0

Can Artists Stop Politicians from Using Their Music?

Written By: Amy Metzgar

Politicians use music as a soundtrack to their campaign rallies,[1] commercials,[2] and other election events.[3]  Generally, as long as the campaign has obtained a public performance license (or the venue they are using has a public performance license), the campaign is able to use the music.[4]  The problem arises when the artists do not support the politicians that are using the music and do not want their songs associated with certain political campaigns.

Besides simply asking politicians to stop playing the artist’s music, there are some legal remedies that an artist can use to challenge a politician and their campaign from using music that is properly licensed: the artist’s Right of Publicity, the Lanham Act, and False Endorsement.[5]  However, most artists who are signed with record labels do not own the copyright to their songs,[6] which makes it difficult for the artist to challenge the campaign’s use of their music.  When artists do not own the copyright to their music, they have to rely on the entity that owns the copyright to take any legal action.  So how do artists who do not own the copyright to their music stop politicians from using that music, especially when the campaigns have obtained the correct licenses?

While it is almost always an option for the owner of the copyright to file suit against the politician or the campaign, there is a much easier and more cost-effective method discussed in Danwill Schwender’s article The Copyright Conflict between Musicians and Political Campaigns Spins Around Again[7] where he concludes, “negative publicity may prove the most reliable deterrent” in artists stopping campaigns from using their music.[8]  Artists such as Adele, Neil Young, Bon Jovi, Elton John, and many more[9] have utilized the method of asking the campaign directly to stop using their music.  For some of the artists, this method worked, but for others, the campaign would simply prove that they had the proper license and continue to use the songs without the artist’s approval.[10]  This has worked for some artists because the fallout that can come from using music without the artist’s permission (even with the correct licensing) can have a negative impact on how people view the campaign.  Without legal recourse, asking the politician to stop using the music or sending a cease and desist letter is the only way that an artist has any chance of getting the politician to stop using their music.

In order to make it easier for artists to control when politicians use their music, the campaign should need to get explicit permission from the copyright owner, in addition to obtaining the proper license, in order to use music for campaign rallies, commercials, and other campaign related activities.  This would protect the rights of artists and keep them in control of how their music is used.  Until this happens, artists will have to rely on publicly asking politicians to stop using their music and hope that they listen.

 

[1] Ted Johnson, Adele Objects to Use of Her Music at Donald Trump, Other Campaign Rallies, Variety (Feb 1, 2016, 12:28 PM), http://variety.com/2016/music/news/donald-trumpadele-music-rallies-1201693891/ [https://perma.cc/V22L-BPMG].

[2] Daniel Kreps, Jackson Browne Settles With GOP Over “Running on Empty” Ad Use, Rolling Stone, (July 21, 2009 5:48 PM), https://www.rollingstone.com/music/music-news/jackson-browne-settles-with-gop-over-running-on-empty-ad-use-250454/ [https://perma.cc/P6T2-KYTV].

[3] Steve Knopper, Why Politicians Keep Using Songs Without Artists’ Permission, Rolling Stone, (July 9, 2015 7:13 PM), https://www.rollingstone.com/music/music-news/why-politicians-keep-using-songs-without-artists-permission-36386/ [https://perma.cc/LNN6-G8XR].

[4] ASCAP, Using Music In Political Campaigns: What You Should Know, https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf [https://perma.cc/Z8JF-WZKV].

[5] Id.

[6] Helienne Lindvall, Why Artists Should Retain Ownership of Their Recordings, The Guardian, (Jan 29, 2009 12:17 PM), https://www.theguardian.com/music/musicblog/2009/jan/29/recording-copyright-ownership#:~:text=Traditionally%2C%20when%20an%20artist%20signs,have%20a%20right%20to%20royalties [https://perma.cc/LEJ2-RQ93].

[7] Danwill D. Schwender, The Copyright Conflict Between Musicians and Political Campaigns Spins Around Again, Jstor, (2007),https://www.jstor.org/stable/pdf/10.5406/americanmusic.35.4.0490.pdf?refreqid=excelsior%3Aa97a7447d5f5984e11545ec8c51ea878 [https://perma.cc/3C8W-7NEH].

