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property_of_your_name_university_t_shirt-300x263I get questions like this: “I know “FedEx” is a registered service mark of a great company that provides delivery services, alright, but I want to use that name on t-shirts – they aren’t a t-shirt company! – and sell them at the fundraiser. That’s okay, right?” Until recently, I might have said yes, depending….

Generally, a trademark serves to identify and distinguish the source and quality of a tangible product, while a service mark functions to identify and distinguish the source and quality of an intangible service. In some jurisdictions (including the Second Circuit), failure to register a service mark also in goods may preclude bringing a successful infringement claim for use of the mark on goods.

An October 2017 ruling from a three-judge panel of the Eleventh Circuit Court of Appeals (which covers Alabama, Florida and Georgia) settled the question, at least for now:  the holder of a federally-registered service mark need not register that mark for goods — or provide evidence of prior use of that mark on goods — in order to establish the unrestricted validity and scope of the service mark, or to protect against another’s allegedly infringing use of that mark on goods. SeeSavannah College of Art and Design, Inc. [“SCAD”] vs. Sportswear, Inc., d/b/a Prep Sportswear.

You got that?! Wow.

Here’s what happened: Continue reading

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offensive-line-300x200A recent case provides another opportunity to consider the legal issues surrounding defamation of a public figure. What constitutes defamation of character, where a football coach is accused of participating in bullying conduct? The Eleventh Circuit ruled against the football coach in Turner v. Wells, in an opinion published January 18, 2018.

James Turner coached the offensive line for the Miami Dolphins from 2012 until February 2014. Following allegations of bullying within the organization, the NFL hired the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, and individual Paul, Weiss attorney, Theodore V. Wells, Jr., to investigate. After receiving the 144-page Paul, Weiss report (the “Report”), the Dolphins fired Turner in February 2014.

The Report focused on the bullying of Jonathan Martin, an offensive lineman for the Dolphins. Martin abruptly left the team in October 2013, and checked himself into a hospital for psychological treatment. The Report concluded that bullying by several players contributed to Martin’s decision to leave the team, and the Report also included several references to Turner, opining that his unprofessional conduct played a role in Martin’s struggles.

After being fired, Turner filed suit against Paul, Weiss, and Wells, in U.S. District Court in Florida. The district court dismissed the complaint for failure to state a claim, and Turner appealed to the Eleventh Circuit (which has appellate jurisdiction over federal cases arising from Alabama, Georgia and Florida).

The Eleventh Circuit reviewed Turner’s claims of defamation by applying the elements of Florida law, which requires: (1) publication; (2) falsity; (3) the statement was made with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory. The Court concluded that Turner had failed to prove his claims of defamation. Continue reading

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The Confederate Memorial Carving on Stone Mountain, Georgia, is a colossal, high-relief sculpture – the largest in the world – of Jefferson Davis, Robert E. Lee and Stonewall Jackson, prancing about on horseback in grand Confederate finery, chiseled skillfully, one might even say artfully, into a face of solid granite, just outside of Atlanta, Georgia. Sculptors began the carving in 1912, and after decades of fits and starts, in 1963, the Stone Mountain Memorial Association chose Walker Kirkland Hancock, of Gloucester, Massachusetts, to complete the carving. Work resumed in 1964, during the thick of the Civil Rights Movement, and was completed in 1972. The monument is almost three acres in size and is visible for miles from several vantage points. It is now owned by the State of Georgia. Walter Hancock (of Gloucester, Massachusetts), the author of this controversial work, died in 1998.

Public pressure is mounting to address this elephant in the room: That there is, in our inescapable midst, a gargantuan and very public monument extolling treason, slavery and white supremacy. And this monument makes a lot of people, shall we say, uncomfortable.

Let’s assume, purely hypothetically, that Walter Hancock (of Gloucester, Massachusetts) retained authorship (as opposed to ownership) in the Confederate Memorial Carving. Could the (hypothetical) Hancock heirs – as the holders of his (hypothetical) copyright interest in the Confederate Memorial – assuming those heirs were so inclined, prevent the State’s efforts to alter or remove the sculpture? Continue reading

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man_in_the_hat_202625-edit-300x199Your artist career is getting traction – you’re doing more shows, you’re recording strong material, people want to work with you. And now you’ve been offered a management contract. Should you sign it? This question comes at us several times a month.

This may be the most momentous decision a budding artist makes. Get the right manager and sign the right management deal, and the future is bright; but make the wrong decision and you may have handcuffed your career and thrown away the key. So what should you be looking for?

First, regardless of any deal points, you must be comfortable working with and have confidence in your manager. What is the manager’s track record? Has s/he worked with other (successful) artists? What’s her/his communication style, screamer or persuader? You will be working closely with this person, perhaps for many years, so it’s important that the relationship be a good ‘fit.’ Spend some time in person or in conversation and get a feel for the manager’s style and how s/he plans to promote your career. Continue reading

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file000123053959Authors now have more options than ever to publish their works, ranging from self-publishing, through the hybrid “pay-to-play” publishers, to traditional publishing houses. So, what are the Pros and Cons of each?

Self-publishing. With online publishing, it’s now simple to publish your own book. Among the Pros of self-publishing:

  • The sale price, the cover art and the content are up to you.
  • You control the number of books printed, so there are fewer returns – you can print on demand.
  • You can alter your manuscript and reprint it, anytime you want. Did you find a typo when you were glancing through (for the 200th time)? Make the change and print it correctly for the next sale.
  • Your net financial return is greater on each sale. Of course, you will have printing and shipping costs and marketing/promo expenses, but after you pay these, the rest of the money is yours.
  • You get paid more frequently, maybe even monthly from sellers like Amazon.

