Music Law Archives

Digital Downloads, Entertainment Industry News, Life on the Row, Music Law, Music Row News

Sony BMG announces McBee promotion

Earlier this week, Tom Baldrica, vice president of marketing at Sony BMG, announced that Heather McBee has been promoted to vice president of digital business. McBee, who has been with the label for 14 years, was formerly senior director of that department.

Baldrica said in a prepared statement:

"I’m so proud of this promotion. Heather has demonstrated constant growth and leadership skills in building her new media band-of-one into a full-fledged digital business department.

Originally from Clarksburg, West Virginia, McBee interned with BNA Records while attending the music program at Belmont University and was employed as a sales assistant upon her graduation in 1993. Through various mergers and acquisitions among the various labels, she ended up with Sony BMG. In 1997 she was picked to head up a newly formed research department which eventually evolved into the Digital Business and New Media department. She was appointed director of that department in 2003.

A part of Leadership Music’s 2007 Digital Summit, McBee is quoted as saying

I had the fortitude to stick it out when everybody was saying "no."

McBee credits label group chairman, Joe Galante for allowing her flexibility to prove the viability of her ideas about the future of the industry:

He asks that things be quantified. He gave me freedom to experiment…as long as I tempered my excitement and made it fit our goals and what we were doing.

Among other things, McBee was influential in moving Sony BMG into the cellular ringtone business.

Technorati Tags: Digital Downloads , Nashville Business , Music Row , Major Labels , Record Labels

UT Student’s Motion to Quash subpoena is denied in Virgin Records et al. v Does 1-3

On August 16, 2007, Doe No. 28 in the RIAA’s action captioned Virgin Records America, Inc. et al. v. Does 1-33 filed a motion to squash the subpoena issued to the University of Tennessee on the grounds that, one, it was unreasonable on its face and, two, it violates his rights under the Family Educational Rights and Privacy Act (“FERPA”). The memorandum in support of this motion can be read Pike & Fisher’s website, Internet Law & Regulation. This was a case of first impression, i.e., this is the first time a court has issued a ruling based on this type of facts.

The Subpoena is Unreasonable on its Face

Does No. 28’s primary argument in support of the proposition that the subpoena is unreasonable on its face was that plaintiffs could identify the name of the alleged infringer of the copyrighted sound recordings by being provided with the name and current campus address of Doe No. 28 and, therefore, does not need his permanent address, telephone numbers, e-mail address, and MAC Address, all of which would subject Doe No. 28 and his parents to unreasonable phone calls and mail.

Plaintiffs countered that this information was necessary in order to uniquely identify Doe No. 28 to the exclusion of other defendants.

The court based its decision in this regard on Rule 45 of the Federal Rules of Civil Procedure, which state that a subpoena may be modified if it poses an “undue burden” on the defendant. The Court held that providing plaintiffs with the requested information was not unduly burdensome since college students are transient by nature and move frequently during their tenure at college, thus making it difficult for plaintiffs to locate Doe No. 28 if only a name and campus address is provided.

The Subpoena violates the Family Educational Rights & Privacy Act

In examining this issue, the Court looked at both FERPA and at the University of Tennessee’s FERPA policy, which is posted online here. The Court found the following:

FERPA broadly defines “educational records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution.” United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002) (citing 20 U.S.C. § 1232g(a)(4)(A)). Directory information is defined in the statute as “the student’s name, address, telephone listing, date and place of birth…” 20 U.S.C. § 1232g(a)(5)(A). According to the University’s FERPA policy, directory information is “information not generally considered harmful or an invasion of privacy if disclosed. The University of Tennessee considers the following information to be ‘Directory Information’: Name, semester and permanent address, e-mail address, telephone listing, date and place of birth.” Office of the University Registrar, What You Should Know About FERPA. Furthermore, the University’s policy states that it is “not allowed to share information (other than ‘Directory Information’) without a student’s written consent” and that a student may limit release of directory information by submitting a request for directory exclusion to the University’s registrar.

