0

Copyright Issues Arising from Musical Collaborations

Written By: Travis Swallow

In today’s music industry, more and more artists are working together to produce music.[1] The percentage of music released as a collaboration has doubled over the last ten years with most of that increase happening in the last three years.[2] While artists may be looking to work together more frequently, the legal disputes surrounding the copyrights of those collaborations seems to be increasing too.

Copyright protection applies to original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated.[3] This statutory definition of a copyright is very broad and essentially applies to any original work that has been documented in a tangible format. When working together as collaborators, artists create what is known as a joint work.[4] The authors of a joint work are co-owners of copyright in the work.[5]

But what happens when the collaborators finish their project? Can the artists take unused ideas from the collaboration and apply them to their own new songs and albums? Can they reference portions of the completed collaboration in their own work? Artists confront these questions regularly.

Take the recent dispute between Melissa Jefferson, otherwise known as Lizzo, and brothers Justin and Jeremiah Raisen. In early 2017, Lizzo, the Raisen brothers, and other co-collaborators had worked together to write and record a song called Healthy in anticipation of an upcoming album.[6] Jesse Saint John, who was also a collaborator on Healthy, suggested the group incorporate the line, “I just took a DNA test turns out I’m a hundred percent that bitch,”[7] after discovering the phrase in a tweet.[8] The phrase was added to the song but Healthy was never released.

In September 2017, after the completion of Healthy, Lizzo wrote and released her single, Truth Hurts. Lizzo chose to include the same phrase in Truth Hurts and credited both Mina Lioness (the author of the tweet) and Jesse Saint John as contributors. She did not, however, include the Raisen brothers in the credits. By the end of 2019, Truth Hurts had earned Lizzo the top spot on the Billboard Hot 100 list,[9] one Grammy for Best Pop Solo Performance and two other nominations,[10] and would go on to win the 2020 iHeartRadio Music Awards’ Song of the Year.[11]

Lizzo filed a claim for declaratory relief requesting the court to declare that the Raisen brothers along with most of the other collaborators on Healthy had no ownership rights in the song Truth Hurts.[12] The Raisen’s filed a counterclaim alleging that they were entitled to a portion of Lizzo’s profits as joint authors.[13] The court dismissed the Raisens’ counterclaim for failing to allege facts indicating that Healthy was the first step of the collaborators in the process of writing Truth Hurts.[14]

This case is only one example of the legal issues resulting from collaborations. With the numbers of collaborations on the rise, artists must also keep in mind the potential issues that may follow closely behind.

 

[1] Nuttiiya Seekhao, How Music Collaborations Evolved in the Digital Era: A Decade in Review, Beats & Bytes: Data Dives Blog (Jan. 10, 2020), https://blog.chartmetric.com/the-evolving-role-of-music-artist-collaborations/ [https://perma.cc/9XVG-XEBX].

[2] Id.

[3] 17 U.S.C. §102.

[4] 17 U.S.C. §101.

[5] 17 U.S.C. §201.

[6] Ashley Cullins, ‘Truth Hurts’ Suit Against Lizzo Dismissed by Judge, Billboard (Aug. 15, 2020), https://www.billboard.com/articles/news/9435044/truth-hurts-lawsuit-lizzo-dismissed [https://perma.cc/M7AY-ACQV].

[7] Id.

[8] Mina Lioness (@MinaLioness), Twitter (Feb. 24, 2017, 8:34 PM), https://twitter.com/MinaLioness/status/ 835347243020451840 [https://perma.cc/T67Y-5RNJ].

[9] Billboard Hot 100, Billboard (week ending Sept. 7, 2019), https://www.billboard.com/charts/hot-100/2019-09-07 [https://perma.cc/6B9F-TUKJ].

[10] 2020 GRAMMY Awards: Complete Winners & Nominations List, Grammy Awards (Nov. 20, 2019 5:39 AM), https://www.grammy.com/grammys/news/2020-grammy-awards-nominations-complete-winners-list [https://perma.cc/GVW3-DQ4Z].