Of course, the world of self-publishing is not all sweetness and light. Here are some of the Cons: Continue reading

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Everybody wants to be the Next Big Thing. Right? The Voice, American Idol, Rap Wars. The Network chose you, from millions of potential contestants, to appear in this season’s series. That’s flattering. Right? Your appearance on the show guarantees you a successful career, even if you don’t win. Right? It’s really tempting. But who truly benefits from your services on the show?11239528094_8bf12333c5_n

Two words: The Network. The Network will require you to sign a series of contracts that are essentially non-negotiable. So, you want to be on the show? Here it is, take it or leave it. For example, with a music-based series, such as the Voice, the Network will require your exclusive services for the duration of the series season in which you appear, plus a period of time following the conclusion of the series. You’ll be obligated not only to appear in the series (to the exclusion of most every other entertainment enterprise), but to also be available for promotional activities and sponsor-related commercials (if Tide sponsors the show, you can be required to do Tide commercials playing upon your fame as a participant on the show); you will waive any recourse you may have for pretty much anything that happens to you while on the show, including the right to sue for damage to your reputation on account of how the Network presents you to the world. In real life you’re not really an adulterous leprosy carrier? Too bad for you if that’s the way the Network decides to portray you.

Whether or not you win the competition, the Network will own all rights to all of your performances. If you perform original musical material, you will likely be required to assign a portion of your publishing rights, and the Network, of course, owns the rights to your master recordings produced on the show. Often, though, you will retain your rights to material you wrote before being selected for the show; material that you write for the show will typically belong to the Network, as a work for hire. Continue reading

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A few months back, we wrote of the challenges of traveling with a musical instrument. Since then, we received a request to publish a guest blog post, which, as you may imagine, had a commercial motivation: you see, the Flight Case Company, an English enterprise, makes bespoke musical equipment cases. allen_heath_xone_42_xone_62_and_xone_92_mixer_flight_case_1_2_1While I cannot personally vouch for the quality or suitability of these cases, they sure look top notch. And their blogger provided this really cool infographic of the Ultimate List of Tips for Travelling [sic – they’re English] Musicians.

Here’s their pitch: “Forget the stress of flying long hours with your whole crew and luggage, you also have to make sure that your priceless musical instrument makes the journey safe and sound. Well, here is some good news for you! The Flight Case Company has an entire line of bespoke equipment cases that has been built just for musicians. So whether it is a simple guitar case that you need or a Mackie DL 1608 Digital iPad Mixer flight case, they’ve got just what you’ve been looking for. Check it out!”

I considered demanding one of these bespoke travel cases for my D-28, as quid pro quo for this shout-out. Ah, bloody commerce.

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scales of justiceI’m not a judge. And I don’t play one on TV. And despite what I believed was a strong memorandum in support of summary judgment, District Judge Klausner denied the defendants’ motion and set the case for trial.

Recall that defendant’s motion set forth several bases to support the grant of summary judgment. Following is a summary of the Court’s analysis of the motion for summary judgment, and the reasoning applied in denying the motion. Remember that in ruling upon a motion for summary judgment, the Court will construe the facts in the light most favorable to the non-moving party, the plaintiff here.

The Court first reviewed the parties’ expert testimony as well as deposition testimony of other witnesses to address defendants’ three principal defenses: (1) abandonment/waiver, (2) laches, and (3) defective deposit copy.

Defendants argued that Randy Wolfe had clearly abandoned/waived any claims to infringement, as evidenced by a magazine interview he gave many years ago. But the court found evidence that Wolfe’s waiver may not have been heartfelt. For example, the journalist who conducted the interview testified that Wolfe never received or reviewed the interview notes before the article was published. Plaintiff also pointed to the tenor of the interview, which indicated that Wolfe felt cheated by Led Zeppelin and was merely trying to save face and made light of a bad situation.


Continue reading

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treble staffI’ve been on Blog Sabbatical for a few months, but I’m back and jazzed to talk about that Stairway to Heaven copyright infringement lawsuit.

You remember, Randy (“California”) Wolfe’s trustee sued Led Zeppelin, claiming Zep copped the intro section of Stairway from the song Taurus, performed by Spirit. Things have been moving right along.

When we last checked in on the case, the trial judge, Hon. Juan R. Sánchez, had permitted venue to remain in Pennsylvania. But in May 2015, Judge Sánchez entered a final order on defendants’ motion to transfer venue, and found that the individual defendants (Messrs. Plant, Page and Jones) lacked sufficient minimum contacts with Pennsylvania to justify retaining venue. Judge Sánchez transferred the case to the Central District of California.

The parties skirmished back and forth through the discovery phase. On February 25, 2016, the Led Zeppelin defendants fired off a motion for partial summary judgment. The memorandum in support of the motion sets forth some pretty persuasive arguments for granting summary judgment in their favor. WARNING: REVIEW OF DENSE LEGAL THEORIES FOLLOWS. BUT IT’S STILL INTERESTING. Continue reading

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I get calls from artists telling me that they’ve made a recording of one of their songs and have let others hear it. Then, one day they hear something on the radio by a popular artist that is remarkably similar to their song. What do you do?neon sign copy MGD©

For starters, always copyright your songs before you let anyone have a copy of it. The process is straightforward and may cost as little as $35. Here’s a rundown of how the registration process works. Until you’ve copyrighted your song, you do not have federal protection and cannot sue in federal court because of the infringement. What’s more, unless you register your copyright within three months after the infringement occurs (or when you first learn about the infringement), then you will have no right to sue for damages in federal court.

To prove infringement, you must show both (1) copyright ownership (see above regarding registration) and (2) proof of copying. Proof of copying is shown by either direct evidence – the infringer admits it – or indirectly by showing (a) the infringer had access to the work and (b) there is a “substantial similarity” between your work and the allegedly infringing work. Continue reading