After summarizing its analysis of FERPA and UT’s policy, the Court surmised that “most of the information [sought by the subpoena] falls within the category of Directory Information under FERPA,” with the exception of the MAC address, which identifies the device used by Doe No. 28 to connect to the Internet, and therefore is not protect by FERPA. With regard to the MAC address, the Court found that it was neither and “educational” record nor “personally identifiable information,” and therefore was not protected by the act.

One note of interest in the Court’s order was the revelation that Doe No. 28 had failed to argue that he had issued a “limiting request” as allowed in the University of Tennessee’s FERPA policy. The Court also made a particular note that the University’s policy did not mention MAC addresses. This seems to hint that the Court may have issued a slightly different opinion if these factors had been present, leading to the conclusion that students may want to write letters to their respective schools specifically requesting that no “directory information” be provided to third parties and asking that their schools not release MAC addresses as part of directory information and/or include such information in their FERPA policies.

The Court’s full opinion is available online at the Knoxville News Sentinel.

Technorati Tags: Music Law , RIAA , Digital Downloads , Internet Law , Entertainment Law , Copyright Infringement , Subpoena

What is a work made for hire?

Section 101 of the United States Copyright Act defines work for hire at as follows:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. sec 101

Whether a particular work is a work made for hire is determined by the relationshi Copyright_symbol p between the parties. According to the Supreme Court of the U.S., one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor.

Subsection 1 above only applies when the work is created by an employee, not independent contractors. A work created within the scope of a regular salaried or hourly employee’s job is a work made for hire. Whether an individual is an employee for the purposes of the work made for hire doctrine is determined using common law principles of “agency.” A person is an agent of an employer if he or she, for example, the employer controls how the work is done, if the work is done at the employer’s location, the employer provide equpment and supplies for the work, the employer controls the worker’s schedule and has the right to make assignments, and if the employer provides benefits to the employer. Some examples of works made for hire include a software program created by an employee programmer, newspaper articles written by a staff journalist for a newspaper, musical compositions created by a staff writer for a music publisher, or advertising copy created by a marketing department employee.

If a work is created by an independent contractor or freelancer (that is, someone who is not an employee), the work may or may not be created as a work made for hire, depending on two variables. In this case, the work is considered a specially ordered or commissioned work. In order for such a work to be made work for hire, both of the following conditions are required: i) the work must come within one of the nine categories of works listed in the definition above; and ii) there must be a written agreement in advance between the parties specifying that the work is a work made for hire. As an example, an independent reporter who writes a specially commissioned article for a newspaper or magazine will probably not be an producing a work made for hire, unless there is a written agreement between the two parties to the contrary.

The distinction between an employee and an independent contractor can be difficult to analyze in some situations. The closer an employment relationship comes to a regular salaried position, the more likely a work is to be considered made for hire.

When a work is considered a work made for hire, the author and owner of the work is the employer and it is identified as such on the copyright registration form. For more information on this subject, contact me or another competent entertainment attorney.

Tags: work+made+for+hire, work+for+hire, copyright, music+law

Tricks of the Trade

The “Star Power” theory of damage reduction in copyright infringement actions

Most consumers instantly recognize brand names such as Coca-Cola®, Nabisco®, Frito-Lay®, and Sony®. As a result of their prior purchasing experience with these brands, a consumer is much more likely to purchase a new brand of cookies bearing the Nabisco®® label than they are a bag of “Fred’s” cookies. This phenomenon is generally Magic known as brand name impact, or brand name recognition, and is the essence of trademark law.

When applied to the entertainment industry, an artist’s brand name impact is often referred to as “star power.” More specifically, star power refers to that portion of an artist’s earnings generated by a particular entertainment product which can be attributed to the entertainer’s success, fame, and the expectations of the artist’s fan base, as opposed to the specific content of the particular entertainment product, e.g., a musical composition. The theory is that a large percentage of consumers who purchase a popular artist’s entertainment product do so on the basis of the artist’s reputation, and on their past experience with that artist, rather than on a preference for any one particular song on that artist’s latest release.

The more astute reader may now be wondering how this principle applies in a copyright infringement action. The answer lies in the text of §504 of the Copyright Act, which deals with the calculation of actual damages in a copyright infringement action. The plaintiff, if he or she proves liability, is “required to present proof only of the infringer’s gross revenue.” Once the gross revenue is established, the burden shifts to the defendant infringer, who is required — and this is where it gets tricky — “to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. 504(b) (emphasis added).

