislatures has called for Congress in its next session to review the Sales Tax Fairness and Simplification Act (H.R. 3396) which gives those states that have complied with the Streamlined Sales Tax Agreement the authority to require out-of-state retailers to collect sales tax for online purchases.

Rather than waiting on Congressional action, New York has attempted to circumvent the requirement of a physical location within the state by interpreting their law to include any “affiliate”. In the case of Amazon, affiliates include anyone who advertises on the website. This interpretation, if adopted by the several states, would negate the benefit of the safe harbor by exposing the online retailer to liability throughout the nation.

In conclusion, as the law presently stands, states may tax digital media, however it cannot require out of state retailers to collect taxes. If Congress adopts the legislation proposed by the members of the Streamlined Sales Tax Agreement as anticipated, the Quill case no longer prevents states from requiring retailers to collect sales tax.

*Jonathan “Cory” Greenwell is an intellectual property lawyer who practices in Louisville, Kentucky at the firm of Greenebaum Doll & McDonald. Cory is the co-founder of the website Backseat SandBar and was featured on the WFPK 91.9 feature, “Off the Record.”

Technorati Tags: Taxation,Digital Downloads,MP3,music law,entertaiment law

Politico’s interview with Corgan following his testimony before Judiciary Committee on HR 848

2009-03-11T09:39:00.001-05:00

As a follow up to my previous post on the subject, the radio widget above should play Politico’s interview with Smashing Pumpkin’s founder and frontman Billy Corgan following his testimony in front of the House Judiciary Committee in support of HR 848, the Performance Rights Act.

Corgan testified on Capitol Hill on behalf of the musicFIRST Coalition yesterday. Corgan testified that the current sytems is “hurting the music business” because of radio stations’ failure to compensate musicians for performing their music.

My readers know my thoughts on this subject. While I agree with Corgan’s overall sentiment, I stand by my emphasis yesterday that the legislation as it is written may be drafted in favor of the record labels more so than the performing artists.

HR 848 should have a provision that provides for direct payment of royalties to the artists who performed on the sound recording and which specifically does NOT rely on the record labels to distribute these royalties “in accordance with the terms of the artist’s contract.” (See my previous post). This kind of language contained in the House version of the legislation at Section 6 only assures that the record labels would receive all the performance royalties and that performing artists would have to overcome numerous obstacles to ever see any of the additional income, inevitably leading to more disputes with the record label. The current artists agreements with record labels simply do not contain provisions addressing payment of these types of royalties and, even if they did, the artists who have unrecouped balances on their ledger sheets would never see a dime.

My proposal is that the current system for collection and distribution of performance royalties for musical compositions be utilized. Specifically, why not allow BMI, SESAC and ASCAP to collect and distribute the performance royalties for sound recording copyrights on behalf of member artists, allowing these organizations to pay 50% of the income directly to the artists (the original owners of the sound recordings) and 50% to the record labels (the assignee owners of the sound recordings). This structure is identical to the distribution of performance royalties for owners of the musical composition copyright. It’s a systems that has functioned well since the turn of the 20th century and it is a systems that, overall, works fairly well.

In general, members of the performance rights organizations have fewer royalty disputes with these entities over than artists do with record labels, since these entities, for the most part, do not function as profit generators. There is no doubt that this idea has some flaws as well, but in comparing the alternative, it seems to me that this would benefit the artists and musicians much more than giving the money to the record labels.

Technorati Tags: Billy Corgan,Smashing Pumpkins,HR 848,Legislation,Music Industry,Music Law,Entertainment Industry,Entertainment Lawyer

Judiciary Committee holds hearings on HR 848, the “Performance Rights Act”

2009-03-09T13:59:00.001-05:00

The House Judiciary Committee will hold hearings on H.R. 848 (this year’s version of HR 4789) tomorrow morning at 10:00 a.m. Although the Committee’s website does not identify any witnesses at this time, I am informed by musicFIRST that Smashing Pumpkins’ founder Billy Corgan and Mitch Bainwol, chairman and CEO of the RIAA will be speaking on their behalf at the hearing.

H.R. 848 was introduced to the 111th Congress by Rep. John Conyers on February 4, 2009 then referred to committee on the same day. It was co-sponsored by Tennessee representative, Marsha Blackburn. If passed, HR 848 would amend The Copyright Act (specifically Title 17) to provide “parity in radio performance rights” under the Copyright Act. In other words, the Bill would grant a performance rights in sound recordings performed over terrestrial broadcasts (i.e., traditional radio broadcasts, not satellite). S. 379 is the Senate’s complimentary bill, introduced by Senator Patrick Leahy.

The act has certain provisions to accommodate concerns by the broadcast industry, such as the provision which establishes a flat annual fee in lieu of payment of royalties for individual terrestrial broadcast stations with gross revenues of less than $1.25 million and for non-commercial, public broadcast stations; the provision which grants an exemption from royalty payments for broadcasts of religious services and for incidental uses of musical sound recordings; and the provision which grants terrestrial broadcast stations that make limited feature uses of sound recordings the option to obtain per program licenses.

The Act specifically states that it will not adversely affect the public performance rights or royalties payable to songwriters or copyright owners of musical works. In particular, the Act prohibits taking into account the rates established by the Copyright Royalty Judges in any proceeding to reduce or adversely affect the license fees payable for public performances by terrestrial broadcast stations. Requires that such license fees for the public performance of musical works be independent of license fees paid for the public performance of sound recordings.

The full text of the bill can be found at govtrack.us.

One provision I found interesting was Section 6, (1)(A), regarding payment of certain royalties, that states, in full:

A featured recording artist who performs on a sound recording that has been licensed for public performance by means of a digital audio transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract.

Emphasis added. This last clause intrigues me. What I find interesting about it is that under the current structure, the record labels own most, if not all, of the commercial sound recording masters, i.e., they are the “copyright owner of the sound recording.” This clause entitles the “featured recording artist,” e.g., Madonna, Michael Jackson, etc., to receive payments from the owner “in accordance with the terms of the artist’s contract.”

In most artists’ contracts, payments are based on a percentage of the gross revenues from sales of physical units – current artist contracts do not have provision for payment of performance royalties on the sound recording. It would seem that under the Act as written, there is silence as to what happens in this instance where these specific payments of performance royalties are not addressed in the artist’s contract. One possible remedy would be for the legislators to draft language that would apply, such as what they have done with regard to the “non-featured artists in subsection (B) of the same Section 6. This Section 6 is not found in the Senate’s version of the legislation.

All of this makes me curious about what will happen to performance royalties that are paid under this Act to the owners of the sound recording copyrights, i.e. the record labels if there is no language in the artists’ recording agreements to specify as to what percentage the artist is entitled? One thing is certain: an artist who is not recouped under his artist recording agreement will never see any of these performance royalties under such time as his balance is recouped.

One proposal you might suggest to your representatives is that they consider a payment structure similar to that of the current performance rights organizations that collect and pay performance royalties for musical compositions, wherein one half of the royalties go directly to the songwriter and the other half directly to the publisher. If this were the case under the new Act, half of the royalty payments would filter directly to the artist and the other half would go to the record labels. If there truly is a concern about the recording artists not getting paid for his or her performances, this is the only method that would assure this happens.

If you are a recording artist whose performances are being playing on local FM and AM radios, you should investigate the impact this legislation will have on you. Call you Senators and Representatives and ask them to keep you updated.

Technorati Tags: legislation,HR 848,performance rights act,2009,111th Congress,record labels,music industry,entertainment industry,recording contracts,entertainment law,music law,music lawyer

Randy Owens receives “Artist Humanitarian Award”

2009-03-06T14:40:00.001-06:00

Country Radio Broadcasters, Inc. today announced that country legend Randy Owens was the recipient of this year’s Artist Humanitarian Award.

Together with his cousins Jeff Cook and Teddy Gentry, Owens was the front man for the one of the best selling country acts of all time, Alabama. The band, which peaked in the 80’s, racked up over thirty No. 1’s on Billboard’s Country Singles Charts, with memorable hits such as “Love in the First Degree,” “Feels So Right,” “Close Enough to Perfect” and “Take Me Down.” They also sang backup vocals on Lionel Richie’s 1987 single “Deep River Woman,” which peaked at No. 10. The group has won two Grammy Awards for "Best Country Performance By A Duo Or Group With Vocal" in 1982 for Mountain Music and in 1983 for The Closer You Get.

Owen co-founded Country Cares for St. Jude Kids® in 1989 after meeting St. Jude Children's Research Hospital founder Danny Thomas the year before. To date, Country Cares has raised more than $345 million to fund research in the fight against childhood cancer. Earlier this year, more than 800 members of the country music industry gathered at the annual seminar in Memphis to celebrate 20 years of support for the children of St. Jude. In 2008, Broken Bow Records released the Grammy Award-winner's debut solo album, One On One, and HarperOne published his memoir, titled "Born Country."

Country Radio Broadcasters, Inc. leads the music industry in recognizing the humanitarian achievements of country artists. In 1990, CRB instituted the Artist Humanitarian Award, which was first presented during the CRS-21. Past honorees include Brad Paisley, Brooks & Dunn, Garth Brooks, Charlie Daniels and Kenny Rogers. For a complete list of past winners, click here.

Last year's recipient, Clay Walker, presented Owen with the award Wednesday morning during the award ceremonies in the Convention Center.

The Radio Humanitarian Awards for 2009 went to 97.3 WGH, Norfolk-Virginia (Large Market), 107.7 WIVK, Knoxville, Tennessee (Medium Market) and 93.3 WFLS, Fredericksburg, Virginia (Small Market). The CRB Radio Humanitarian Awards are presented to full-time country radio stations for their efforts to improve the quality of life for communities they serve.

This year's Tom Rivers Humanitarian Award was given to CBS Minneapolis VP Market Manager Mick Anselmo, Sr. During his tenure at KEEY-FM, Anselmo organized and created a radiothon which has helped raise more than $12 million for St. Jude Children's Research Hospital. His partnership with Sharing and Caring Hands of Minneapolis during a run of Garth Brooks concerts in 1998 set a Minneapolis-St. Paul food drive record. The former Clear Channel radio executive also created Project Northern Lights, an effort that collected calling cards for troops stationed in Baghdad.

The intent of the Tom Rivers Humanitarian Award, given at the discretion of the Country Radio Broadcasters Board of Directors, is to recognize an individual in the Country Radio industry who has displayed a magnanimous spirit of caring and generosity in service to their community. The award is given when the board feels an individual, through outstanding service, warrants the recognition.

Congratulations to Randy and the other winners.

Technorati Tags: CRS-40,Country Radio Seminar,Artist Humanitarian Award,Randy Owen,Teddy Gentry,Alabama,Jeff Cook,Country Music Hall of Fame,Country Music,Nashville

Oscar-nominated short film “I Met the Walrus”

2009-03-05T14:36:00.001-06:00

As a Beatles fan, I thought I’d share this interesting little film, which animates an interview which Jerry Levitan conducted with John Lennon in 1969 when Levitan was only 14.

Just to give a little historical perspective, 1969 was the year that Abby Road was released, the Beatles performed together for the last time, and was the year that Lennon and Yono conducted their famous “Bed-In” in Montreal Quebec. A lot happened in 1969: it was a time when the space race was in full force, with Russia and the U.S. leap-frogging each other into the great frontier, culminating in the U.S. landing the first man on the moon, Apollo 11, with Neil Armstrong’s famous “one small step for mankind” proclamation. The Cold War with Russia was at a boiling point. It was a tumultuous time: Nixon was president, the Vietnam war was in full force, the draft lottery was held for the first time since WWII, and Nixon proclaim the “Nixon Doctrine” that he expected Asian allies to be responsible for their own military defense. Antiwar demonstrations were at their peak, so much so that Nixon asks for the “silent majority” to join in solidarity in support of the troops. Some events that changed our lives forever that year include: a little Arkansas corporation called Wal-mart is formed, the first GAP store opens in San Francisco, the AIDS virus first spread to the US, the first automatic teller machine was installed in the US in Rockville Centre, New York and the first ARPANET link, the ancestor of the Internet, was established. Culturally, Monty Python’s Flying Circus debuts in the UK, Sesame Street premieres, and the New York Jets defeated the Baltimore Colts in Superbowl III. Notable births that year included Brett Favre, Catherine Zeta-Jones, Matthew McConaughey, and Jennifer Lopez. Notable deaths include Dwight D. Eisenhower, King Saud (Saudi Arabia), Judy Garland, Boris Karloff and Rocky Marciano.

Levitan was producer for I Met the Walrus. In 2007, he hired Josh Raskin to direct and animate the short film on behalf of his production company. It was illustrated by James Braithwaite, who Levitan described as “brilliant.” It has won numerous awards, including the Best Animated Short awards from the American Film Institute, the Middle East International Film Festival, the Manhattan Short Film Festival, the Cleveland Film Festival, RiverRun International Film Festival and the Coup de Coeur award from the Regard-Saguenay International Sort Film Festival. It was nominated for an Academy Award (Oscar) in 2008 by the Academy of Motion Picture Arts & Sciences.

Jerry Levitan informs me that he written a book by the same, I Met the Walrus, which comes out in May under the Harper Collins imprint. You can find out more about Mr. Levitan at www.sir-jerry.com.

Thanks to my good friend Gray for turning me on to this film and thanks to Jerry Levitan for the kind words about my humble blog!

See these related links:

Film company website.

Oscar-nominated short film “I Met the Walrus”

2009-03-05T10:04:00.001-06:00

As a Beatles fan, I thought I’d share this interesting little film, which animates an interview which Jerry Levitan conducted with John Lennon in 1969 when Levitan was only 14.

Levitan produced the I Met the Walrus. In 2007, he hired Josh Raskin to direct and animate the short film. It was illustrated by James Braithwaite, who Levitan described as “brilliant.” It has won numerous awards, including the Best Animated Short awards from the American Film Institute, the Middle East International Film Festival, the Manhattan Short Film Festival, the Cleveland Film Festival, RiverRun International Film Festival and the Coup de Coeur award from the Regard-Saguenay International Sort Film Festival. It was nominated for an Academy Award (Oscar) in 2008 by the Academy of Motion Picture Arts & Sciences.

Jerry Levitan informs me that he written a book by the same, I Met teh Walrus, which comes out in May under the Harper Collins imprint. You can find out more about Mr. Levitan at www.sir-jerry.com.

Thanks to my good friend Gray for turning me on to this film.

See these related links:

Film company website.

Music Row gears up for CRS

2009-03-03T09:30:00.001-06:00

When big events like the Country Radio Seminar occur, Music Row begins to buzz with various activities and talk about the celebrities. The Country Radio Seminar is an annual convention designed to educate and promote the exchange of ideas in the country music industry. This year marks the event’s 40th anniversary and it promises to be another great year for attendance.