[11] Taylor Fields, 2020 iHeartRadio Music Awards Winners: See the Full List, iHeartRadio (Sept. 8, 2020), https://news.iheart.com/featured/iheartradio-music-awards/content/2020-09-08-2020-iheartradio-music-awards-winners-see-the-full-list/ [https://perma.cc/WV7S-3D3M].

[12] Jefferson v. Raisen, No. CV 19-9107, slip op. at 1 (C.D.C.A. Aug. 14, 2020).

[13] Id. at 2.

[14] Id. at 6.

0

Tastes like chicken! Trademark infringement?

Written By: Tabina Haider

As technology progresses, the realm of trademark law is expanding. Many things are now trademarkable; from words and sounds to shapes and symbols. This has grown even to the sense of smell. Precedent has shown that it is possible to trademark a smell. [1] Think back to your kindergarten years and see if you are able to recall the smell of Play-Doh. To many, a distinctive smell pops into their minds that makes them think of Play-Doh specifically. These were the arguments that Hasbro, the company that manufactures Play-Doh, made to the United States Patent and Trademark Office (“USPTO”) when filing to trademark the scent. [2] Due to the distinctive nature of this Play-Doh scent in connection with its goods, Hasbro was able to successfully trademark this particular smell. [3] This trademark makes the Play-Doh scent Hasbro’s official property, prohibiting others from using it. [4]

Since smell is considered trademarkable, the question that naturally follows is whether flavor may also be protectable. Smell and taste are largely connected, and the properties of both senses are very similar, so it makes sense that if one is trademarkable, then the other is as well. The answer, according to caselaw, is that flavor mostly cannot serve as a trademark due to its functional nature. [5] Caselaw even states that scent should also not be trademarkable. [6] This is because flavor and scent are generally seen as a characteristic of a good rather than a trademark and can never be inherently distinctive. [7] Since flavor is the essential function of the product, it is almost impossible to trademark because something that acts to serves its purpose cannot be a trademark.

While it is difficult, it is not impossible to protect flavor as a trademark. A strong showing of acquired distinctiveness can be used to illustrate that a flavor or scent serves as a mark. [8] If an inventor is able to prove with substantial evidence, as Hasbro did with the smell of Play-Doh, that a particular taste makes consumers associate that flavor with the inventor’s brand, that flavor will be protected.

 

[1] Franco Galbo, Making Sense of the Nonsensical: A look at Scent Trademarks and Their Complexities, IPWatchdog (Dec. 21, 2017), https://www.ipwatchdog.com/2017/12/21/scent-trademarks-complexities/id=91071/ [https://perma.cc/8ZP8-JLNZ].

[2] Rachel Siegel, Remember How Play-Doh Smells? U.S. Trademark Officials Get It., Wash. Post (May 14, 2018), https://www.washingtonpost.com/news/business/wp/2018/05/24/remember-how-play-doh-smells-u-s-trademark-officials-get-it/ [https://perma.cc/977J-RSMK].

[3] Id.

[4] Id.

[5] In re Pohl-Baskamp GmbH & Co., 106 U.S.P.Q.2d 1042, 1048 (T.T.A.B. 2013).

[6] Id.

[7] Id.

[8] Id. at 1049.

0

Cultural Engagement as a Remedy to Cultural Appropriation in Intellectual Property Law

Written By: Frances Asha

As society, including younger generations, becomes increasingly more cognizant of instances of cultural appropriation and view the practice with disdain, companies and researchers can get their reputations into hot water by utilizing copyright, patent, and trademark law on intellectual property many would argue they have no right to own because that intellectual property is not from cultures that those companies and researchers are part of.