Star power is one of the more important “elements of profit attributable to factors other than the copyrighted work” used by defendant-artists who have significant “brand name impact” to reduce the amount of damages to be awarded in a successful copyright infringement action against them. If the jury finds, for example, that the actual damages in a copyright infringement action involving an internationally known artist total $1 million, and further finds that fifty percent of the profits generated by the infringing song are attributable to the artist’s “star power,” then the copyright owner would only be entitled to $500,000.

One of the first applications of this sort of reduction for star power of an entertainer was in the case involving George Harrison’s subconscious infringement of the Chaffon’s 1963 classic hit He’s So Fine with his equally successful composition, My Sweet Lord. For more information, see, ABKCO Music, Inc. v. Harrisongs Music, Ltd. (1981, SD NY) 508 F Supp 798 (apparently 1909 Act), mod on other grounds, and remanded (CA2 NY) 722 F2d 988, 221 USPQ 490, later proceeding on other grounds (CA2 NY) 841 F2d 494. In that case, the court held that 75 percent of the success of the infringing song was attributable to the plagiarized music, while 25 percent was attributable to other factors including, among other things, the popularity and stature of Harrison in the pop music industry.

In order to calculate the percentage of sales attributable to star power, a defendant usually will hire a damages expert to apply elaborate formulas to the sales data of the infringing artist in order to derive an applicable percentage. The expert may, for example, perform nonlinear regression analysis to compare the sales of the more recent album containing the infringing musical composition to the sales from one of the artist’s earlier album, usually the first release, over an extended period of time (as many as 4-5 years). We’ll call this percentage the “Star Power Percentage.”

So, you might think to yourself, the calculation is simple. If a court determines that the gross profits from sales of the infringing album are 2 million dollars, and that the Star Power Percentage is 50%, then the copyright owner would be entitled to 1 million dollars, right? Wrong!. Just when you think you’ve got the trick figured out, the infringing artist has one more trick up the sleeve!

Instead of applying that Star Power Percentage to the gross profits from the sale of albums containing the infringing composition, the defendant will apportion out only those portions of profits that are directly attributable to the infringed musical composition and then apply the Star Power Percentage only to that apportionment. Again, you might think this calculation is straight forward. If there are 10 songs on the album, one manner of calculation would be to apply the Star Power Percentage to 1/10th of the earnings from the album. In the example given, 1/10th of 2 million is $200,000, and the plaintiff would be awarded 50% of that, or $100,000. Wrong again!

A typical damages expert will base the apportionment of earnings from an album on the performance royalties generated by each musical composition. The expert will apply the respective performance royalty total for each musical composition to the total earnings to derive the allocated percentage of profits attributable to each individual musical composition. If the infringing song happens to be a very popular song, that might be beneficial to the plaintiff. If, however, the infringing song is less popular, it probably means that the Star Power Percentage will be applied to less than 1/10th of the total earnings from an album containing 10 songs.

The good news is that the infringer bears the burden of proving these types of deductions. One factor that weighs heavily in favor of a lesser deduction is the degree of popularity of the infringing musical composition. If the infringing musical composition is extremely popular, a good argument could be made, through the use of plaintiff’s expert testimony, that the musical composition itself contributed a great deal to the success of the album.

Another important factor is the popularity of the musical composition that has been infringed. In the Harrison case, for example, He’s So Fine was an extremely successful musical composition in 1963. The inference is that even though George Harrison’s star power may have attributed some percentage to the sales of the infringing composition, the familiarity of the melody could arguably be said to have contributed as much or more to the sales and, therefore, the effects of star power are diminished.

When calculating damages, the defendant will most certainly make use of every means available to reduce the amount of damages to which the songwriter/plaintiff is entitled. The songwriter, therefore, should make use of a good copyright infringement attorney and a reputable musicologist to make certain that his or her rights are protected and to make certain that he or she gets the full extent of the damages to which he or she is entitled.