[8] Id.

[9] Charles Stockdale & John Harrington, 35 Musicians Who Famously Told Politicians: Don’t Use My Song, USA Today, (Jul 16, 2018 3:10 PM), https://www.usatoday.com/story/life/music/2018/07/16/35-musicians-who-famously-told-politicians-dont-use-my-song/784121002/ [https://perma.cc/7BLP-6RBK].

[10] Id.

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

Who owns posthumously released music?

Written By: Ciana Custino-Phillips

Musicians who write and produce their own music often copyright their work to have complete control over its use and profitability. Copyrights allow artists to distribute, perform, and publicly display their work and subsequently profit from the music they create while preventing others from using or reproducing their work. [1] Copyrighted material is protected for seventy years after the artist’s death; however, many questions tend to arise when artists pass away and have their music released posthumously. [2] This exact situation occurred recently when Malcolm James McCormick, known professionally as Mac Miller, tragically died in September 2018, in the height of his career, only weeks after his fifth studio album released. [3]

McCormick was an established rapper, singer, songwriter, and record producer. By the age of twenty-six, McCormick had amassed millions of fans and become known for championing the genre of melodic hip-hop on several of his gold-certified albums. [4] His death was shocking and unexpected, but his fans were even more surprised when McCormick’s sixth studio album was released posthumously on January 17, 2020, after his good friend and music-making partner, Jon Brion, finished producing the records Miller created prior to his death. [5] Although it is clear that McCormick owns all of the work that he released and copyrighted prior to his death, his most recent release begs the question, who has ownership of McCormick’s intellectual property and who will be receiving royalties from his posthumous album release?

Copyrights and royalties are considered personal property and after one’s death, personal property can be transferred through intestate succession or assessment in trusts or wills. [6] Trust and wills allow artists to distribute their assets to various types of beneficiaries including individuals, charities, or even museums. [7] If an artist has not created a will or trust, their property can be obtained by their spouses or blood-relatives through intestate succession. [8]

In this case, prior to McCormick’s death, he had made the responsible decision of putting his assets in a revocable trust. [9] Revocable living trusts are trusts that can be adjusted as needed throughout the creator’s lifetime and allow the trustor to transfer property to their beneficiaries. [10] Although there are rumors that McCormick left all of his assets to his mother, father, and older brother, there is no way for the public to be sure, since revocable trusts are private, as opposed to wills, which are accessible to the general public. [11] Wills are common among most people; however, musicians have been creating revocable trusts in place of wills with an increasing regularity. [12] It allows them to protect their assets, assign who will be in charge of their property after their death, alter the trust as their financial circumstances change, and keep their assets protected from the public. [13]

Unfortunately, McCormick’s music career was tragically shortened, but his fans can rest easy knowing that his estate is in the control of the people he hand-selected to control his career after his death. And thankfully, many artists are following in his footsteps by protecting their work through revocable trusts.

[1] 17 U.S.C. § 106 (2019).

[2] 17 U.S.C. § 302 (2019).

[3] Brendan Klinkenberg, Mac Miller Dead at 26, Rolling Stone (Sept. 7, 2018, 5:25PM), https://www.rollingstone.com/music/music-news/mac-miller-dead-at-26-720756 [https://perma.cc/C8NG-D6TV].

[4] Id.

[5] Craig Jenkins, ‘Oh My God, He’s Even Better Than I Thought’ Producer Jon Brion on the gutting task of completing Mac Miller’s final album after his sudden death, Vulture (Jan 21, 2020), https://www.vulture.com/2020/01/mac-miller-circles-jon-brion-interview.html [https://perma.cc/AP7B-7D8K].

[6] 17 U.S.C. § 201 (2019).

[7] Id.

[8] Id.

[9] Sara M. Moniuskzo, Mac Miller Left Behind A Will, But Who Will His Estate Go To, USA TODAY (Sept. 15, 2018, 1:29PM) https://www.usatoday.com/story/life/people/2018/09/15/mac-millers-left-behind-but-who/1316618002 [https://perma.cc/YH6H-SM8J].