Among the buzz this year is Gerry House’s induction into the Countr y Music DJ Hall of Fame. House is without a doubt one of the most well known country radio personalities of all time and has been honored many times during his long career as a spinner of vinyl (and now polycarbonate, or make that digits!). He began that career in the small Tennessee town of Maryville at WBCR. In 1975, he stared at WSIX-AM in Nashville then moved over to the FM side in the early '80s. In 1985, he moved his show to the granddaddy of Country Music Radio, WSM and then to KLAC in Los Angeles. Ultimately, as life often does, he came almost full circle returning to WSIX-FM. In 2008, the Gerry House and the House Foundation morning show on WSIX won “Personality of the Year” awards from the Country Music Association, the Academy of Country Music and Radio & Records. House also received the National Association of Broadcasters' Marconi Award and Leadership Music's Dale Franklin Award. Also an accomplished songwriter, House wrote "The Big One" (George Strait), "Little Rock" (Reba McEntire) and "On The Side Of Angels" (LeAnn Rimes). House is joined by the induction Cleveland Ohio’s Chuck Collier, a 30-year veteran of country music radio. On the programming side of the equation, Bob McKay and Moon Mullins are the Country Music Radio Hall of Fame inductees. Merle Haggard will receive the Career Achievement Award and Shelia Shipley Biddy will be presented the President's Award.

The Country Music DJ and Radio Hall of Fame events unofficially mark the beginning of CRS each year. The Hall of Fame Cocktail Party begins at 5:30 p.m. Tuesday evening. The Dinner and Induction Ceremony follows at 6 p.m. The remainder of scheduled events for CRS are as follows:

Wednesday, March 4

Wednesday's events kick off at 9 a.m. with the Opening Ceremonies and Award Presentation. The keynote address, delivered by marketing expert Seth Godin, will follow at 10 a.m. in the Performance Hall, with the Motivational Speaker/Life Coach panel at 11:15 a.m. This year's speaker will be former No. 1 country artist-turn motivational coach Sylvia Hutton.

New label Golden Music will sponsor Wednesday's luncheon, featuring performances by Benton Blount and Williams Riley. The previously scheduled morning Artist Radio Taping Session (sponsored by SESAC) will now be combined with the afternoon A.R.T.S. panel. As a result, the afternoon session will be extended by one hour (2:30 p.m. - 4:50 p.m.).

Performers at ASCAP's KCRS Live! will include artists and songwriters Jimmy Wayne, Kelley Lovelace, Ashley Gorley and Jonathan Singleton. The popular Music City Jam^TM (7:30 p.m. - 9:30 p.m. in the Performance Hall) will be hosted this year by Tim McGraw and sponsored by the Academy of Country Music.

Additionally, two educational panels will be featured Wednesday afternoon: "Country Radio As Seen Through The PPM Lens," sponsored by Arbitron, and "Back to the Future: 1969-2049."

Thursday, March 5:

Designated as Music Industry Town Meeting Day, single day registration for Thursday's activities may be purchased on-site for $265. The day's agenda includes the return of the Tech Track and Small Market Track panels. Tech Track panels include "Spinning a Web" and "40 New Media Ideas." Small Market panels include "Come Hell or High Water: Disaster Preparedness," "You're a PD, Now What?" and "Champagne Production on a Beer Budget." Sixteen panels will be offered in all during the day between 9 a.m. and 4 p.m.

Thursday's events begin at 9 a.m. with The Country Music Association revealing the results of its 2008 Country Music Consumer Segmentation Study, conducted by Leo Burnett Co. and Starcom MediaVest Group. Sony Music Nashville's luncheon (noon - 1:50 p.m.) will feature performances by Miranda Lambert and Jake Owen. At 4:10 p.m. Bobby Pinson, Pau l Overstreet, Josh Turner and Jamey Johnson will perform during WCRS Live! (sponsored by BMI and Country Aircheck).

Friday, March 6:
Friday is Radio Sales Day. Single day registration, including entrance to the New Faces of Country Music Show®, is available for $370 on-site. Friday's events will kick-off with the Managers' Breakfast at 8 a.m., followed by CRS-40's second research study, which will present findings from the Edison Research / CRB National Country P1 Study 2009 at 10 a.m.

Panels during the day will focus on important topics that affect the Country Radio format, such as consumer habits, promotional and research ideas, voicetracking and tools to increase sales. Prominent sales panels include "20 Ideas Even a PD Would Love," "PPM! Selling the Country Format," "What's NTR Got To Do With It?" "Creative Closing" and "A Car Dealer Tells All About Advertising." More than a dozen panels will be offered during Friday's activities.

Friday's luncheon, sponsored by Capitol Nashville, will feature performances from Darius Rucker and Little Big Town. Also during lunch, Operation Troop Aid, a non-profit charity organization, will send 500 care packages from CRS-40 to deployed U.S. troops. Packages will contain phone cards, MP3s, beef jerky, trail mix, hand wipes, hand sanitizer, cookies, candy, granola bars, toiletry items and thank you letters. At 4:10 p.m., Barbara Mandrell will interview Kix Brooks during the Life of a Legend series.

One of Country Radio Seminar's most popular events, The New Faces of Country Music Show and Dinner (sponsored by R&R and CMA) starts at 6:30 p.m. with performances from Lady Antebellum, James Otto, Kellie Pickler, Chuck Wicks and The Zac Brown Band. CRS-40 will then officially close with the unique 40th Anniversary Jam: A Musical Thanks to Radio, to be held at Cadillac Ranch and sponsored by DigitalRodeo.com. Artists will cover their favorite radio hits from the last 40 years, featuring performances by Emerson Drive, Andy Griggs, Julianne Hough, Jamie O'Neal, James Otto, Blake Shelton, Jimmy Wayne, Chuck Wicks, Mark Wills and Darryl Worley, among others.

A new CRS documentary can be seen during the three-day seminar at the Renaissance and Hilton hotels in downtown Nashville. The film, produced by Art Vuolo and titled WCRS-TV, chronicles various CRS highlights over the last 21 years.

CRS-40 will be held March 4-6, 2009 at the Nashville Convention Center in Nashville, Tenn.

About CRB:
Detailed seminar information and a full agenda can be found online at www.CRB.org. On-site registration is still available for $699 and may be purchased at the Convention Center. The Country Radio Broadcasters, Inc.®, the event sponsor, is a 501(c)3 non-profit organization founded in 1969 to bring radio broadcasters from around the world together with the Country Music Industry to ensure vitality and promote growth in the Country Radio format.

Technorati Tags: Music Row,Music Industry Events,Nashville,CRS-40,Country Radio Seminar,Country Radio Broadcasters,Julianne Hough,Miranda Lambert,Gerry House,Country Music Hall of Fame,Radio Hall of Fame,DJ Hall of Fame

James H. Harris III certified as Civil Trial Specialist

2009-02-23T15:49:00.001-06:00

My friend and colleague James H. Harris III was recently certified as a Civil Trial Specialist by the Tennessee Commission on Continuing Legal Education and Specialization. Just over 300 Tennessee attorneys have completed the rigorous certification process established and required by the Tennessee Supreme Court.

To be certified, Tennessee attorneys must met certain requirements, including a certain number of years of experience in their particular field of certification, demonstration of special education, passage of an examination, and recommendation from other judges and attorneys.

Tennessee attorneys are not required to be certified in a particular field in order to practice in that area, and in fact Tennessee does not have a certification process for every area of legal practice (entertainment law, for example, is excluded). Currently, certification is only offered in the areas of Civil Trial, Criminal Trial, Bankruptcy, Malpractice, Elder Law, Estate Planning, Family Law and a few other areas.

Another member of my association, Gail Bradford, is certified in the area of Estate Planning.

Congratulations Jim!

Technorati Tags: Tennessee Civil Trial Specialist

musicFIRST defends rights of artists

2009-02-05T17:00:00.001-06:00

By Jennifer Bendall, Executive Director of musicFIRST

Did you know that every time you hear your favorite artist’s hit songs over the airwaves he or she doesn’t receive a single penny from the radio stations broadcasting the song? Sounds crazy, right? While AM and FM music broadcasters rightly pay the writers of these songs, they refuse to compensate the performing artist as the performer of the song.

In fact, AM and FM music radio stations earn a cool $16 billion a year in advertising revenue without compensating the artists and musicians who bring music to life and listeners’ ears to the radio dial.

The fight for a fair performance right on radio has been going on in the U.S. for more than 80 years. Frank Sinatra was a leader in this fight 20 years ago, and his daughter Nancy carries the legacy today. In 2008, Nancy Sinatra testified before a House subcommittee on behalf of the musicFIRST (Fairness in Radio Starting Today) Coalition, telling members of Congress about the life of an artist:

Imagine struggling in your job, perhaps for years, to make the best product you can – a product made of your blood, sweat and tears. Now imagine people taking that product to use to build their own hugely successful businesses. Just taking it – no permission, no payment, and no consequence.

A fair performance right is not only beneficial for the musicians and artists behind the music, but also for the U.S. economy. Currently, the U.S. is the only member of the 30-country Organization of Economic Cooperation and Development (OECD) that does not fairly compensate performing artists when their songs are played on the radio. This puts the U.S. in the company of countries such as Iran, China and North Korea who don’t pay royalties to performers for their intellectual property. Plus, since we don’t have a performance right here in the U.S., artists lose out on the royalties collected overseas for the play of American sound recordings.

The musicFIRST Coalition, a group of artists, musicians and music community organizations, supports the creation of a performance right on AM and FM radio. The Coalition formed in June 2007 to ensure that all performers – from aspiring and local artists, to background singers and well-known stars – are fairly compensated when their music is played on the radio. On February 4, 2009, bipartisan legislation – the “Performance Rights Act” – was reintroduced in the House and Senate. MusicFIRST supports this measure and plans to remain at the forefront of the fight for fair pay for airplay.

AM and FM radio remains the lone holdout in providing a fair performance right for artists and musicians. All other music platforms – Internet radio, satellite radio and cable television music channels – pay a fair performance royalty for the use of music. It’s time that radio broadcasters are held to the same standard.

Eighty years is far too long for AM and FM radio stations to refuse to compensate performers for their work. Let this be the year fairness is provided to the talented performers who bring to life the music of our lives.

My special thanks to guest author of today’s article, Jennifer Bendall, and Lindsay Dahl for making this article happen. For more information about musicFIRST and the great work they’re doing, go to www.musicfirstcoalition.org, or click on the picture above.

Technorati Tags: performance royalties,mechanical royalties,artist,music lawyer,radio broadcasts

ASCAP songwriters to perform at CRS-40’s KCRS Live! showcase

2009-01-28T13:34:00.001-06:00

Country Radio Broadcasters, Inc. today announced the lineup for this year's KCRS Live! event during the radio industry event, CRS-40, scheduled for March 4 - 6, 2009 at the Nashville Convention Center. The ASCAP-sponsored KCRS Live! event will Wednesday, March 4 from 5-6:20 p.m.

The event almost always features some of Nashville’s top songwriting talent. ASCAP writers and artists scheduled to perform this year include the following:

Jimmy Wayne - Jimmy Wayne's "Do You Believe Me Now," the title track from his first new album in five years (Do You Believe Me Now), was worth the wait. The much anticipated release was a Top 5 debut on the Billboard Country Album chart, while the single went all the way to No. 1. The follow-up single, "I Will," is headed in the same direction. His first release was a Top 10 success, garnering a string of hits on the Billboard Country chart, including "Stay Gone," "I Love You This Much," "Paper Angels" and "You Are," all co-written by Wayne. He is scheduled to perform on the "American Saturday Night" tour with Brad Paisley in the summer and fall of this year.

Kelley Lovelace - Franklin, Tennessee resident and graduate of Belmont University, Kelley Lovelace is no stranger to hit songs, having written several that were recorded by artists such as Brad Paisley, Carrie Underwood, Montgomery Gentry, Jason Aldean, Terri Clark, Joe Nichols, Jason Michael Carroll, Kristy Lee Cook, Tracy Byrd and many others. Fifteen of those songs turned into Top 20 Billboard hits, and 10 of them reached the No. 1 position. His credits include "Ticks," "He Didn't Have to Be," "The World," "Online," (Brad Paisley), "The Impossible," (Joe Nichols) and "I Just Wanna Be Mad" and "Girls Lie Too" (Terri Clark).

Ashley Gorley - Danville, Kentucky native and Belmont University graduate Ashley Gorley scored his first No. 1 with Carrie Underwood's 2006 hit "Don't Forget To Remember Me." In 2008, Carrie brought him his second No. 1 with "All-American Girl." His third chart-topper came only a few weeks later with Trace Adkins' No. 1 smash, "You're Gonna Miss This." 2009 began with yet another No. 1 hit, the Brad Paisley / Keith Urban duet "Start A Band." Gorley has already won three ASCAP Awards and been nominated for two Grammys and a CMA Award. His most recent single is Darius Rucker's "It Won't Be Like This For Long."

Jonathan Singleton - Music Row's "Breakthrough Songwriter of the Year" in 2008, Jonathan Singleton announced his presence in Nashville with the 2007 Gary Allan smash "Watching Airplanes," a song that earned him an ACM nomination for Single of the Year. The Jackson, Tenn. native is also a performer, recently playing gigs opening for artists like Joe Nichols, Phil Vassar, Carrie Underwood, Jason Michael Carroll, Blake Shelton and Eric Church. Singleton also wrote the latest Billy Currington single "Don't," and was featured in a recent "Legends and Lyrics" episode on PBS.

"We look forward to KCRS Live! every year. It gives ASCAP an opportunity to showcase some of our best songwriter/artists to radio in a more intimate setting," said Connie Bradley, ASCAP Sr. VP.

"For years, KCRS Live! has showcased some of Nashville's finest songwriters at Country Radio Seminar. This year looks to be no different, and we are grateful to have ASCAP once again sponsoring this event," added CRB Executive Director Ed Salamon.

More information about the event can be found at www.crb.org.

Technorati Tags: Music Row,Nashville,Music Industry,Radio Broadcasters,Country Music,Songwriters

My interview appearing on Metacafe.com

2009-01-16T09:31:00.001-06:00

The interview that I gave to DigimusicTV.com is becoming viral. Metacafe has it in three parts:

Barry Shrum Entertainment Attorney Part 1

Barry Shrum Entertainment Attorney Part 2

Barry Shrum Entertainment Attorney Part 3

Technorati Tags: Music Lawyer,Music Attorney,Entertainment Lawyer,Entertainment Attorney,Music Row,Copyright Lawyer,Nashville,Tennessee,Copyright Infringement

Barbara Mandrell and Kix Brooks slated for CRS-40 Panel

2009-01-13T15:06:00.001-06:00

Country Radio Broadcasters, Inc.® has announced the CRS-40 "Life Of A Legend" panel will feature an interview session of country music legend Barbara Mandrell by host Kix Brooks.

The "Life Of A Legend" panel, sponsored by ABC Radio Networks, takes place Friday, March 6, 2009 at 4:10 p.m. This panel is the climax of the seminar, and is always highly regarded as one of the most engaging and memorable events of CRS week.

Brooks (half of superstar country duo Brooks & Dunn and host of American Country Countdown) will interview Mandrell as she reflects on her legendary career in country music.

Mandrell earned her first No. 1 single with 1978's "Sleeping Single in a Double Bed," followed by "(If Loving You Is Wrong) I Don't Want to Be Right." Mandrell went on to score four more No. 1's: "Years," "I Was Country When Country Wasn't Cool," "Till You're Gone" and "One of a Kind Pair of Fools." A member of the Grand Ole Opry, Mandrell also starred in her own television series ("Barbara Mandrell and the Mandrell Sisters") and won both the CMA "Entertainer of the Year" and "Female Vocalist of the Year" Awards twice.

"Barbara and the CRS grew up together, and it is particularly appropriate to feature her this year at CRS on the convention's 40th Anniversary, the same year that marks her 40th anniversary with Columbia Records," says CRB Executive Director Ed Salamon. "Barbara Mandrell is a legend in every sense of the word. She has won countless awards, entertained millions with her television show and influenced so many of today's artists."