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Holy Copyright, Batman! The Legal Doctrine of Scenes a Faire

Magic Hat This article originally appear in the print edition of Law on the Row, Volume 2, Issue 1 on September 9, 2002.

Imagine two musical works written in a minor key using a standard jazz progression such as I-IV-II-V. Further imagine that Work B is alleged to be an infringement of Work A. The author of Work B hires an expert who testifies that the 16-note melodic line in Work B that is identical to the 16-note melodic line in Work A is not entitled to copyright protection because that melody is “dictated” by the jazz chord progression, and, therefore, there is no infringement. This analogy describes a new and novel use of the legal concept known by the French moniker, scenes á faire.

The phrase scenes á faire refers to certain distinct elements — characters, settings, or incidents, for example — in a copyrighted work that are absolutely necessary or indispensable in describing a particular “scene.” See, Atari Games v. Oman, 888 F.2d 878 (D.C. Cir 1989). For example, in creating a story about the music business in Nashville, one would expect references in the story to such elements as Music City, Music Row, songwriters, producers and the Bluebird Café. If a copyrighted novel contained those elements, those specific portions of the work relating to the scenes faire would not be entitled to copyright protection, and a second novel containing the very same elements would not be an infringement.

Thus, the concept of scenes á faire is applied in circumstances such as those described to limit the scope of copyright protection.

It is also important to note that the concept of scenes faire has traditionally been applied specifically to infringement actions involving novels, literary works and computer programming code. More recent attempts have met with success, however, in applying the doctrine to the comparison of lyrics alleged to be infringing. Even more recently, novel attempts have been made to apply the concept of scenes faire to the musical phrases and melodic lines of musical compositions

If a position such as the one described in our analogy could be argued successfully, then the amount of damages to which the author of Work A would be entitled is severely reduced, if not eliminated entirely. The copyright owner would end up with, at best, a musical work where certain sections of the melody and certain sections of the lyrics are entitled to protection — indeed, he have a copyright full of holes!

Of course, a simple mathematical calculation yields literally hundreds of thousands of permutations consisting of acceptable melodies which may be superimposed over the jazz chord progression common to the two works, yet this simple fact does not prevent the use of this argument in copyright infringement actions. Although the issue has arisen in the context of summary judgment, as of yet no court has issued a direct ruling on the application of scenes faire to melodic phrases or chord progressions.

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Music Industry, Music Law

Virgin v. Thomas: Sherman testimony not allowed; possible verdict today

In a blow to the Recording Industry Association of America, U.S. District Court judge Michael Davis ruled yesterday that the infamous president of the RIAA, Cary Sherman, could not testify in the trial of accused music-sharer Jammie Thomas because “nis testimony would not be relevant,” despite the arguments of Plaintiff’s attorney, Richard Gabriel, that Sherman’s testimony would allow the jury to understand why the RIAA is targeting people like Thomas for the purpose of deterring other would-be downloaders.

“Lawsuits like this are not about making money,” Gabriel told the judge. “It gets the word out … We’re serious about this even if the damages are small.” Sherman

Sherman confirmed to The Associated Press’ Josh Freed that his lobbying group will continue to go after persons downloading music illegally, despite the outcome of this week’s trial. “. . .[W]e’re in [this] for a long haul in terms of establishing that music has value, that music is property, and that property has to be respected,” Sherman said. See Cary Sherman on CNN.

After both sides had their day in court, the RIAA had called over 11 witnesses, while the only evidence Ms. Thomas offered was her own testimony.

The apparent strategy of Thomas’ defense teams was to produce enough doubt that Thomas was not the actual “warm body” behind the IP address. Her attorney, Brian Tober, raised the specter of “zombies, crackers and drones” in order to conjure up doubt in the minds of the jury. He suggested that someone outside of Thomas’ apartment window could have accessed her wireless router and be responsible for the incident. Tober, however, never asked Thomas on direct, nor was she cross-examined, as to whether she owned a wireless router.