These instances of cultural appropriation are highly visible to the masses thanks to technological advances and the popularity of social media.[1] A Tweet can gain traction and easily get picked up by mainstream media. Suddenly, the whole world is watching. Even before the age of social media, companies still made some public relations blunders involving cultural appropriation.[2] For example, Walt Disney was criticized for trademarking the Swahili phrase “Hakuna Matata” in 1994.[3] Some attorneys defended this trademark, asserting that the trademark protects Disney’s creative use of the phrase for merchandising purposes.[4] In other words, the phrase can still be used freely as part of the language, but not on clothing. However, is it morally acceptable, even if it is legally acceptable, for a company to trademark a phrase it did not invent, especially a phrase from a culture of people whom the company is not a part of?

Companies and researchers can utilize communication, partnerships with indigenous peoples and giving credit where credit is due to reduce these sorts of conflicts, avoiding negative public opinion and maintaining respect for cultural words and traditions. Reaching out to the community the tradition, process, or word comes from can stop cultural misunderstandings about a company’s goals or intentions and  avoid accusations of cultural theft. For example, a mushroom company, Mushroom Mike, was criticized on Instagram for trying to patent huitlacoche, a specific type of mushroom that has been traditionally grown and eaten by indigenous Mexicans for centuries.[5] However, rather than patenting the huitlacoche itself, he sought only to patent a particular growing process for a specific strain of huitlacoche. This process is different from indigenous methods and took Mushroom Mike five years to develop.[6] Partnering with an indigenous farmer who is familiar with huitlacoche to develop a new growing method (or at the very least paying one as a consultant) would mean having someone from the community vouch for the company. This form of community involvement and profit sharing would be one way to show respect for who first discovered and cultivated this type of mushroom. Those interested in improving a traditional method or wanting to incorporate foreign elements into a story they want to sell would benefit from engaging with and learning from the cultures they source their materials from.

Another avenue of reducing incidents of cultural appropriation is through regulation (rather than leaving the onus solely on companies to develop partnerships with indigenous peoples). For example, the World Intellectual Property Organization runs a committee dedicated to “reaching agreement on a text(s) of an international legal instrument(s), which will ensure the effective protection of traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs).”[7] However, even with a regulatory solution, indigenous peoples and other minorities still need to be engaged with to form effective policies that protect traditional practices and expressions. This is why the World Intellectual Property Organization collects information from indigenous panels.[8]

Conflicts involving cultural appropriation can be murky and hard to resolve, but making it an industry standard to communicate and partner with relevant communities; acknowledging where source material comes from; enacting and enforcing policies that protect traditions from unfair use and ownership; and hiring diverse and culturally competent employees are all ways companies and researchers can avoid cultural appropriation. Combating cultural appropriation is not only necessary to maintain a positive public image and customer relations, but it is also a practice that any ethical company should stand behind.

 

[1] Judith Soto, Hands Off My Heritage: Cultural Appropriation and Trademarks, Trademark Now (Mar. 6, 2019), https://www.trademarknow.com/blog/hands-off-my-heritage-cultural-appropriation-and-trademarks [https://perma.cc/XS86-D4LJ].

[2] Id.

[3] Id.

[4] Id.

[5] Linda Black Elk (@linda.black.elk), Instagram (Sept. 1, 2020), https://www.instagram.com/p/CEmeBMclQzR/ [https://perma.cc/JK4R-ZVG2]; Mike Jozwik (@mushroommikellc), Instagram (Aug. 31, 2020), https://www.instagram.com/p/CEkF7OJnRcl/ [https://perma.cc/V9YF-NZ5F].

[6] Jordan Nutting, After 5 Years of Experimenting, Mushroom Mike Develops Corn Fungus for Mexican

Delicacies, Milwaukee J. Sentinel (Aug. 31, 2020, 6:58 AM, Updated Sept. 2, 2020, 7:44 AM), https://www.jsonline.com/story/life/food/2020/08/31/mexican-delicacy-mushroom-mike-finds-way-cultivate-corn-fungus/3339584001/ [https://perma.cc/9QBL-TBFW].