This is the fourth year for the "Life of a Legend" panel. Previous years' lineups included: Gerry House interviewing Kenny Rogers (CRS-37), Eddie Stubbs interviewing Ronnie Milsap (CRS-38) and Norro Wilson and Ronnie Gilley interviewing George Jones (CRS-39).

CRS-40 is scheduled for March 4-6, 2009 at the Nashville Convention Center. Complete information, including registration, may be obtained by contacting CRB, Inc. at 615.327.4487 or by visiting www.crb.org.

Technorati Tags: Barbara Mandrell,Country Radio Broadcasters,CRS-40,Nashville,Entertainment

Happy 2009!

2009-01-07T14:01:00.001-06:00

I’d like to take this time to wish all the readers of my blog, Law on the Row a very happy and prosperous new year. I hope and trust that everyone had a safe and happy holiday season. Thanks for paying attention to my musings over the past few years!

Local 257 elects Pomeroy to replace Bradley

2008-12-16T11:24:00.001-06:00

OUT WITH THE OLD

After over 18 years of service to the organization, Harold Bradley is no longer president of Nashville’s Local 257 chapter of the American Federation of Musicians. Dave Pomeroy was elected president last week by a vote of 675 to 449. Out of it’s 2620 members, 1165 votes were cast in this election, which is more than double the number of votes cast in the 2005 election.

This is most certainly the end of an era for Harold Bradley, for whom I have a great deal of respect and admiration. He began his long services as president of Local 257 on January 1, 1991 and later became the International Vice President serving the AFM’s International Executive Board, a position he will likely retain until 2010. He received the AFM’s Lifetime Achievement Award in 2006, the same year he was inducted into the Country Music Hall of Fame. Bradley was also the first president of the Nashville chapter of NARAS and continues to serve as a member of the Grammy organization’s Board of Governors.

Harold and his brother, Owen, built Nashville’s earliest recording facility, Castle Recording Studio, in the early 40’s. As the architect of the Nashville Sound, Harold was part of Nashville’s original “Nashville Cats,” the A-Team, which included such notables as Boots Randolph, Floyd Cramer, Hargus “Pig” Robbins, Buddy Harman and The Jordanaires.

He is one of the most recorded guitarist in the world, and has been pickin’ on country albums for over 60 years, including work on such classics as Bobby Helms' Jingle Bell Rock, Brenda Lee's I'm Sorry, Roy Orbison's Only the Lonely, Patsy Cline's Crazy, Roger Miller's King of the Road, Tammy Wynette's Stand By Your Man, Eddy Arnold's Make the World Go Away, and Loretta Lynn's Coal Miner's Daughter, just to name a few.

Harold Bradley will always be considered a formidable force in Nashville’s music industry.

IN WITH THE NEW

Bradley’s replacement, Dave Pomeroy, is a well known and seasoned musician as well, having played electric and acoustic bass on more than 500 albums during his 34 years in the music industry. Dave has played with artists including Emmylou Harris, Alan Jackson, Elton John, Peter Frampton and Chet Atkins, including work on 6 Grammy-winning projects. Dave is also an independent producer and has produced numerous projects which can be found on website.

Pomeroy issued the following statement after winning the election:

"I am humbled to be elected to the office President by the members of Local 257. Thanks to everyone who voted and all those who volunteered to help my campaign.

On behalf of all members past and present, I thank Harold Bradley for his many years of dedication and service to this Local and the AFM. I am honored to be carrying on the historic tradition of leading Local 257 as we move into a rapidly changing future.

We have one of the most dynamic, versatile, and innovative music communities on earth, and I look forward to representing the best interests of all Nashville musicians, both here at home and around the world."

Pomeroy will begin his three-year term effective January 1, 2009.

In the same election, Craig Krampf defeated Billy Linneman for Secretary-Treasurer by a vote of 570 to 539. Re-elected to the Executive Board were Bruce Bouton, Bobby Ogdin, Andy Reiss, Laura Ross, and Denis Solee, who were joined by new members Duncan Mullins and Jimmy Capps.

THE CONTROVERY

There is much controversy surrounding the election, which is viewed by some as “revolutionary.” The scuttlebutt is that a riff has been developing since 2001 between the leadership of the AFM’s International Executive Board and AFM members who were also members of the Recording Musicians Association, the local chapter of which Pomeroy is president. The RMA, a player conference sanctioned by the AFM, is a 1400-member organization of studio musicians with chapters in Los Angeles, New York and Nashville, It is arguably one of the most active conferences in the AFM.

Bradley and Linneman, for better or worse, threw their support behind resolution put forth by Thomas F. Lee, the IEB President, and passed by the IEB in Las Vegas in June 2008, which threatened to “de-conference” the RMA at its September conference.

Lee’s opposition to the RMA derived from stemmed from his promotion of a deal which eliminated so-called backend new usage “buyouts” of musical scores used in video games, something which the AFM was reluctant to do in the past. Read more about his in this Variety article.

The lines of battle were thusly drawn, and the Local 257 uprising has been building ever since, with tempers flaring on both sides of the disagreement. (A detailed, though somewhat biased, historical trail can found on the “Sounds” blog). As a result of the June vote, Pomeroy and over 150 other local members of the AFM presented a resolution at the executive board meeting of Local 257 calling on the members to censor Bradley for his support of the anti-RMA resolution, which Bradley described as “ridiculous” and to which he responded:

This resolution, submitted by RMA President David Pomeroy, is intended to influence my vote! I will continue to vote my conscience (based on the facts before me), and I resent this attempt to force me to vote otherwise.

This statement appeared in an open letter to Local 257 in the July-September 2008 edition of the Nashville Musician, the Local’s newsletter. This exchange ultimately led to the controversial election of last week.

The waves of discontent were also felt in Los Angeles, where RMA member Vince Trombetta was elected as Local 47’s president earlier this month, also in an apparent backlash against Tom Lee’s anti-RMA leanings.

The principals of democracy are certainly at work in the AFM, just as they were in the presidential elections this year!

SUMMARY

I know Dave Pomeroy and I believe he will be a caring and effective leader for the AFM. I congratulate him and wish him the best in the new endeavor, knowing full well that he has some difficult struggles ahead in leading the opposition.

I also know and respect Harold Bradley. Harold is a Nashville icon who has been an effective leader of Local 257 for almost two decades. I believe he wanted what he thought was best for the musicians and I know that he always had the musicians’ interests at heart. I thank him for his service to the industry.

But no one is perfect. While I do not intend to take either side in this debate, I will note that perhaps it was indeed time for a revolution. There is no doubt now that new leadership is the order of the day. Nashville’s musicians are the backbone of our industry and they deserve adequate compensation and representation. The majority of them now feel that Dave will do that and I commend their choice. While no one really likes it when it comes, change is often a good thing. I hope that at least in the Local 257, egos can deflate to normal and tempests can subside, and harmony can once again return to the organization that is at the heart of Music City.

Technorati Tags: nashville musician's union,afm,american federation of musiciains,local 257,dave pomeroy,harold bradley

PassAlong Networks gets cash infusion

2008-12-10T14:12:00.001-06:00

Word is spreading on the Internet about PassAlong Networks, Inc.'s recent infusion of investment capital. PassAlong is a digital music distribution and sharing service aptly headquartered in Franklin, Tennessee. According to VentureWire, the company plans to close a $30 million funding round later this month.

PassAlong, also known as the Tennessee Pacific Group, LLC, was founded in 2002 by former Microsoft executive, Dave Jaworski and, Scott Lewis, an independent entrepreneurer. Mr. Jaworski's blog, Can't Stop the Music, can be found here. The company raised $40 million in start up monies from angel investors - an unusually substantial amount from individual investors - and also raised another $10 million in investment capital in April 2007.

Music veteran Jeff Skillen recently went to work for the company as their VP of Entertainment Relations.

PassAlong has a patent pending on its media service engine architecture, which is designed to work across all operating systems and platforms and is device-independent. It launched its first digital music download store on e-Bay in September 2004

The company has digital music catalog agreements with all four major record labels: Warner Music Group, Universal Music Group, EMI, and Sony/BMG. The PassAlong catalog includes nearly 3 million songs, including not only catalog from the majors, but also nearly 2 million independent songs in MP3 format. Most of its music is either DRM or MP3, and the company became certified by Microsoft PlayforSure in December 2004.

The music-sharing services gets its name from the fact that it allows consumers to recommend music to friends with links to song clips sent through email and instant messaging services from AOL, MSN and Yahoo.

PassAlong Network Inc.'s portfolio of other products, many of which are interactive, includes:

StoreBlocks, an online platform of tools and templates for building digital music/media stores, including PassAlong's library of songs from the four major labels and MP3 files from independent artists. This system currently powers 120 digital music stores, including Proctor and Gamble's Julie's Jukebox;

OnTour, is an award-winning family of concert notification applications, widgets and websites;

freedomMP3, is a "non-DRM" solution, providing protection technology and media tracking services designed to safeguard artists' rights without hindering consumer rights via interoperability;.

Skylocker is a media storage and market-management platform;

Speakerheart a subsidiary of PassAlong, is an exciting independent-artist publishing and promotion system; and

Connected Consumer, a series of platforms and services aimed at enhancing the connected consumer experience.

Look for this exciting company to go places on the web.

Technorati Tags: Nashville,DRM,Digital Downloads,Internet Law,MP3,Major Labels

Peterson Receives 'Spirit of Hope' Award

2008-12-04T10:23:00.001-06:00

Country artist Michael Peterson is the recipient of this year's Bob Hope 'Spirit of Hope' Award, thereby recognized for his dedication and continued contributions to the troops of the United States Armed Forces.

The Spirit of Hope award is presented annually to distinguish ed Americans whose patriotism and service to the troops reflects that of Bob Hope. Commissioned by the USO in November 1997, the award was name after Hope, who at that time was designated as the first and only honorary veteran of the United States Armed Forces for his decades of entertaining troops, both in peacetime and in combat zones. Hope symbolized the idea that America cared about and supported its troops, and he remains the USO's "Ambassador of Good Will."

The award was given to Peterson at a ceremony held at the Pentagon in Washington, D.C. in late October. Other notable winners of the award in the past include the Country Music Association, CBS news anchor Walter Cronkite, the Dallas Cowboy Cheerleaders, and former astronaut John Glenn.

"The men and women in uniform who serve our nation selflessly with honor and integrity are inspiring to be around," said Peterson upon receiving the award. "For decades, Bob Hope saluted them with entertainment and encouragement from home. Because of Mr. Hope's sacrifice and service, today's entertainers have the same opportunity. I am grateful for this recognition and the privilege of being associated with his legacy."

Peterson completed the U.S. Army sponsored 'My Real Life - Strong For America Tour' earlier this year. In addition to performing, the singer introduced various programs and services at each stop of the tour that empowered students to make great choices and provided civic leaders and businesses with new strategies for contributing to their local communities. A live concert headlined by Peterson concluded each week's events.

The former collegiate football star continues his support of the troops with a series of overseas dates during the holidays. He will also perform for U.S. Army Chief Of Staff General George W. Casey Jr. in my old stomping grounds, Philadelphia, Pennsylvania on December 5th at the Union League of Philadelphia, prior to the annual Army-Navy football game.

Peterson first arrived on the country music scene in 1997 with the success of his self-titled debut album, which produced such hits as Drink, Swear, Steal & Lie which reached number 3 on the Billboard Hot Country Singles & Tracks chart (now Hot Country Songs)and From Here To Eternity which made it all the way to number one. The album was certified gold by the RIAA, and ultimately generated a total of five hit singles on the Billboard charts. In addition, he was recognized as country music's top selling new male artist by Billboard and R&R in that same year.

Peterson, a great ambassador for country music industry, has also contributed his time to other charities such as The Ronald McDonald House, the Special Olympics, and St. Jude Children's Research Hospital.

The USO is a Congressionally chartered, nonprofit organization, that is not a government agency, but rather is funded by many national corporations and other private contributors. For more information on the USO, call 1-800-876-7469 or visit their Web site, www.uso.org.

Congratulations Michael!

Technorati Tags: Michael Peterson,USO,Spirit of Hope Award,Bob Hope,Nashville Entertainment Attorney,Music City,Music Row,Entertainment Lawyer,Music Lawyer

Reba and Borchetta team up again

2008-11-11T15:56:00.001-06:00

Valory Music Co., the independent label formed last year as a subsidiary to Scott Borchetta and Toby Keith's Big Machine Records, has added another huge feather to their proverbial cap: Reba McIntire. The announcement appears today on Valory Music's website.

A multimedia entertainer, Reba sold more than 55 million albums, won two Grammy awards and starred in the popular sitcom Reba! She has for a long time been signed with MCA Nashville, a division of Universal Music Group, where she met Borchetta, who at the time was Senior VP of Promotion.

McEntire and Borchetta worked closely together at MCA Nashville creating a strategy that dominated airplay, sales and touring at a time when few other female artists were doing it. During their collaboration, Reba and Borchetta had 14 number 1 hits and sold over 22 million records, giving MCA Nashville the title "Label of the Decade" for the 1990's.

Valory Music was formed last year when Borchetta surprised the music community last year by announcing a similar high-profile deal with Jewel to produce a country record. At that time, Borchetta stated that the objective of Valory Music was "to continue the momentum that has been achieved with Big Machine by not only replicating our current culture and our recent successes, but also by taking everything that we've learned over the last two years and pouring it into this exciting new venture. We continually re-engineer what we think we know and we feel like we've identified an incredible opportunity with the simultaneous availability of some incredible artists and record executives. . . ."

Together, Big Machine and Valory are two of the most successful independent projects in town, selling records for a stable of artists that includes the aforementioned Jewel, Taylor Swift, Trisha Yearwood, and Emerson Drive.

McEntire is expected to release a single with Valory Music next spring, with a complete album coming in the summer of 2009.

Technorati Tags: Reba McEntire,Scott Borchetta,Big Machine Records,Valory Music Co.,Nashville Entertainment Attorney,Jewel,Trisha Yearwood,Emerson Drive,Entertainment Lawyer,Music Lawyer

Law on the Row goes mobile!

2008-10-31T16:01:00.001-05:00

For those readers sporting new iPhones, Blackberrys, Windows Mobile smartphones or even for those diehard Palm fans who own Treos, Law on the Row is extremely pleased to announce that it is going mobile! The new mobile version loads faster on smaller devices with more limited web browsers. Just type in the following URL on your mobile device: http://lawontherow.mofuse.mobi. You enjoy the same great content, without some of the photos and links. It's a great way to keep up with articles on the road. Enjoy!

By the way, for fellow bloggers, you can create your own mobile website using your RSS feed at www.mofuse.com.

Bobby Don releases "Some Sunday"

2008-10-24T14:30:00.001-05:00

My client, Ric Landers and Your Place or Mine Digital, LLC were instrumentally involved in the release of the new single, Some Sunday, written by Emmy nominated songwriter Bobby Don Bloodworth and recorded with his band the Gopher Broke Band. The CD can be purchased here, or you can download and MP3 version. Here is the YouTube video for the song:

Your Place or Mine Digital operates a multitrack portable digital studio, with mix down and mastering capabilities which Ric can set up at any location.