The RIAA, on the other hand, put on substantial evidence that a Kazaa user named Tereastarr shared some 1,700 digital audio files on Feb. 21, 2005. The evidence proved that the defendant use the Tereastarr monikor on e-mail accounts, online logins, including match.com, and as her username to access her own computer. The evidence produced also showed that an internet protocol address associated with that Kazaa share file in question was assigned to Thomas by Charter Communications on the night RIAA investigators captured her shared folder. The cable modem used to share the files was also leased to Thomas, according to testimony from a Charter Communications security official. Finally, Iowa State University professor and computer forensics specialists Doug Jacobson opined that no wireless router was used on the night in question (that fact is difficult, if not impoosible to ascertain, since printers, routers, and other devices are all assigned the same IP Address to the “eyes” of the ISP.

In one of the more important developments of the day, Judge Davis correctly instructed jurors that the mere “act of making [a copyrighted song] available for electronic distribution… violates the copyright owner’s exclusive copyright.” This has been a topic of hot debate not only during the trial but in other RIAA cases as well. This ruling would arguably make it easier for the jury to find against Thomas if they believe that she was, indeed, the fact behind the IP.

The jury is expected to diliberate today. As in all trials, it will all come down to a matter of credibility — who does the jury believe and trust?

Entertainment Industry News, Music Law, Trademark Issues

What’s in a Name? Personal Names as Trade Names

By James H. Harris III*

More than just occasionally, entertainers adopt stage names. They do so because they believe the new name will add a luster and specific identity to their careers. Thus, Harold S. Jenkins became Conway Twitty.

A stage name, of course, is a type of mark that an entertainer uses to identify himself or herself as a business enterprise. In most states, including Tennessee, a mark, in general, includes any trademark or service mark entitled to registration under the applicable state trademark act, regardless of whether the mark is actually registered.

A trademark in Tennessee is “…any word, name, symbol, or device, or any combination thereof, adopted and used by a person to identify goods made or sold by the person and to distinguish them from goods made or sold by others.” A service mark is similar to a trademark, but it is “a mark used in the sale and advertising of services of one person to distinguish them from the services of others.”

Finally, there is a trade name. “Trade name” means a word, name, symbol, device, or any combination thereof, used by a person to identify the person’s business, vocation, or occupation and distinguish it from the business, vocation, or occupation of others.

As can be seen from these definitions, the terms are inclusive rather than exclusive. A service mark differs from a trademark in that it identifies services rather than goods. A service mark or trademark can also be a trade name.

Common law protects the rights of the owners and users of unregistered trade names. In Tennessee, the law specifically provides that “Nothing in this part shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.” A trade name is entitled to the same protection as a trademark or a service mark. For all practical purposes, the legal principles governing trademarks and trade names are virtually identical.

Personal Names In Trade Names

A trade name which consists of a personal name (first name, surname, or both) is entitled to legal protection when it attains secondary meaning. For example, a department store called The Harris Company acquires a secondary identification in the minds of the consuming public by the owner’s initial appropriation of the name and his continual use of the name in connection with the business enterprise of the store.

Because there may be thousands of persons with the same name, be it first name or surname, such names are not considered to be inherently distinctive trademarks. The work Harris used as a trademark or as part of a trade name would probably signify to the public only that someone of this name was connected with the business. However, when the requisite degree of notoriety attaches, as in the case of Ford for automobiles, the use of Harris becomes part of the trade name and the courts are likely to award some form of injunctive relief against a latecomer – one with the same name – who adopts the same or a confusingly similar name as a trademark or as part of a trade name.

When that happens, even though there be thousands of Harrises in the immediate area, only one has the right to use the name The Harris Company. All others who adopt the name or a confusingly similar one are infringers.

There is, of course, the romantic, ruggedly individualistic notion that an individual possesses some type of legal right to use his or her personal name as a trademark or service mark. A person frequently feels that “It’s my name and I can use it as I choose.” This influence, which is not present where other types of marks are involved, led the courts in early decisions to characterize the right to use one’s name in business as a “sacred” or “absolute” right. No such right has ever been thought to exist with respect to other kinds of marks, such as slogans or designs.

The United States Supreme Court in 1905, upholding the defendant’s right to use the name “Remington” as part of a corporate name, stated that “…[I]n the absence of contract, fraud or estoppel, any man may use his own name, in all legitimate ways, and as the whole or a part of a corporate name.”