[7]Intergovernmental Committee (IGC), World Intell. Prop. Org. [WIPO] https://www.wipo.int/tk/en/igc/ [https://perma.cc/257H-J394].

[8] Id.

0

COVID-19 Vaccine Patent Race

Written By: Alice Chuang

Life in 2020 has been heavily been dictated by the novel COVID-19 virus. With alarming infection and fatality rates has been changing what is considered the “new normal.”[1] Vaccine research and development around the world has come tremendous pressure, resulting in the global patent race for a COVID-19 vaccine.

Generally, a patent is an exchange between the inventor and the national government in which the inventor discloses to the public exactly how to recreate the claimed invention.[2] The incentive is the right to choose who, when, where, and how the invention is manufactured, used, or sold.[3] The patent essentially creates a sort of monopoly over the invention to recoup the investment costs of research and development.[4] While the frenzy to develop a vaccine for the COVID-19 may initially appear to be an altruistic desire to save the world, there are actually significant issues that the patent system causes for this industry as it alters the vaccine-creating motive and causes negative repercussions.

The monopoly that patents grant allows companies to charge prices above what would be available in the free market.[5] This is the freedom to upcharge for drugs that the world desperately needs to reduce the staggering fatality rates.[6] Even though the United States government could bypass patent rights, it would have to provide a hefty compensation to the patent holder.[7]The current system raises the question of whether the intent behind medicine production is solely for monetary gain or for actual public benefit, and whether that intent impacts how our healthcare system operates. What this means for the COVID-19 vaccine race specifically is that a single company could have monopoly over a product that is needed by people around the world and necessary to prevent deaths in many communities.[8] This patent translates to an immense economic power for one with many companies receiving nothing in return for their investments and work.[9] This will also open the floodgates to many patent infringement lawsuits.[10]

Economists and experts have suggested for many years now that the patent system does more harm than good for the healthcare system.[11] A better incentive system is a prize system that separates the act of inventing the vaccine from the actual drug production and distribution.[12] In a crisis situation, like the current global pandemic that we are in, nations should not be engaging in economic nationalism or relying on a patent system that does not foster the most efficient solution.[13] Ultimately, when it comes to a global health pandemic, a system that promotes helping all should be prioritized above economic gain – and the current patent system may not be the right system for that.

 

[1] COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Coronavirus Resource Center (Sept. 23, 2020, 7:15pm showing 31,759,233 cases worldwide and 973,904 deaths), https://coronavirus.jhu.edu/map.html [https://perma.cc/9GBZ-KZDB].

[2] Rebeca Echevarria Harasimowicz, The Global Patent Race for a COVID-19 Vaccine, NAT’L L. Rev. (Mar. 24, 2020), https://www.natlawreview.com/article/global-patent-race-covid-19-vaccine [https://perma.cc/Y54W-5Z3Y].

[3] Id.

[4] Natalie Stoianoff, Whoever Invents a Coronavirus Vaccine Will Control the Patent – and, Importantly, Who Gets to Use It, The Conversation (May 29, 2020), https://theconversation.com/whoever-invents-a-coronavirus-vaccine-will-control-the-patent-and-importantly-who-gets-to-use-it-138121 [https://perma.cc/JH9P-CDYK].

[5] Simon Lester, We Need a Coronavirus Vaccine. Patents Might Slow the Process., CATO Institute (April 8, 2020), https://www.cato.org/publications/commentary/we-need-coronavirus-vaccine-patents-might-slow-process [https://perma.cc/4L35-5X73].

[6] Supra note 1.

[7] Joel Wallace, Mad Dash to Coronavirus Vaccine May Face Legal Hurdles, IPWatchDog (Mar. 12, 2020), https://www.ipwatchdog.com/2020/03/12/mad-dash-coronavirus-vaccine-may-face-legal-hurdles/id=119790/ [https://perma.cc/7ZGH-D7A4].

[8]  Simon, supra note 4.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.