Ric's relationship with Bobby Don dates back to 1990 when he was the studio manager and chief engineer for the famous Denny Music Group in Nashville. The duo decided to take the day off and go fishing on the Piney River when Bobby Don's recording session was preempted by an emergency session for Allison Kraus. The two have been friends ever since.

Bobby Don wrote Some Sunday as a retrospective on lessons that should have been learned from past wars, especially Vietnam, and to bemoan the hope of a quick end to the current conflict in Iraq. Bobby Don served in the Navy during Vietnam and knows all too well the pain and loss that goes with the atrocity of war as an eye witness.

The Radiohead Model

2008-10-21T11:25:00.001-05:00

Since it's release a year ago, Radiohead's online experiment with "pay-what-you-like" marketing has been blogged about, critiqued, and otherwise widely referenced as a viable model of marketing music in the Internet era. Earlier this month, Radiohead's publishing company, Warner/Chappell, released a report that sheds light on the sales figures for In Rainbows. The report was released in conjunction with a presentation by Jane Dyball, head of business affairs at Warner/Chappell, at the You are in Control conference at Reykjavik, Iceland.

For those of you who have been in a closet, Radiohead released the In Rainbows album on the Internet and asked those who downloaded it to pay whatever they like, even nothing if they so chose. The Warner/Chappell report indicates that collectively there were three million purchases of In Rainbows this past year, including digital sales through the band's webstore in the run up to the album's release, deluxe two-volume discboxes and, the physical CD sold through other digital outlets.

More specifically, the band moved around 100,000 of those (very nice!) discboxes, and the physical CD has sold 1.75 million units to date worldwide. Sales via iTunes racked up to approximately 30,000 copies during the set's first week of availability in June, making it the No. 1 album in the store that week. All of this despite the fact that the album also proliferated BitTorrent almost immediately after its online debut.

The report dubbed the Radiohead Model a success. In fact, the In Rainbows album is said to have generated more money in the three-month period prior to the physical release than the total amount of money generated by their 2003 album, Hail to the Thief, which was released via more traditional outlets.

Not only did the Radiohead Model prove successful for generating a buzz about the band, allow the band to obtain distribution and and sell physical product, it also enabled Radiohead to sell over 1.2 million tickets in their supporting tour.

The Radiohead Model is certainly a viable option for mid-level bands seeking to do their own thing via the Internet, but can it work for a small band seeking to break? Many in the industry will continue to maintain that a successful entertainment act will need the marketing support of a major record label in order to achieve sales in the range of Radiohead. Others will argue that success can be achieved by selectively marketing and generating the type of viral support that can be generated on the Internet through independent marketing and distribution networks. There is no doubt that major labels have the resources to almost instantly catapult an act to stardom. There is also no doubt that a few independent acts have achieved a high level of success without the assistance of the majors. As with most issues, there is probably a compromise solution here somewhere. And in that solution probably lies the future of the music industry. The major labels are starting to adjust to the whims and wills of the populace. But it's a difficult task to turn the Titanic. In the interim, the opportunities arise for the independent entrepreneurs to step in an take up the slack.

It is an exciting time to be part of the industry, even with all of its ebb and flow. New winds are still blowing and the sands are still shifting. Whatever the surviving landscape will look like, the Radiohead Model is one clue to its terrain.

Thomas verdict vacated; new trial ordered

2008-09-29T14:05:00.001-05:00

The trial in Capital v. Thomas was one of the first stories I began tracking over a year ago. See Jury Awards RIAA $222,000 against Thomas: My Thoughts on the Verdict and Jammie Thomas to appeal verdict in RIAA Litigation.

Now, in a decision issued on September 24, 2008 - only eight days shy of the one-year anniversary of the verdict - Judge Michael J. Davis of the United States District Court in Minnesota, who heard the case originally, vacated the $222,000 verdict against Jamie Thomas in Capital v. Thomas and ordered a new trial. Read the 44-page verdict.

Judge Davis found that he provided the jury with an erroneous instruction, Jury Instruction No. 15, which read:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

A fter reviewing case law in other circuits, Judge Davis reached the opposite conclusion in this memorandum and order, i.e. that "Liability for violation of the exclusive distribution right found in § 106(3) requires actual dissemination" and, therefore, the contrary assertion in the instruction substantially prejudiced the jury against Thomas.

In his opinion generally, the Judge Davis examined the reproduction right, the effect of MediaSentry's involvement in the distribution, the plain meaning of the term "distribution," whether the term "distribution" is synonymous with the term "publication" under the Copyright Act, and whether a plaintiff has the exclusive right to authorize a distribution.

The Judge refutes the RIAA's theory that making a copyright available for distribution violates Section 106(3) of the Copyright Act, which gives the owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Judge Davis examines the dictionary definition of the term "distribute," other sections of the Copyright Act, and provisions of the analogous Patent Act, to arrive at the conclusion that "the term 'distribution' does not including making available and, instead, requires actual dissemination." The Court noted that if it had intended to include "making available" as one of the means of distributing a copyright, Congress would have specifically added the language as it had done in the Patent Act when Congress amended it to forbade "offers to sell."

Judge Davis also refuted the Plaintiff's argument that the definitions of "publication" and "distribution" under the Copyright Act are synonymous as incorrect. His conclusion regarding this issue is worth quoting in its entirety:

The Court concludes that simply because all distributions within the meaning of §106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3). A publication can occur by means of 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.” § 101. This portion of the definition of publication defines a distribution as set forth in § 106(3). However, a publication may also occur by “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” § 101. While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution.

Congress’s choice to use both terms within the Copyright Act demonstrates an intent that the terms have different meanings. “It is untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of ‘distribution’ and liability under § 106(3) to include offers to distribute.” Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976,
985 (D. Ariz. 2008). The language of the Copyright Act definition of publication clearly includes distribution as part of its definition – so all distributions to the public are publications, but not all publications are distributions to the public.

Finally, in reaching its opinion that the jury verdict should be vacated because of the erroneous instruction, Judge Davis clearly states that it is not necessary to reach Thomas' issue of whether the award was excessive (See page 40 of his opinion). Nonetheless, he did indicate his leanings on this issue in dicta as follows:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to‐peer network cases such as the one currently before this Court. The Court
begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 42 737, 741‐42 (D. Md. 2003) (describing defendants as a “global financial‐services firm” and a corporation that brokers securities). While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

One issue I note in this dicta by Judge Davis is that statutory damages, as provided in the Copyright Act, were not necessarily intended only as a deterrent, but also were established because it is sometimes difficult to determine the value of an intellectual property. This does not, however, negate his primary point that a factor of 100x the actual damages might have been a more reasonable award than 500x the actual damages.

Expect to hear more about this case as the new trial unfolds.

Technorati Tags: RIAA Litigation,Music Lawyer,Entertainment Lawyer,Digital Downloads,MP3,Digital Music

Leadership Music honors Bradley Family with prestigious Dale Franklin Award

2008-08-27T13:57:00.001-05:00

When one thinks of Music Row, it is impossible not to conjure up thoughts of Music City's Royal Family, the Bradleys. Last night, Leadership Music awarded the prestigious Dale Franklin Award to Owen, Harold, Patsy, Connie & Jerry Bradley. The annual award recognizes music professionals who exemplify leadership qualities. The Bradley family is most certainly deserving of that title.

Owen and his brother, Harold, were among the first to build independent recording studios in Nashville and, in particular, built the famous Quonset Hut studios in 1955 at 804 16th Avenue South. The famous studio was the birthplace of the Nashville Sound, rockabilly, and spawned many notable recordings by Webb Pierce, Kitty Wells, Ernest Tubb, the Wilburn Brothers, Bill Anderson, Loretta Lynn, Conway Twitty and Patsy Cline. Other famous tunes recorded there include Sonny James's "Young Love" and Gene Vincent's "Be-Bop-a-Lula" (both Capitol, 1956), Marty Robbins's "Singing the Blues" (Columbia, 1956), Ferlin Husky's "Gone" (Capitol, 1957), Conway Twitty's "It's Only Make Believe" (MGM, 1958), Mark Dinning's "Teen Angel" (MGM, 1959), and Johnny Horton's "The Battle of New Orleans" (Columbia, 1959). Owen passed away in 1998 and is the subject of one of Music Row's most notable pieces of sculpture just off the circle at Demonbreun. The Curb Foundation is currently renovating and restoring the Quonset Hut Studio for tours and use by students in Belmont University's music industry program.

Harold Bradley, president of the Nashville chapter of the American Federation of Musicians since 1991, is one of the most recorded guitarist in the history of country music, if not music in general. He was part of Nashville's original "A Team" (the "Nashville Cats"). Harold played lead on the aforementioned Horton hit as well as Patsy Cline's famous tune, "Crazy," written by Willie Nelson. Bradley's list of appearances on hit recordings are too numerous to exhaust, but include most notably Eddy Arnold's "Make the World Go Away," Don Gibson's "Oh Lonesome Me," Brenda Lee's "I'm Sorry," and Roger Miller's "King of the Road." Other hits to which he contributed are Ray Price's "Danny Boy," Jeannie C. Riley's "Harper Valley P.T.A.," Bobby Vinton's "Blue Velvet," Burl Ives's "Holly Jolly Christmas," Faron Young's "Hello Walls," Tammy Wynette's "Stand by Your Man," and Conway Twitty's "Hello Darlin.'"

Jerry Bradley started with his father Owen in the Bradley Barn, a studio located in the outskirts of Nashville in Mt. Juliet, Tennessee. The Bradley Barn produced such notable artists as Gordon Lightfoot, Joan Baez and other pop acts. Jerry went on to head the RCA label in Nashville, developing the successful "Outlaw" concept with Willie, Waylon, Jessie Colter and Tompall Glasser. From there, Jerry took over the reins of Opryland Music Group and Acuff-Rose Music Publishing for awhile and then went to work in the publishing end of the business.

Connie Bradley, Jerry's wife, is a leader in the music industry as senior vice president of ASCAP. She has been honored many times, including being named "Lady Executive of the Year" by the National Women Executives and recipient of Nashville Symphony's 2006 Harmony Award just to name a few. She is frequently identified by Nashville magazines and publications as one of the most powerful people on Music Row, male or female!

Together with last year's Dale Franklin Award recipient, Ms. Frances Preston, Patsy Bradley was instrumental in starting the Nashville office of BMI, and retired as assistant vice president of that organization.

Other members of the Bradley family currently active in the industry include Clay Bradley, who is a recording executive at Sony Music's Nashville operation and Bobby Bradley Jr. who is a studio engineer.

Troy Tomlinson, who worked for Jerry Bradley at Acuff-Rose and is now CEO of Sony/ATV Publishing in Nashville, gave one of the most enjoyable keynote speeches of the event, which actually came across as more of a roast! Tomlinson noted that among the five Bradley family members honored -- each individually having between 30-50 years of involvement in Nashville, -- they have over two centuries of influence on Music Row. Truly a remarkable achievement.

The award dinner was held at Loew's Vanderbilt. On hand to honor these remarkable leaders were artists influenced by them, including Ronnie Milsap, Kenny Chesney, Kelly Pickler, Gretchen Wilson, Lee Ann Womack and Mandy Barnett. One of the most stirring performances for me was Ronnie Milsap singing his 1977 hit single, It was almost like a song, undoubtedly one of the most well-crafted songs ever.

Technorati Tags: Music Industry,Music Row,Nashville Entertainment Attorney,Nashville

Best Wishes to my old friend, Will Hoge

2008-08-22T15:39:00.001-05:00

I want to take this opportunity and use this forum to wish Will Hoge and his beautiful family best wishes in this difficult and painful time, and offer my family's prayers for a speedy recovery. Will was one of my first clients when I started practicing entertainment law in Nashville -- I negotiated one of his first publishing deals with Big Fish Entertainment -- and he has always been one of my favorites.

Hoge is in Nashville's Vanderbilt University Medical Center following an accident involving his motor scooter. The accident occurred August 21st on Main Street in East Nashville.

News reports surfacing today identified his condition as critical, but hospital officials state that he is expected to recover from his serious injuries.

Hoge was apparently forced to collide into the passenger side of a Millicare Carpet Cleaning Van, which, according to police, failed to yield at a turn. There was no evidence of alcohol or drugs involved in the accident.

Will is without question one of Nashville's most talented Americana singer-songwriter performers in any genre - just the right blend of grit, rock, country, blues and soul rolled up in a big ball of scruff and playing a Stratocaster!

Will, 35 years old and Julia Schmidt have a beautiful 16-month old son, Peyton Liam Hoge. Hang in there Will, and keep on rockin' for us.

Technorati Tags: Will Hoge,Accident,Scooter,Entertainment,Music

Sugarland Lawsuit filed in Georgia illustrates need for prior provisions among band members

2008-08-15T11:30:00.001-05:00

On August 7th, a lawsuit was filed by Kristen Alison Hall, former member of the all-female country band, Sugarland, against the remaining original members of the band, Jennifer Nettles and Kristian Bush. A copy of the complaint can be viewed here.

Essentially, the lawsuit alleges that Nettles and Bush breached a partnership agreement between the three members, breached their fiduciary duty to Hall, and failed to account to her for partnership profits. Among other facts alleged, Hall claims that she contributed the trademark, "Sugarland" to the partnership. A search of the trademark database at www.uspto.gov shows that the partnership owns two marks: a service mark for live performances, Reg. No. 2747326, and a trademark for merchandise, Reg. No. 3250679. All three original members, Hall, Nettles and Bush, are identified as the registrants on these marks.

More about the lawsuit can be gleened from this article in the Atlanta Journal-Constitution, written by entertainment journalist Shane Harrison, with contributions by Rodney Ho. Yours truly is cited as a resource in the article.

This lawsuit provides a dramatic visual aid as to why it is so important for musical groups to plan in advance with regard to issues such as who owns the band name in the event of a dispute. Either a band partnership agreement, or a properly established limited liability company or corporation, can effectively provide for what happens to the name in the event a member leaves. One method I commonly use is to establish a limited liability company and assign the trademark and trade name to the company. Provisions for what happens to a member that leaves the LLC are then incorporated into the Operating Agreement which set forth the procedure for valuing the company's assets in that instance. Such a structure could have eliminated the need for a lawsuit such as the one that Hall filed against the other two members of Sugarland.

If your band does not have a written document dealing with this issue, you should consider retaining an entertainment attorney for such purposes, particular if your band is starting to generate significant income.

Technorati Tags: Sugarland,Entertainment Lawyer,Music Lawyer,Breach of Partnership Agreement,Band Partnership Agreement,Entertainment law,music law,country music,Litigation,Entertainment litigation

Second Circuit gets it wrong in Cartoon Network v. Cablevision

2008-08-05T16:13:00.001-05:00

On August 4, 2008, the Second Circuit court of appeals overturned a lower courts opinion that Cablevision's Remote Storage” Digital Video Recorder ("RS-DVR") system violated the Copyright Act by infringing plaintiffs’ exclusive rights of reproduction and public perf ormance. The full 44-page opinion is available at Cartoon Network, LLP, et al. v. Cablevision. In my humble yet fully animated opinion, the Second Circuit's opinion was not at all well reasoned nor, for that matter, even common sense -- I believe it misinterprets at three very important areas of the Copyright Act and interpretation thereof:

When is a work "Fixed" According to Section 101

Through a system of buffers, Cablevision's RS-DVR will allow customers who do not own stand alone DVR's to record programming, which resides on Cablevision's servers, and "time-shift" it to view it at a later date. Certainly a great concept, but one which, in my opinion, should require authorization from the owners of the copyrights.