This view quickly died. The Supreme Court began to uphold qualified injunctive relief in a number of surname cases, and it ultimately modified its earlier view. Referring specifically to the Remington case, the Court in 1914 shifted from favoring the interest of the alleged infringer to favoring the interest of the public:

But, whatever generality of expression there may have been in the earlier cases, it is now established that when the use of his own name upon his goods by a later competitor will and does lead the public to understand that those goods are the product of a concern already established and well known under that name, and when the profit of the confusion is known to and, if that be material, is intended by the later man, the law will require him to take reasonable precautions to prevent the mistake ….

LE. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 35 S. Ct. 91, 59 L. Ed. 142 (1914).

The public interest is now generally regarded as outweighing whatever interest an individual might have in using his own name. For this reason, courts more recently have viewed personal name trademarks as being no different from any other. The Fifth Circuit stated:

… [A] man has no absolute right to use his own name, even honestly, as the name of his merchandise or his business. As such it becomes a trade name or service mark subject to the rule of priority in order to prevent deception of the public.

John R. Thompson Co. v. Holloway, 366 F. 2d 108 (1966).

Tennessee’s Personal Name Cases

The granddaddy of all name cases in Tennessee is M.M. Newcomer Co. v. Newcomer’s New Store, 217 S.W. 822 (1917). Shortly after the close of World War I, Mr. Newcomer left one corporation and started another. As the style of the case suggests, both businesses used Mr. Newcomer’s personal name in their trade names. The Supreme Court stated its findings in the leisurely language of the time:

It further appears that, notwithstanding the great confusion growing out of the similarity of the names of the two corporations, and the efforts of the complainant to prevent this confusion, the defendant persisted in retaining the name “Newcomer” in connection with its business, which fact, we think, showed a clear intention on its part to benefit by the extensive previous advertisement for a long period of years of said name in connection with the business of complainant. If this were not the intention and purpose of the defendant, then all of the confusion which has resulted to both complainant and the defendant could have been easily avoided by the defendant adopting a corporate name without the association of the name

“Newcomer” therewith. Id. at 824

It then confirmed the two lower courts’’ holdings that

… the persistent use by the defendant of the name “Newcomer” in connection with its business was for the purpose of misleading the public and inducing complainant’s customers to patronize the defendant under the belief that they were patronizing the complainant.

Id. at 825

From the court’s analysis came the rule:

The extent to which an individual may use his own name is not unlimited. He cannot resort to any artifice or contrivance intended to delude the public as to the identity of his business or products….

A man must use his own name honestly and not as a means of pirating upon the good will and representation of a rival by passing off his goods or business as the goods or business of his rival who gave the name its reputation and value. No one will be permitted to use even his own name with the fraudulent intention of appropriating the good will of a business established and built up by another person of the same name.

Id.

The court emphasized that this principle was not a strained or overly-philosophical legal conceit. To the contrary,

The legal principles which are controlling here are simply the principles of old-fashioned honesty. One man may not reap where another has sown nor gather where another has strewn.

Id. at 825. [Citations Omitted].

All Tennessee cases on uses of trade names after Newcomer have reaffirmed these principles. Despite the consistency of the courts’ opinions, however, there is still in Tennessee a nod to a bygone day. In a case called Kay Jewelry of Chattanooga v. Morris et al., the Court of Appeals in the Eastern Division recognized in 1943 the “general right of a natural person to use his family name in conducting business ….” This general right is subject to all of the limitations described above, however, so the apparent respect for a person’s name may be less than it appears from the court’s simple statement of the perceived right.

The better view, in my opinion, is that, in this day of mass and immediate marketing, a personal name is really of no greater importance, nor is it entitled to any more sanctity, than any other mark. After all, none of us has earned our names; we simply received them at birth. If we wish to add value to our name, we should be required to associate the name with a particular activity or goods, and further, to use our name only in a way that shows respect for all other existing trade names.

James H. Harris III has been my partner for over ten years. He is a member of the professional association of Harris, Martin, Jones Shrum, Bradford & Wommack. A 1967 graduate of Vanderbilt Law School, he has practiced on Music Row since 1975. Mr. Harris is also a member and former trustee of the Copyright Society of the United States.