In arriving at its conclusion, the court determined that the buffer used to process the steam of data only "copies" the data for a duration of 1.2 seconds, before transferring it to another buffer used to reconstruct a copy of the program for any customer who has asked to view it at a later time. The court concluded that this "embodiment," i.e. the copy, was transitory in duration and therefore not "fixed" pursuant to Section 101 of the Copyright Act. Therefore, the copyright owners' right of reproduction was not violated. This is clearly erroneous reasoning:

The definition of "fixed" in Section 101 of the Copyright Act states, in its entirety:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

In arriving at its determination, the Second Circuit focused on its condensed version of the definition, i.e. a work is “fixed” when its embodiment “. . . sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.” The court concluded, based on this shortened version of the definition, that the "language plainly imposes two distinct but related requirements, i.e. an "embodiment requirement" and a "duration requirement."

The Second Circuit's error is grammatical in nature: it misinterprets the language of the definition of "fixed" by assuming that the phrase "for a period of more than transitory duration" modifies the words "permanent or stable" when in fact it actually modifies the antecedent phrase "permit it to be perceived, reproduced or otherwise communicated." This is certainly the case with regard to the RS-DVR - it fixes the copies for in sufficiently permanent state in one buffer (i.e. the 1.2 seconds) to permit them to be reproduced in another buffer for a period of more than transitory duration. Thus, the court got it wrong.

Without getting into too much detail, the court also incorrectly analyzes a 9th Circuit cases, MAI Systems and its progeny which correctly apply the definition of fixed to a copy of a work created in RAM memory for a period of minutes. The effect of this misinterpretation is to put legal practitioners in the precarious position of trying to determine at what point between 1.2 seconds and 2 minutes does a reproduction arrive at a "more than transitory" state.

Ironically, the Second Circuit ignores the U.S. Copyright Office's analysis of this precise issue in its 2001 report on the Digital Millennium Copyright Act which elaborated that a work was fixed "unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated." This clarification is in line with my earlier interpretation that the phrase "more than transitory in duration" modifies the communication or perception, not the embodiment itself. The Second Circuit stated that, in its mind, the U.S. Copyright Office's interpretation "reads the 'transitory duration' language out of the statute." To the contrary, however, it is the correct interpretation in that it incorporates the transitory duration requirement into the appropriate section of the definition.

Finally, the Second Circuit completely ignores the last sentence of the definition, to wit: A work . . . is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission." In this instance, the court readily admitted that an unauthorized copy of the work was stored, i.e. "fixed" on Cablevision's servers simultaneously with its transmission.

When is an infringer not an infringer?

In extending recent trends by some circuits to weaken the strict liability component of the Copyright Act, the Second Court refused to find that Cablevision was a direct infringer. Instead, it rules that the customer is the direct infringer in this instance of digital recording, showing his or her intent to make a copy when he or she presses the record button on the remote. The court reasons as follows:

In this case . . . the core of the dispute is over the authorship of the infringing conduct. After an RS-DVR subscriber selects a program to record, and that program airs, a copy of the program–a copyrighted work–resides on
the hard disks of Cablevision’s Arroyo Server, its creation unauthorized by the copyright holder. The question is who made this copy. If it is Cablevision, plaintiffs’ theory of direct infringement succeeds; if it is the customer, plaintiffs’ theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs.

Emphasis mine. The first thing to note about the court's conclusion is that it realizes, right off the bat, that the copy created on the servers of Cablevision is an infringement. In its mind, however, the only question is who made the copy. Now, that, of course, flies directly in the face of a host of copyright concepts which I will not address here, but suffice it to say that this is problematic.

But, for the moment, let's just examine how the court ultimately determines who had the "volition" to infringe in this specific case:

There are only two instances of volitional conduct in this case: Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy, and a customer’s conduct in ordering that system to produce a copy of a specific program. In the case of a VCR, it seems clear–and we know of no case holding otherwise–that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

The court then continues its analysis by example, offering the examples of a retailer who owns a photocopier and rents it out to the public as reinforcement of its conclusion, finding that because the retailer would not be liable for infringement, neither should Cablevision. Despite the fact that there is case law holding that such a retailer WOULD, in fact, be liable for infringement, the Second Circuit errs in failing to see the difference between a VCR in the analog world, a single, stand-alone device used express by the customer, and a process devised by a company which makes infringement as simple as pressing my record button on my remote. The court does not find this a "sufficient" distinction. The court's error in logic is apparent in this prose when it examines a 6th Circuit case on the issue:

In determining who actually “makes” a copy, a significant difference
exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Is this 2001 Space Odyssey? Did H.A.L. take over when I wasn't looking? Who programmed the system?

If this were not enough, the Second Circuit then performs a great deal of legal gymnastics to support its finding: First, it examines the video on demand process to illustrate that Cablevision does not have control over the transmissions being recorded by the subscribers in the RS-VCR system. Are they for real? Ever heard of apples and oranges. The VOD system is a fully licensed process which is, dare we say it, nothing like the RS-VCR system. Secondly, the Second Circuit uses the distinction between "active" and "passive" infringement under the Patent Act to jump to the almost humorous, if it weren't so wrong, conclusion that:

If Congress had meant to assign direct liability to both the person who actually commits a copyright-infringing act and any person who actively induces that infringement, the Patent Act tells us that it knew how to draft a statute that would have this effect.

Every intellectual property attorney worth his or her salt knows that the Copyright Act and the Patent Act are very limited in their usefulness for purposes of using one to interpret the other. That's why it's said that the Copyright Act is a strict liability statute, whereas, the Patent Act is not so much.

When is work "publicly performed"?

The final error committed by the court is in its analysis of whether the buffered copy delivered to individual customers was "publicly performed." In this regard, the Second Circuit concluded:

under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.

Again, the Second Circuit has to do a hatchet job on the definition of "public performance" in order to arrive at this convoluted conclusion. The definition of "public performance" in the Copyright Act is actually found in the "publication" definition of Section 101. It states, in its entirety:

To perform or display a work “publicly” means —
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Emphasis mine. Whereas the Second Circuit zeroed in on the phrase "to the public" in making its determination, the definition clearly intends to define public performance as any process that allows the public, in general, the ability to receive the transmission, whether or not it is in the same place or the same time. Its not very difficult to see the fallacy of the Second Circuit's reasoning. The Cablevision RS-DVR clearly does precisely what the definition anticipates, it creates multiple copies stored in the buffers for individual subscribers in multiple places, who then view the (buffered) transmissions at different times.

While this seems simple, the Second Circuit jumps through numerous irrational hoops to arrive at the idea that:

the transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons “capable of receiving” it, to determine whether that transmission is made “to the public.”

Nothing in the statute dictates this conclusion, to the contrary, the legislators probably thought that the word "public" was generic enough to not need interpretation.

The effect of this ruling, at least for now, is that anyone can make digital copies of any copyrighted work on their servers for purposes of transmitting to an individual customer, so long as that individual customer makes a request for it, and there is no implication of the performance rights.

This is a fine example of a court "reasoning" the meaning completely out of a statute.

Conclusion

If it is not obvious by now, I think this is one of the most poorly reasoned and drafted opinions by a Circuit Court that I have read in a long time. If there is a bright side, it is that the effect of this decision is primarily that it overturns the grant of a summary judgement by the lower court. From a broader perspective, however, and the more unfortunate result is that, because of the concept of stare decisis, this reasoning can now be cited in other cases in other jurisdictions across the country as good law. So, unfortunately, we entertainment attorneys will be dealing with the negative impact of this decision for some time to come, until perhaps some higher court, in this case the Supremes, decides to rectify it.

Technorati Tags: Copyright Infringement,Direct Infringement,Contributory Infringement,Fixation,Public Performance,Performance Royalties,Digital Downloads,Intellectual Property,Internet Law,Computer Law

CRB Announces Addition of New Board Members

2008-07-21T13:55:00.001-05:00

Effective immediately, the Country Radio Broadcasters, Inc.® has announced the addition of three new executives to its Board of Directors:

Clay Hunnicutt, Senior Vice-President of Programming, Clear Channel, Atlanta. Clear Channel is the largest operator of radio stations in the country. As the person in charge of programming for Clear Channel's 200 plus country radio stations, Hunnicutt must have an inside track on what's going on in country music. In an article for the American Chronicle, Hunnicutt says of his job "I love what I do because it affords me the flexibility to not only focus on the Country format but also to be able to look at and understand all formats." See, Clay Hunnicutt: Clear Channel's Country Connoisseur.

Renee' Leymon, Senior Director of National Promotions at Lyric Street Records in Nashville. Leymon has been part of promotions at Lyric Street Records since 1998, when she landed there after a stint with Arista Nashville; and

Keith Kaufman, has been Program Director at WSIX-FM Nashville since 2004, when he was responsible for making dramatic changes to WSIX's slogan, positioning and airstaff in order to rebuild its "big" position in the country music market. WSIX is, of course, the mother ship of country radio as the first successful country music formatted station on the FM dial in the US.

The current list of directors to which the trio will be added are identified on CRB's web site (Click here to view). Hunnicutt fills the void left as a result of Gregg Swedburg's recent resignation. Kaufman and Leymon fill two newly created at-large positions, which expire in March 2009 and March 2010, respectively.

The CRB is a non-profit organization founded in 1969 to support the country radio format. The organization has done a great job at this task over the years by organizing various industry events and seminars across the country, one of which is the well known Country Radio Seminar which is held annually in Nashville. CRB is also the trustee for the Country Music DJ Hall of Fame, founded in 1974. Ed Salamon is CRB's current director.

Kaufman and Leymon are also serving on this year's Agenda Committee for the 40th annual Country Radio Seminar.

When asked to comment about the new Board appointments, CRB president and board member Becky Brenner stated "it is always a tough vote because we have so many deserving individuals who apply to serve on the board. These three individuals have been long time supporters of the Country Radio Broadcasters and the Country Radio Seminar. Their individual talents and passion will help to lead us into our next 40 years."

General information about Country Radio Broadcasters, Inc. may be obtained at their website www.crb.org or by calling the CRB office at 615-327-4487.

Technorati Tags: Country Music,Country Radio Format,Country Radio Broadcasters,Nashville,Music Industry

All that glitters is not gold - tips on analyzing a songwriting/band contest

2008-07-17T15:20:00.001-05:00

When is the last time you heard of someone getting a really "big break" in the music industry through any contest, other than perhaps American Idol? That's because most artists and songwriters are not discovered through contests, they are discovered through relationships in the industry.

Yet, there are literally hundreds of such contests out there promising thousands of dollars in prizes or a opening slot for a well-known band, or a recording label or songwriting deal -- everything but the kitchen sink!

I don not, by any means, mean to say that all contests are rip-offs. There are, in fact, many legitimate contests in which songwriters and entertainers may participate. I do mean to recommend, however, that you do a bit of research and exercise some good judgment prior to sending your submission off into the digital divide.

First, there are some very simple questions to ask yourself initially as you examine these "one in a lifetime opportunities. Look at the source or sponsor of the contest. Often times, their reputation proceeds them. Have you ever personally heard of the contest sponsor? What are the credentials of the sponsoring entity? Have you read about them in any public forum such as a magazine, news article, or online resource? What successes have they achieved in songwriting and/or the music industry, if any? Who are the judges? What are their credentials. Are there any major advertising sponsorships associated with the contests? What are the prizes? Are they substantial? Answers to most, if not all, of these questions can be derived through a simple online search.

Let's say you've done all of the above research and determined that the contest is sponsored by none other than MTV? To most songwriters and artists, there could be no greater sponsor than MTV, correct? But before acting too hastily, let's move into the second phase of analysis, i.e., taking a look at the RULES.

Now, assume that you determined that since MTV was the sponsor, it must be a great opportunity, so you jump right in with both feet, or in this case, your best demo tape! A chance to open for a great headline act is waiting for the lucky winner! Unfortunately, if you did not read the fine print, you just agreed to the following:

release and hold harmless Sponsor Entities against any and all claims, injury or damage arising out of or relating to participation in this Contest and/or the use or misuse or redemption of a Grand Prize and for any claims based on publicity rights, defamation, invasion of privacy, copyright infringement, trademark infringement or any other intellectual property related cause of action. . . . (emphasis added)

This language comes straight from the rules and regulations in a ongoing "Rock the Revolution" contest sponsored by mtv2.com. See the Rules and Regulation page. This is typical hold harmless clause, which effectively negates any rights or claims you may have otherwise had to bring a civil action against MTV in the event that you are injured as a result of the contest.

In addition, MTV also states in their terms of agreement that:

The approximate retail value (the “ARV”) of the Grand Prize is $150.00. Any difference between the ARV and the actual value, if any, will not be rewarded. If, for any reason, the Grand Prize related event is delayed, cancelled or postponed, MTV reserves the right, but is not obligated, to cancel or modify the Contest in its discretion and may award a substitute prize of equal or greater value.

This effectively means that you could end up getting only $150 as the "grand prize winner" if the concert is canceled for any reason by the headlining act. A corollary effect net effect is that, at most, your damages in a civil lawsuit probably would be limited to $150, the agreed retail value (i.e., by agreeing to their terms, you and MTV agreed to this amount).

Finally, by simply clicking the "I Agree" button on your web browser without first reading the fine print, you also agreed to grant MTV a non-exclusive right, among other things, to record your submission by virtue of the fact that you are a finalist? See this clause from a real contest:

Finalists and Winner agree that by entering into this Contest they are granting MTVN. . . the non-exclusive, irrevocable right and license to exhibit, broadcast, copy, reproduce, encode, compress, encrypt, incorporate data into, edit, rebroadcast, transmit, record, publicly perform, create derivative works of, and distribute and synchronize in timed relation to visual elements, the Submission Materials and/or any portions or excerpts thereof, in any manner, an unlimited number of times, in any and all media, now known or hereafter devised, throughout the world, in perpetuity. . . .

While this is non-exclusive license, meaning that you can issue other non-exclusive licenses to third parties, it does give MTV pretty broad rights to use your submission in almost any form they want. This doesn't necessarily mean that you shouldn't participate in this contest, it is just something you should certainly understand and use in weighing your decision.

Believe it or not, this grant is pretty tame compared to the language of other contests I have reviewed for clients. I've seen situations where a contestant ostensibly assigns the copyright in a song submitted for a contest to the sponsor. So beware. Make sure there is something in the rules that indicates that you are not transferring any rights or licenses in the submission.

These are just few examples of some of the lawyerly devices that can be utilized in the rules and regulations of a contest, particularly an online contest which a "click agreement" in place. Before you submit your intellectual property, it is probably worth the money to pay a few hundred dollars to an entertainment attorney to advise you as to what the legal ramification are for you and/or your band.

Technorati Tags: Songwriting,Music Lawyer,Entertainment Lawyer,Entertainment Law,Bands,Songwriting Contests,Band Contests,Music Law,Copyright,Entertainment Contracts,Click Agreements

Does Harvard have Chris Anderson by his long-tail?

2008-07-14T11:32:00.001-05:00

A major debate is being spawned by a recent article entitled "Should You Invest in the Long Tail," written by Anita Elberse, an Associate Professor of Business Administration at Harvard Business School. The debate concerns the accuracy of Chris Anderson's long tail theory, set out in great detail in his 2006 book, The Long Tail: Why the Future of Business is Selling Less of More.

A summary of the debate is given in this analysis by Glenn Peoples of Coolfer.com. Mr. Anderson's initial response to Elberse's criticism's can be found here and then her subsequent response here.

The long tail theory is an idea that contrasts with the "blockbuster strategy" of marketing, which Elberse accurately describes as "age-old," i.e. that the limited retail shelf space for media and entertainment product dictates that retailers should maximize their profits by focusing their marketing efforts on the relatively small number of "best sellers." This is, of course, best exemplified in today's economy by the Wal-Mart approach. It is, of course, the marketing philosophy that has been used by the major entertainment conglomerates for their entire history of existence. The "blockbuster" product is at the peak of a bell curve, where the demand exists, the trailing end of which has long been described by the economic phrase "long-tail." See Elberse's illustration below:

The basic idea behind Anderson's long tail theory is that the Internet has changed the way consumers look for media and entertainment product. Now that a music consumer can find and afford products more closely tailored to their individual "niche" tastes, i.e., further down the long tail, they will migrate away from the homogenized "blockbuster" hits. Anderson argues that the future of online retail demands a focus that shifts away from blockbusters centers on the long tail—niche offerings that cannot profitably be provided through brick-and-mortar channels. (See Elberse's sidebar “The Long-Tail Theory in Short.”). Elberse seeks to refute the idea that the long tail is being "fattened" by the online availability of more obscure and less marketed products.

If you are in the music industry, it is well worth following this debate. While I will not attempt an in-depth analysis of Elberse's criticisms here - I'll leave that to the capable Mr. Anderson -- I do desire to point out what I believe is a very obvious weakness in Elberse's comments:

To support her conclusion that the long tail is "long but extremely flat—and, as online retailers expand their assortments, increasingly so," Elberse states that she relies on Nielson SoundScan data. She concludes:

The Nielsen data cover multiple retailers, multiple channels, and multiple years, offering a wealth of material to test aspects of Anderson’s long-tail theory. What emerges is not a rosy picture of the fate of long-tail products: the tail increasingly consists of titles that rarely sell and that are produced by smaller-scale players.

See The Long Tail Debate: A Response to Chris Anderson.

These assumptions about the SoundScan are flawed, I believe. While Elberse is correct in her assessment that the "data cover multiple retailers, multiple channels and multiple years," I believe it overlooks the fact that SoundScan data is ONLY collected via POS, i.e. "point of sale" collection points. This means cash registers and/or UPC bar code scanners. The UPC code is the series of black and white lines appearing over a numeric code, which appears on virtually everything on the market today.

That is how the "Scan" portion of the name "SoundScan" is derived. When a UPC code on a product is scanned for sale, that UPC data is collected and a stored in a text file, which is delivered to Nielson on a weekly basis. Nielson then collates and formats the data into what we know as the Billboard charts. While the data may include some online retailers, its predominant focus is still on the physical product that sits on the shelves in retail outlets and warehouse all across America. In other words, SoundScan's predominant purpose - the reason it was created - is to track physical sales which, it turns out, is only the product that falls into the "head" of the long tail. SoundScan's focus is indubitably not on digital downloads, even though it has obviously made attempts to incorporate the trend in its charting scheme.

Naturally, if a person focuses primarily on the product that exists in the head of the tail, the conclusions reached by that person about what exists in the long tail are going to be slightly skewed.

Elberse might counter this assertion by claiming that she also relied on the Rhapsody data to determine what obscure music was selling in the long tail. Her use of this data is understandable, since Mr. Anderson also relied heavily on the Rhapsody data in drawing many of his conclusions in The Long Tail. I think this reliance on Rhapsody data falsely assumes that what Rhapsody is selling is indicative of what is selling across the entire spectrum of the Internet. Last time I checked, however, Rhapsody had about a 3-4% share of the entire music download market!

This, I believe, is a fatal foundation for many analyses of the digital music revolution and, consequently, of the validity of the long tail. I'm not aware of any comprehensive analysis that includes data from not only the mega online powerhouse, such as iTunes of course, which has about a 70% share of the digital download market, but also retailers of independent, less market-driven music, such as eMusic -- which, by the way, has a respectable 10% of the market share of digital downloads. It is the success of the later that, in my humble opinion, deserves more consideration in any analysis of the viability of the long tail approach to today's digital market. I can only speak for myself - I buy more music from eMusic than I do from iTunes, Zune, Amazon and Rhapsody combined. So, to all of you researchers out there, please incorporate some serious data from the long tail! Until that type of analysis is done, the conclusions drawn by Elberse must be viewed as somewhat suspect or, at the very least, only applicable to the specific subset of data she analyzed, i.e., not extrapolated to the entire music download market as a whole, but limited to SoundScan and Rhapsody.

Technorati Tags: Digital Downloads,Chris Anderson,The Long Tail,Music Industry,MP3,Music Law,Music Lawyer

Barry Shrum's interview with DigiMusicTV.com

2008-07-10T15:59:00.001-05:00

I was surfing around yesterday and discovered that my interview with DigiMusicTV.com, recorded in 2007, was recently posted on brightcove. Here it is in all it's glory:

Kristi Lee Cook signs with Nashville Label

2008-07-01T16:49:00.001-05:00

According to news reports that broke first on Fox yesterday, then appeared on CMT and Billboard, Kristi Lee Cook, who took seventh place in this year's seventh season of American Idol, signed a recording agreement with 19 Recordings/Arista Nashville, a Sony BMG label. This is Kristi's second attempt at success on the Arista Nashville brand, as she had a prior deal with the label signed in 1999 at the age of seventeen. She was dropped from the label before producing any product, despite a commitment from Brittany Spears to appear with her in her first video.

The lawyer in me wonders whether this is actually a new deal, or whether Arista Nashville simply called in its rights under the prior agreement, as most recording contracts are not based on a strict term of years, but rather a length of term that involves delivery requirement.

Arista Nashville is, of course, home to two other American Idol favorites, Kellie Pickler and superstar Carrie Underwood. In fact, Cook's new master will be produced by the co-writer of Carrie's smash, Jesus Take the Wheel, none other than longtime Nashville songwriter Brett James.

The first song out of the gate, 15 Minutes of Shame, will hit the airwaves on August 11. The entire album is expected to be on store shelves in the fall.

Past American Idol contestants seem to fair well in the country music arena, as witnessed by not only the successful careers of the aforementioned Underwood and Pickler, but in top selling product from rocker turned country rock, Bo Bice, Bucky Covington and Josh Gracin, whose albums have topped Billboard's country charts.

Technorati Tags: Country Music,Kristi Lee Cook,American Idol,Arista Nashville,Music Row

Hey, what's the big idea? Protecting your ideas when submitting them to a third party.

2008-06-12T16:07:00.001-05:00

One question clients often asked me is whether an idea can be protected. The question frequently arises when a client has an idea for a screenplay, or an outline for a story, or a unique title for a song or book, and wishes to submit or “pitching” that idea to a major movie house, publisher or record company. While it is fairly common knowledge that an “idea” cannot be copyrighted, it is important to know that there may be certain types of protection be available for the intellectual properties contained in such a proposal pursuant to current laws, specifically trademark and copyright laws. This article analyzes and summarizes your rights under each of these two areas of law and offers suggestions for protecting your legal rights when “pitching” ideas.

Protection Under Trademark Law

Titles and names may be entitled to trademark protection at both the state and federal levels by anyone claiming a right to use such a title or name in connection with certain specified trades or services. These types of marks are commonly designated by use of the “™” and “®” symbols, indicating respectively that registration of the mark has been applied for and registered on the Primary Register. To be entitled to use these symbols in respect to a mark, a person must apply for and receive a federal or state trademark.

In most states, a state trademark can be applied for in the Secretary of State’s office. The application is a simple form and payment of a nominal fee is required. Protection at the state level is, however, somewhat more geographically limited than that of a federal mark. The application process for a federal mark is much more tedious, complicated and costly than that of the state trademark process. In addition to legal fees which will, most likely, be incurred, the application fee for each international classification of goods and services is $325.

Protection Under Copyright

As stated earlier, with regard to copyright law, and speaking very generally, an idea, in and of itself, is not entitled to copyright protection. Rather, it is the expression of an idea that can be copyrighted.[1]

It is not always clear from the case precedents, however, when an idea becomes developed enough to rise to the level of an “expression.” Some examples of expressions of ideas that have been protected are a screenplay similar to the old television series A-Team,[2] an employee survey regarding employee satisfaction,[3] and a particular section of categories appearing on a form for collecting baseball pitcher statistics.[4] On the other end of the spectrum, courts found that (1) a manual of operation for patented leaching system. [5] and (2) the addition and arrangement of facts to legal opinions [6] were not protectible expressions of ideas. The only general rule that can seemingly be extracted from this convoluted line of cases is that the more an expression diverges from the mere recitation of raw facts, the closer it gets to expression, as that the courts legally recognize that term.

Is your Idea Literary or Business in Nature

There is another, albeit tangential issue which is relevant and should be briefly discussed here, i.e., whether an idea is literary or business in nature:

Literary ideas are those that, upon development, would become literary property and hence clearly eligible for copyright protection. Literary ideas include ideas for motion pictures,[7] radio programs,[8] and television programs.,[9]

Business ideas, on the other hand, even when fully developed, may not be copyrightable. ,[10] Business ideas are those that relate to methods of conducting businesses, such as bank night in theaters,[11]contests, [12]and credit rating systems.[13] Here again, however, the more an idea, even a business idea, departs from mere factual recitation, the more it is likely to be considered literary, and therefore entitled to protection under copyright law.

When does an idea rise to the level of expression?

So, let’s now return to the primary issue of when an idea rises to the level of an expression entitled to copyright protection?

In their attempts to deal with the dilemma, courts have created a body of case law which attempts to strike a middle ground between the comprehensive protection of copyright on the one hand, and the complete denial of any legal protection for ideas on the other. I will attempt to delineate and evaluate some of the legal theories on which a person may be able to rely to render an idea legally protectible, the underlying tort theory of which is known in legal circles as “idea misappropriation.”

In brief, the elements for a claim of idea misappropriation are, first, the idea must be novel and concrete, and, second, there must be a legal relationship between the parties, whether by an express contract, a contract implied-in-fact, a quasi-contract, or a fiduciary relationship.[14]

Novel & Concrete Element

In instances where they have dealt with the protectibility of an idea, the courts hold the plaintiff to a greater burden of proving not merely that the idea is original (as in copyright protection) but that it is actually novel,[15] i.e., “not formerly known; of a new kind.”[16] This standard is, for most courts, a great standard to meet than that required by copyright, i.e., that a work be original – although some courts do confusingly use the terms interchangably.

The second component of the first prong, “concreteness,” in essence requires that an idea be sufficiently developed so as to constitute “property.” By its very nature, this requirement is intentionally vague, allowing the courts great flexability in applying it. One court described the concept as follows

while we recognize that an abstract idea as such may not be the subject of a property right, yet when it takes upon itself the concrete form which we find in the instant case, it is our opinion that it then becomes a property right subject to sale.[17]

This is, as pointed out, a rather vague element. This is sort of like how U.S. Justice Stewart Potter described hard-core pornography in Jacobellis v. Ohio, i.e., it’s difficult to define, but “I know it when I see it.” So, in short, the more developed an idea becomes, the further it goes toward dispelling any doubt as to whether the idea is “concrete.”

Legal Relationship Requirement

The second prong of the test, i.e., the legal relations prong, can complicate matters when it comes to submitting an idea to a third party. Whether a legal relationship exists between the parties depends, as does everything in law, on countless fact scenarios to the degree that one small change in a fact pattern can affect the outcome of interpretation.

Most often, clients “pitch” their ideas to a third parties for consideration in hopes that they will take the idea and “run with it.” But in such instances, it is important to be aware that the method by which an idea is submitted can directly impact whether or not there is a legal relationship.

A non-disclosure and confidentiality agreement with a publisher, for example, would create such a relationship beyond any doubt. This is one end of the spectrum. This method can easily be dispensed with since it is difficult enough to get a publisher’s attention, for example, much less without the added complexity of having to get their legal department involved. Most people will likely submit the idea directly to a publisher, either with or without permission, without any such NDA, or they will submit the idea through an agent of some sort. Each of these variations result in different treatment.

For example, courts have held that if an idea is submitted without solicitation and without advance warning, the idea is not protectible, even if it later turns out to be valuable.[18] There is one variation of this fact pattern, however, where one might successfully argue that an implied contract results because of an implied solicitation by the idea recipient. This occurs where the recipient is engaged in a trade or industry (such as the entertainment or publishing industry) that, by custom, purchases ideas of the type submitted. A book or music publisher, as an idea recipient, makes a continuing offer to pay for any submitted ideas that it elects to use. Thus, an unsolicited submission is not an offer that necessarily requires further conduct by the publisher to establish an acceptance, but rather can be viewed as an acceptance of the publisher’s implied continuing offer. Although no court has expressly recognized this theory, courts have implicitly adopted it by recognizing an implied agreement based upon custom where such a factual pattern can be established.[20] I caution in advance, however, that this is a minority opinion, not expressed by the majority of courts.

Some courts, particularly but not exclusively those in California, imply an affirmative duty on the part of a publisher to reject an unsolicited submission or else the legal relationship is created – hence the practice of most publishers to advertise “no unsolicited submissions.” Under this so-called “failure to reject” theory, any means of notice that gives the publisher some sort of advance warning of, and an opportunity to prevent, a proposed idea submission is sufficient to establish an implied contract if the recipient then permits the submission to be made.

Thus, the following examples may create such an affirmative obligation on the part of the publisher: (1) enclosing the proposed idea in a sealed envelope accompanying an unsolicited transmittal letter that explains that the contents of the sealed envelope contains such a submission, or (2) a series of two unsolicited letters, the first explaining the intended submission and the second in fact containing the idea to be submitted. [20]

If a publisher specifically requests the submission of an idea, a legal relationship is clearly established creating an obligation to pay the creator if the idea submitted is used. [21] So finding a creative way to solicit a request from a publisher is also a very good means of securing protection for you idea.

Finally, it may come as no surprise that utilizing the services of a agent will help protect your ideas. It may be inferred that the recipient of an idea submission has knowledge of an expectation of payment for the idea when the submission is arranged by a person whose known occupation is that of representing idea purveyors, such as a book or movie agent. “This fact alone must have indicated to [the recipient of an idea submission] that the persons whom the agent brought together with him were not social callers.'' Donahue v. Ziv Television Programs, Inc. 54 Cal. Rptr. 130, 138 (Cal. App. 1966).

Conclusion

As you can clearly see, the question of whether an idea can be protected is not an easy one to answer in any specific situation because the answer depends so heavily on the individual fact pattern of each case. Although it may not be apparent from its length, this article in no way exhausts the body of legal information and case law that exists with regard to the protectible nature of an idea. Therefore, if you have questions concerning this issue, please contact a respected entertainment attorney.

Having stated this, with regard to submission of ideas in general, the following are recommendations that can be followed:

(1) First, trademark all slogans, titles or name, at the very least your state level, but preferably at the federal level;

(2) Make sure the idea is as fleshed out as it can be, i.e. as “concrete” as possible. Rather than a mere outline, insert summaries of each bullet point. Then, flesh out selected points, e.g., create a summary of each chapter of a particular example book, or maybe even two or more examples of each. Then, create a few complete chapters of a books, for example;

(3) Mark everything confidential and, in addition to the copyright notice generally included, add the phrase “All rights reserved” after it. The copyright notice and your intent to be the owner of the copyright should be clearly indicated in the beginning of the correspondence;

(4) Attempt to procure an agent, and ask if the agent is willing to enter into a non-compete and confidentiality agreement;

(5) As an alternative to paragraph (4), solicit the publishers by telephone or in some other general fashion, preferably with written followup, to encourage them to “solicit” the work in advance; and

(6) As an alternative to paragraphs (4) and (5), place your idea submission in an envelope, draft a summary cover letter explaining that this is the submission of a copyrighted idea and that by opening the envelope, they are agreeing to the confidentiality and non-disclosure of the submission and further, agree to pay for it if they decide to use it.

While these ideas may not be “iron-clad,” they will go a long way toward establishing the necessary elements of an idea misappropriation claim.

[1] 17 U.S.C. § 102(b) . See e.g., Holmes v. Hurst, 174 U.S. 82 (1899); Kalem Co. v. Harper Bros., 222 U.S. 55 (1911) ; Dymow v. Bolton, 11 F.2d 690 (2d Cir. 1926) ; Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) ; Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612 (2d Cir. 1945) ; Gaye v. Gillis, 167 F. Supp. 416 (D.C. Mass. 1958 ). This was also the rule under common law copyright. Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56 (1930) ; Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947 (1953) ; Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956) ; Ware v. Columbia Broadcasting Sys., Inc., 61 Cal. Rptr. 590, 155 U.S.P.Q. 413 (Cal. App. 1967).[Back]

[2]Ernest Olson, V. National Broadcasting Company, Inc., 855 F.2d 1446 (9th Cir. 1988).[Back]

[3]Gallup, Inc. V. Talentpoint, Inc., 2001 U.S. Dist. LEXIS 18560; 61 U.S.P.Q.2D (BNA) 1394 (M.D. PA. 2001).[Back]

[4]George L. Kregos v. Associated Press and Sports Features Syndicate, Inc., 937 F.2d 700; 1991 U.S. App. Lexis 12113; 19 USPQ2d (BNA) 1161; Copy. L. Rep. (Cch) P26,744 (Ct. App. 2nd Cir. 1991).[Back]

[5]Presby Construction, Inc., v. Normand Clavet, et al, 2001 DNH 210; 2001 U.S. Dist. LEXIS 20951; 61 U.S.P.Q.2D (BNA) 1184 (Dist. NH 2001).[Back]

[6]Matthew Bender & Company, Inc., et al v. West Publishing Co. et al, 158 F.3d 674; 1998 U.S. App. LEXIS 30790; 48 U.S.P.Q.2D (BNA) 1560 (App. Ct. 2nd Cir 1998). [Back]

[7]Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956).[Back]

[8]Stanley v. Columbia Broadcasting Sys., 35 Cal.2d 653, 221 P.2d 73 (1950).[Back]

[9]Stone v. Goodson, 8 N.Y.2d 8,200 N.Y.S.2d 627 (1960).[Back]

[10]This exclusion also applies to scientific ideas.[Back]

[11]Affiliated Enterprises, Inc. v. Gruber, 86 F.2d 958 (1st Cir. 1936).[Back]

[12]Lewis v. Kroger, 109 F. Supp. 484 (S.D. W.Va. 1952).[Back]

[13]Burnell v. Chown, 69 Fed. 993 (N.D. Ohio 1895).[Back]

[14]See Kienzle v. Capital Cities/American Broadcasting Co., Inc. , 774 F. Supp. 432, 436 n.8, 438 n.13 (E.D. Mich. 1991) (Treatise cited). McGhan v. Ebersol, 608 F. Supp. 277, 284 (S.D.N.Y. 1985) (New York law). [Back]

[15] Noble v. Columbia Broadcasting Sys., 270 F.2d 938 (D.C. Cir. 1959) ; Santilli v. Philip Morris & Co., 283 F.2d 6 (2d Cir. 1960) ; Stevens v. Continental Can Co., Inc., 308 F.2d 100 (6th Cir. 1962) ; Pittman v. American Greeting Corp., 619 F. Supp. 939 (W. D. Ky. 1985) ; Downey v. General Foods Corp., 31 N.Y.2d 56, 286 N.E.2d 257 (1972) (no promise to pay for an idea will be implied or enforced if the idea is not both novel and original).[Back]

[16]Webster's New Int'l Dictionary (2d ed.) 1670.[Back]

[17]Williamson v. N.Y. Central R.R., 16 N.Y.S.2d 217, 258 App. Div. 226 (1939) ; Bailey v. Haberle-Congress Brewing Co., 193 Misc. 723, 85 N.Y.S.2d 51 (1948 ) ; Masline v. New York, New Haven and Hartford R.R., 95 Conn. 702, 112 Atl. 639 (1921) ; contra Brunner v. Stix, 352 Mo. 1225, 181 S.W.2d 643 (1944).

[18] Giangrasso v. CBS, Inc., 534 F. Supp. 472 (E.D.N.Y. 1982) ; Curtis v. United States, 168 F. Supp. 213 (Ct. Cl. 1958), cert. denied, 361 U.S. 843 (1959) ; see Borden & Barton Enters. v. Warner Bros., 99 Cal. App. 2d 760, 222 P.2d 463 (1950) ; Donahue v. Ziv Television Programs, Inc., 54 Cal. Rptr. 130 (Cal. App. 1966) ; Official Airlines Schedule Info. Serv., Inc. v. Eastern Air Lines, Inc., 333 F.2d 672, 674 (5th Cir. 1964) (concurring opinion); Sterner v. Hearst Corp., 144 U.S.P.Q. 237 (N.Y. Sup. Ct. 1964) .[Back]

[19]Desny v. Wilder, 46 Cal. 2d 715, 739, 299 P.2d 257, 270 (1956) ; Aliotti v. R. Dakin & Co., 831 F.2d 898, 903 (9th Cir. 1987).[Back]

[20] Cole v. Lord, 262 A.D. 116, 28 N.Y.S.2d 404 (1st Dep't 1941) ; Kurlan v. Columbia Broadcasting Sys., 40 Cal. 2d 799, 256 P.2d 962 (1953) ; Vantage Point, Inc. v. Parker Bros., Inc., 529 F. Supp. 1204 (E.D.N.Y. 1981) (Treatise cited), aff'd mem., 697 F.2d 301 (2d Cir. 1982); Bevan v. Columbia Broadcasting Sys., Inc., 329 F. Supp. 601 (S.D.N.Y. 1971) (Treatise cited); cf. McGhan v. Ebersol, 608 F. Supp. 277, 285 (S.D.N.Y. 1985) (New York law); Bailey v. Haberle Congress Brewing Co., 193 Misc. 723, 85 N.Y.S.2d 51 (Mun. Ct. 1948).[Back]

[21] See, e.g., Whitfield v. Lear, 751 F.2d 90 (2d Cir.) , where in advance of submission, plaintiff sent a mailgram to defendants advising that a submission was being sent.[Back]

Technorati Tags: Copyright Infringement,Ideas,Copyright Law,Music Law,Entertainment Law,Intellectual Property,Tradmark,Copyright,Trademark Law,Music Row Attorney,Music Row Lawyer,Entertainment Attorney

Why "Freeconomics" - and the Music Industry's Five Point Plan - won't work in the long term

2008-05-20T11:37:00.001-05:00

There is a great deal of talk these days about the concept of "freeconomics," spurned by the fact that most teenagers and college students are still ripping music and sharing it online. Most recently, the major record labels commissioned a study from two think tanks, The Leading Question and Music Ally, which resulted in a five recommendations for the music industry, including "bundling" of product. Another of the points was "Free doesn't mean no money." How original. And oh, by the way, IT DOES ACTUALLY MEAN THAT! You can read the full article about the study here.

Let me start out by observing an old adage, which still holds true in life, that you tend to "get what you pay for." I've always believed in that adage. There is generally a direct correlation in the amount of sawbucks you shell out to the quality of the product you receive. When I cook, for example, I use the freshest ingredients. I spare little expense. Sure, I try to find bargains, but if you skimp on the quality of your ingredients, you always skimp on taste. I have always resisted the impulse to buy meat on clearance!

What about "free" goods? Just think about how many junk e-mails you receive every day offering you a "free" iPhone, or a "free" laptop, or a free whatever. . . the list goes on and on. Don't you automatically just delete those? Of course you do -- because everyone knows these types of things are given out for free: first, someone is actually paying for those goods; secondly, you have to subscribe to a certain number of paying offers in order to actually receive the "free" iPhone or laptop. There is another adage: nothing is life is free. Fact of the matter is, if I wanted an iPhone, I'd go out and buy it.

Now, let's turn our attention to "freeconomics" and honestly call it what it really is: freakenomics! Again, nothing in life is free.

Nonetheless, we are lead by these researchers to examine Google and its model of giving out free software as an example of how the music industry can give away music and still achieve a profit. This analogy is wrong on so many levels, but I'll just point out one basic incongruity: the software developers that are writing software for Google work for the conglomerate under a work for hire agreement - Google does not have to compensate multiple rights owners. It owns the entire product.

This is not so with a musical composition/sound recording combination. That is bundle that is not so readily united. The record label generally owns the sound recording of a musical composition, but does not always own the underlying music compositions. There may be multiple owners of the underlying compositions which have to be compensated - multiple songwriters and multiple publishers. The producer also must be compensated. The musicians who play on the record have to be compensated, not to mention their union fees and retirement fund. The engineers who work on the project are compensated. The artist has to be compensated for their performance. The people who master the product must be compensated.

What the simplistic - dare I say naive - five point plan laid out by the record "think tank" overlooks is that in order to accomplish the equivalent of something like a Google in the music industry, one has to completely rewrite the industry. While this is not a new idea, it is also not an idea that can be accomplished in today's copyright structure nor within the current orientation of the music industry. Hundreds of years of practice have to be completed abolished for the Google model to work in the music industry.

Let's look an entity that has actually tried to make such a paradigm shift: MySpace. It is most definitely the place where independent artists go to get their music heard. The music is generally free. How many artists have you listened to on MySpace in the last month? I'm in the industry, and I have listened to maybe two, but only because I received a specific request to do so.

How many artists on MySpace actually make a lucrative living doing what they are doing there? Again, the music is free isn't it? Freecomonics will get us something akin to the quality of music that you find on MySpace in general. There is no realistic way to sift the wheat from the chaff.

The instant you stop rewarding the songwriters and artists that create the music -- removing a real incentive for creating their art full time -- the sooner you'll find a void in the really high quality music. Yes, there are some who say that artists will produce art regardless of whether they receive compensation, because that is what they do. However, this is not historically accurate in music or any of the arts. If you find an artist who is thriving, you will generally find a source of money, whether it be selling the artwork to a famous benefactor or having financial muscle behind him or her.

In music, the major labels have historically been the finders and funders of the talent. They spend a lot of money discovering, developing and marketing the talent. For the most part, it is the major label product that gets traded on the P2P networks. That is one factor that is often overlooked. What the general public wants to hear, and shares on P2P, is generally the music that is marketed heavily - generally by the major labels. That will not change until someone constructs a better way to get music heard by the public in general.

So, I believe if you remove the economic component of music, you will ultimately eliminate the talent altogether. Otherwise, the talented will have to get day jobs to support their art and the art will most certainly diminish and/or suffer.

Let's turn to some of the other suggestions made by The Leading Question and Music Ally:

(1) Music needs to be bundled with other products and entertainment packages. They conclude that "music needs to move away from per unit sales and become more of a service than a product." Can we say YAWN class? The record labels cannot break themselves of the idea that people want a package deal. We don't. We want ala carte! The sooner that the industry comes to this realization, the better off they will be. Isn't this what the labels have been feeding us for years? This is but the "record album" in another iteration. Buy this collection of 10 songs, 2 of which are what you actually want and 8 of which bite! Come on guys, hasn't the digital revolution taught you anything? Wake up and smell the single downloads. That IS what the consumer wants. Build a model that incorporates the single download. Don't build a model that ignores it.

(2) Labels needs to experiment with new release schedules and formats. Seriously? Again, the think tanks suggest that "single . . . releases have run [their] course." Ditto what I said above. Check out the success of iTunes, emusic, Amazon, etc. etc. Check out what happens on P2P networks when a new digital single is released. The single is NOT a thing of the past. Now, granted, I agree that digital only releases and new pricing models are going to be part of the new model -- couldn't any fourth graders could tell you that? But again, people want their music ala carte. They want good music. They don't want the bundles, the fillers, the parasitical crap that the industry wants to latch onto what they really want.

(3) Change the charts. Yes, people actually get paid to say this stuff! The conclusion is that the charts don't make sense anymore because fewer people are buying music. In fairness, I understand this one to some degree. But, has anyone noticed that Billboard already tracks digital downloads? Has anyone noticed any of the other p2p tracking devices, such as Big Champagne, just to name one. Sure they have and so have the major labels. In fact, that is in part where many of the researchers get their data. No doubt, the tracking of general overall consumption should be an important factor in consideration. While we are at it, why not pay more attention to the portion of the market called baby boomers. The older generation that buys music, but rarely gets consulted when discussing these issues.

(4) Trust the DJ. Next to the CD format, the other big thing the record industry has a hard time letting go of is the radio format. The record industry likes to control the advise given about music so that they control what the listener "wants" to hear. The think tanks concludes that "the instant and massive availability of music on demand means you need a trusted guide like John Peel more than ever." I disagree with this conclusion because I believe that this "advisor model" is antiquated. These days, most people rely more on social networking - either virtual or real -- and trending algorythms to determine what music they enjoy. I don't know of any teenager that listens to terrestrial radio any more. For them, a DJ is someone at a wedding reception and they are not likely to take advise from that person.

Yet, the file sharing continues and, more importantly, so does the need for change. Now that I have ranted a little about the suggestions made by these industry think tanks, let me say that I do, in fact, appreciate their efforts to come up with solutions to the declining music industry. I wholly agree with what the managing director of Music Ally, Paul Brindley says in the article, that the

"business models need to change radically if the music business is to stand any chance of halting the current decline in sales." Without a doubt, something truly has to be done or the industry will fail.

As I heard one venture capitalist put it, for him to consider an investment in the music industry, it must be a paradigm shifting, industry changing business model. These suggestions by The Leading Question and Music Ally just don't quite rise to that level, in my humble opinion. In my opinion, the ultimate solution will be a fair priced - but not free - digital download model. The most important component that is missing thus far, and that is critical, is a means of getting the music heard by the general population. We have many services which may be close, but as of yet, we are not quite there.

Technorati Tags: Music Industry,Digital Downloads,Music Publishing,Songwriting,Music Law,Internet Law,Record Labels,RIAA Litigation

Taking a Bite out of Apple: iPhone Hackers File Lawsuits

2008-04-30T16:33:00.001-05:00

Apple’s release of the iPhone in June 2007 was an unqualified business success - 1.4 million iPhones were sold in just a few months. However, as has become the norm when a business is successful, several legal problems have arisen for Apple and its telecommunications partner, AT&T. Many of these problems began shortly after the iPhone’s release, when a New Jersey teenager announced that he had circumvented the technological 'lock' that renders the iPhone inoperable with wireless telephone carriers other than AT&T. The hacking of the iPhone received almost as much press attention as its release and Apple estimates that as many as 250,000 iPhones have been unlocked .

In response, Apple issued a press release which warned consumers that modifying iPhones in order to switch wireless carriers could damage the product and void Apple’s warranty. Apple also announced that future Apple software updates would likely render modified iPhones permanently inoperable. Shortly afterwards, an Apple software update did just that. Predictably, two class action lawsuits alleging unfair competition and antitrust claims were filed against Apple in October 2007: one, which also names AT&T as a defendant, in the US District Court for the Northern District of California,(1) and one in the California Superior Court in the County of Santa Clara.(2)

Among other things, the complaints allege that consumers may unlock iPhones legally on the basis of a November 2006 regulation promulgated by the librarian of Congress regarding exceptions to the Digital Millennium Copyright Act’s prohibition against circumventing technological protection measures. Furthermore, the complaints allege that the software update issued by Apple, rendering thousands of iPhones inoperable, was an illegal effort to prevent consumers from exercising this exception.

Whether the unlocking of iPhones fits within the librarian of Congress’s exception to the act depends on the answers to a number of difficult questions. It is far from clear that unlocking an iPhone is legal. The librarian crafted narrow language which limits the exception to circumstances in which “circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network”.

At least one court(3) has ruled that unlocking a mobile phone for the purpose of reselling it to third parties violates the act and does not fall within the exception; fearing that many of the iPhone hackers purchased multiple iPhones for resale, Apple recently limited the number of iPhones that an individual may purchase and stopped accepting cash for iPhones. Determining whether the librarian’s exception applies to unlocking iPhones and, if so, how many of the class members involved in the cases fall within the scope of the exception are likely to be central issues. Copyright owners should follow these cases carefully, especially because the anti-circumvention provisions of the act are infrequently interpreted and are often critical to many business models.

Endnotes

(1) Holman v Apple, Inc.

(2) Smith v Apple, Inc.

(3) In TracFone Wireless, Inc v Dixon, 475 F Supp 2d 1236 (MD Fla 2007).

You Say You Want A REVOLUTION?

2008-04-02T10:47:00.001-05:00

You say you want a revolution

Well, you know

We all want to change the world . . .

You say you've got a real solution

Well, you know

We'd all love to see the plan

You ask me for a contribution

Well, you know

We are doing what we can

But if you want money

for people with minds that hate

All I can tell is, brother, you'll have to wait

Don't you know it's gonna be alright?

-John Lennon

Perhaps John Lennon said it best: if you push people hard enough and long enough, they will revolt. The question is, has the RIAA gone too far for too long? A recent motion filed in their case against students at the University of Maine may very well answer that question.

The RIAA named numerous "John Doe" students in their complaint in Arista Records v. Does 1-27, as is their practice in all of their lawsuits. The RIAA's purpose of naming the John Doe defendants is so that they may obtain an ex parte (i.e., without the other party being notified) order from the Judge requiring the targeted university to provide the various students' name, address, and, particularly, their IP address.

Student lawyers at the University school of law Cumberland Legal Clinic have filed a motion for Rule 11 sanctions against the RIAA claiming that this practice improperly seeks to circumvent the student's rights under the Family Educational Rights and Privacy Act, §1232g(b)(2)(B) ("FERPA"), gain publicity for its cause, and coerce students into settling for "nominal" amounts in the $3-5000 range.

Rule 11 of the Federal Rules of Civil Procedure allows sanctions against an attorney who signs a pleading without properly investigating the facts and the law and does so with an improper purpose.

The motion also questions whether the joinder of plaintiffs and defendants under the RIAA-type lawsuits is proper because the actions do not, in fact, arise out of the same transaction. Rule 20 of the Federal Rules of Procedure provides that multiple plaintiffs can join in one action if “they assert any right to relief jointly, severally, or in the alternative with respect or arising out of the same transaction, occurrence, or series of transactions or occurrences…and any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a). Similarly, multiple defendants can be joined in one action if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences . . . and any question of law or fact common to all defendants will arise in the action.” Id. The student motion alleges that the RIAA does not, in fact, believe that all of these copyright infringements arise out of the same facts, but join together against multiple defendants for the sole purpose of trimming litigation and discovery costs.

In this case, the student lawyers are seeking more than just monetary damages under this Rule 11 motion: they also seek dismissal of the complaint and a permanent injunction preventing the RIAA from filing "fishing expedition" type complaints against "unconnected" defendants in the future. These types of injunctions may be applied in jurisdictions other than the one in which it was issued, so in theory such an order may be applied to thwart lawsuits in other Federal courts across the country.

This in one ruling that should be very interesting.

Technorati Tags: RIAA Litigation,Digital Downloads,MP3,Entertainment Lawyer,Music Lawyer,Music Law,Copyright Infringement

Music Row Magazine sold

2008-03-28T13:05:00.001-05:00

Music Row magazine has been "Nashville's Music Industry Publication" for 26 years. Yesterday, Music Row announced that it was being acquired by SouthComm Communications, Inc.

SouthComm is a Nashville-based media company founded in 2007 by Chris Ferrell and Nashville investment firm Solidus Co., led by Townes Duncan. Duncan is chairman of SouthComm and Ferrell is CEO. Their first acquisition was SouthComm Publishing Company, Inc. of Alphraetta, Georgia.

Ferrell was formerly a council person in Nashville and publishers of The Scene, an alternative weekly publication owned by New Times Media of New York.

SouthComm is a custom publishing company focusing on local and niche news, information markets, membership directories and city publications. Music Row joins SouthComm's current stable of publications, which includes the print and digital publications Nashville Post and Business Tennessee.

"I'm a believer in niche publications. My belief about the future of print is that it needs to be very targeted."

Ferrell said in an article for Nashville Business Journal in January of this year.

"The SouthComm collaboration is a great fit," says David Ross, current publishers of Music Row magazine. He will remain CEO of the industry publication, but will given the position of Vice President for SouthComm and a seat on the Board of Directors.

"Joining a larger organization means Music Row [magazine] will benefit with added resources, efficiencies of scale and cross marketing opportunities. SouthComm also provides added conduits for music industry news to reach a wider network of Nashville business leaders and bolster the process of uniting Nashville's music and business communities."

Music Row's current staff will remain intact, including Ross' wife and partner Susana and Robert K. Oermann, who has appeared in MusicRow for most of its existence.

Technorati Tags: Music Row,music industry,Nashville

Fair is not always "Fair Use"

2008-03-13T11:08:00.001-05:00

The concept of “fair use” is a very misunderstood concept. The first common misunderstanding that people espouse is that the concept of “fair use” is a right or privilege granted by copyright law. It is not. Secondly, many people mistakenly believe that so long as they do not make any money from an infringing use of copyrighted material, then the use is a fair use. This is also an incorrect assumption.

Fair use is not a right or a privilege to be exercised at one’s whim. Rather, the doctrine is an “equitable rule of reason” that may be used as an affirmative d

efense in a copyright infringement action. The purpose of the rule is to balance the equities between the desire to protect and therefore encourage the creation of new ideas and the desire to encourage the free exchange of speech in the marketplace of ideas. The tension was described by Justice Souter as “simultaneously protect[ing] copyrighted material and allow[ing] others to build upon it.” Nonetheless, the thing to remember is that application of the fair use defense is declared by judicial fiat in the context of a copyright infringement action. It is applied on a case-by-case analysis of the factual situation. Thus, fair use is not a presumptive right or privilege that may be exercised by the infringing party.

There are four factors weighed by the Supreme Court in making a determination of whether a derivative work constitutes a “fair use.” These factors are (1) the nature of the work itself; (2) whether or not the work is commercial in nature; (3) the amount of the copyright work that is used; and (4) the effect of the use on the potential market or value of the copyright at issue. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), codified at §107 of the 1976 Copyright Act.

The nature of the work refers to the “nature” of the unauthorized derivative work, not the original copyright work. In order for such an unauthorized use of copyrighted material to be entitled to the“fair use” defense, the new creation must transform the original copyrighted material. A “transformative work” is defined by the U.S. Supreme Court as one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” See, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994). While all factors must be considered, this is perhaps one of the more critical factors in the analysis. Merely modulating the pitch of a song or inverting the sequence of a chord progression would probably not be considered transformative. A very good example of a derivative work that is transformative in nature is Alice Randall’s The Wind Done Gone, the same story as Margaret Mitchell’s Gone with the Wind, but told from the perspective of a mulatto slave who is the half-sister of Scarlet O’Hara, the main character in the original work. See Suntrust v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir 2001) per curiam, opinion at 268 F.3d 1257. In that case, the Eleventh Circuit extended the protection of a musical parody in Acuff Rose to the novel.

With regard to the second factor as to whether a use is commercial in nature, it should be noted that this does not necessarily mean that the new creation has to generate profits. If the new work create a significant fan, donor and/or advertiser base, those factors tend to lead to a conclusion that it is commercial in nature. A person simply does not have the “right” to use copyrighted works in any manner as long as no profit is generated from the use. It is also evident that this factor does not mean that simply because a derivative use does in fact generate profits, that it is by default not a fair use. In Acuff Rose, 2 Live Crew’s parody version of Roy Orbison’s Oh Pretty Woman had sold over 250,000 copies, yet was still considered a “fair use.” The thing to be remembered is that this is but one of the factors.

The third factor is fairly easy to evaluate: the more material “borrowed” from the copyrighted source, the less likely the infringer is to have a “fair use” defense. Again, another misconception is that there is a bright line test for fair use: that a few measures of a song, a couple of lines from a poem, a few hundred words of a paragraph, or a few paragraphs from a book, are considered fair use. This misconception has no basis in either the Copyright Act or the case law interpreting it. It is merely folklore. The factor, as used by the courts, is more of a sliding scale based, again, on the quantity of the material used from the copyrighted work as compared to the total material.

Finally, the last factor weighs the impact on the infringing use on the potential market and value of the copyright. This was an integral part of the Supreme Court’s ruling in Acuff Rose that 2 Live Crew’s parody of Roy Orbison’s Oh Pretty Woman did not impact the potential market for the original. The more a derivative work negatively impacts the potential market for and value of the copyright, the less likely it will a "fair use."

In summary, as you may have noticed, the fair use doctrine is by no means a bright line test. Each “fair use” defense is, by its very nature, evaluated on a case by case analysis in the context of a copyright infringement action. Fair use is not something to be relied on as a presumptive right.

Technorati Tags: Fair Use,Copyright Infringement,Parody,Music Lawyer,Entertainment Lawyer,Music Law,Entertainment Law,Campell v. Acuff Rose

"More than a Feeling" - Momma, look what they've done to my song!

2008-03-05T11:52:00.001-06:00

I received a call from one of my readers to address the topic of whether a songwriter has the ability to restrict the use of his or her composition in the instance it is being used in advancing a cause opposite to that espoused by the songwriter. This was spawned, of course, by the recent allegations of Tom Scholz, lead member of the group Boston, that his 1970's mega-smash "More than a Feeling" was being used by Mike Huckabee, whose views were opposite those held by Scholz. It is an interesting inquiry, and one that has simple solutions, mostly based in contract law.

There are two contract concepts that are usually incorporated into standard music publishing agreements which impact this issue: one is the concept of droit or moral rights and two is the restrictions on exploitation. I'll address them in reverse order.

Grant of Rights

Typically, when a songwriter assigns his copyright in a song to a music publisher, there is grant language contained in the agreement expressly establishing the rights he or she is granting to the music publisher. In that contract language, there is typically a clause that reads something like this:

The Publisher shall have the right to administer, use and exploit all interests in the Compositions . . . provided, however, that the approval of Writer shall be required for the use of any Composition:

             (i)    in any motion picture which Publisher has actual knowledge of an "X" or equivalent rating;

             (ii)    in any advertisement or other promotion for tobacco, firearms or personal hygiene products; or

             (iii)    in connection with religious or political purposes.

As you can plainly see, in this instance at least, the music publisher would be contractually required to obtain the approval of the writer prior to authorizing the use of the composition in a political rally, among other things.

If this type of language is not included in the songwriter agreement, or if the grant language included in the songwriter's agreement is, in general, more broadly worded, then the rights of the songwriter to restrict the use of the song would be greatly impaired.

Droit or Moral Rights

The other legal concept which comes in to play, both from an historic perspective and contractually, is the concept of droit or "moral" rights, although it is important to realize up front that this concept is most often applied, in the U.S. at least, to works of visual art, not musical compositions.

First, in connection to the copyright concept, don't infuse the the word "moral" with the ethical connotations generally associated with in in the United States. The use in this concept is much more in the sense of an embodiment of a type of something, i.e., the Monet painting is the moral equivalent of impressionist art. As used in this sense, it refers to the ability of the creator of a copyright to control the "embodiment" of his work, or its "integrity." The French-derived word "Droit" is, perhaps, more to the point when discussing copyright: it means "a legal right."

So, in the United States at least, the phrase "droit" or "moral rights" generally refers to the right of the copyright creator to prevent third parties from taking credit for, revising, altering, or distorting his or her creation, regardless of who owns the work, i.e., regardless of whether the copyright has been assigned or transferred.

In contrast, the concept has generally received much broader application in European states. France, for example, recognizes four moral rights:

the right of disclosure;
the right to correct or withdraw works previously disclosed to the public;
the right of attribution; and
the right of integrity (the right to "respect" the work).

When the U.S. joined the Berne Convention, Congress attempted to bring its copyright laws into line with those of the other signatory companies by passing Visual Artists Rights Act of 1990 (VARA) codified generally at 17 U.S.C. §§106, 106A, and 113. As implied earlier, however, this statute applies solely to visual arts and not musical compositions. Nonetheless, the concept of droit or moral rights may be invoked when dealing with the misappropriation of a songwriter's musical composition.

In addition to copyright law, there a several other legal concepts which may be implicated in this situation. For example, if a person is somehow giving false attribution to a creative work, e.g., attempting to pass off an creator's work as his or her own, that person may be liable under the concept of "unfair competition," which is barred by the Lanham Act (15 U.S.C. §1051). Or, if the creation is widely recognized as a work of the creator, any distortion or alteration of the creation may constitute trademark "dilution" under trade dress laws and statutes. More generally, if authorship of a work is somehow falsely attributed, the creator may have a state action for defamation against the person responsible for the false attribution. If a person uses the identity of an songwriter, or the compositions, for his or her own benefit without permission, a violation the songwriter's right of publicity may have occurred. Thus, there may be several remedies available in this type of situation.

In the US, however, it is accepted practice that if a person can waive a right, such a waiver will be in a contract. This is no exception. Again, there is language in most songwriting agreements which "waives all droit or moral rights" in the copyright. Such a waiver would likely nullify any of these general legal remedies available to the songwriter.

As always, I highly recommend that any songwriter contemplating a deal with a music publisher contact a reputable entertainment attorney.

Technorati Tags: More than a Feeling,Tom Schulz,Boston,70's Rock,Copyright Infringement,Music Publishing,Songwriters,Songwriting,Music Lawyer,Copyright law,Droit Rights,Moral Rights

Columnist David Pogue sings a humorous diddy about the RIAA

2008-02-28T16:52:00.001-06:00

New York Times technology columnist and Emmy-award winning CBS news correspondent David Pogue is featured in this YouTube video singing a fun diddy about the digital wave of media on the Internet, ending with a humorous take on the RIAA and its wave of litigation against college students nationwide. Enjoy

Technorati Tags: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property