[10] Greg Iacurci, Deceased rapper Mac Miller was 26 and had a will – similar to that of Michael Jackson, Investment News (Sept. 21, 2018), https://www.investmentnews.com/deceased-rapper-mac-miller-was-26-and-had-a-will-similar-to-that-of-michael-jackson-76162 [https://perma.cc/LQ7G-TVZX] .

[11] Id.

[12] Id.

[13] Id.

1

Who Owns Your Tattoo?

Written By: Ashar Philson

Like every law student, I constantly apply the law to everything in my environment, from the warning signs posted on waterslides, to the video games my little brothers play. In fact, last weekend, I watched one brother beat the other in a game of NBA 2k. I wondered, what rights do the video game owners have over depicting an avatar version of an NBA player, including the tattoos on the NBA player’s body? What rights, if any, do the tattoo artist have over these digitized images of their tattoo work and can they legally ask for payment of such depiction? Since these tattoos are on the NBA players’ bodies, is it not believable that the players themselves have a right, too? Shouldn’t the players be able to determine who can publicize their identity and choose any characteristics related to their identity to be depicted?

The first issue addresses whether a tattoo is eligible for copyright protection. Such protection would give a tattoo artist the power to preclude others, like NBA players and video game companies, from reproducing, distributing, and displaying the protected tattoo. [1] Copyright protection applies to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.” [2] Works of authorship include pictorial, graphic, and sculptural works. [3] It is clear that a tattoo falls within the category of pictorial, graphic, and sculptural works. Depending on the look of the tattoo, it may arguably be deemed an “original” work of art. A tattoo is “fixed in a tangible medium of expression” because it has been defined as “a mark, figure, design, or word intentionally fixed or placed on the skin”. [4] Therefore, a tattoo artist has the ability to copyright his or her own tattoo work that is placed on the bodies of others.

Generally, works of art protected under copyright require a license from the copyright owner or else they are subject to infringement. [5] A violation of any exclusive right of the copyright holder, such as reproduction, distribution, public performance, or display, constitutes copyright infringement. [6] For a successful infringement claim, a tattoo artist must prove the tattoo was derived or actually copied by the defendant, resulting in the alleged infringing work that has a substantial similarity to the plaintiff’s work. [7]

What rights or control are left to the NBA players in the depiction perceived by their avatar and within the public domain as a whole? Does the copyright protection go against the NBA player’s rights? The courts have not fully provided an opinion on this matter. This may be due to the fact that many cases facing this issue have settled out of court. [8] It has been suggested that the courts view tattoo application as an implied license for the subject to display the tattoo. [9] This interpretation seems reasonable since these artists know of the risk that their clients may choose to use their body and looks for commercial use. In addition, with advances in technology comes the need for an amendment to the copyright law. One solution may be to limit copyright protection to preclude works of art that are “fixed” on the body of another individual. This limitation will not only promote creativity but will prevent artists from having control over tattoos or modifications made on another person’s body to which that person may now feel is a part of their own identity.

[1] 17 USC § 106.

[2] 17 USC § 102.

[3] Id.

[4] Tattoo, Merriam Webster Inc., https://www.merriam-webster.com/dictionary/tattoo (https://perma.cc/4UXL-HS8H) (last visited Jan. 18, 2020).

[5] Managing Copyrights and Negotiating Agreements, Berkeley Library, https://www.lib.berkeley.edu/scholarly-communication/copyright/managing-copyrights (last visited Jan. 8, 2020).

[6] Definitions, Copyright.gov, https://www.copyright.gov/help/faq/faq-definitions.html (https://perma.cc/BNP9-S2MQ) (last visited Jan. 8, 2020).

[7] Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2018 U.S. Dist. LEXIS 54721, at 4 (S.D.N.Y. Mar. 30, 2018).

[8] Katie Scholz, Copyright and Tattoos: Who owns your ink?, IPWatchdog (July 26, 2018), https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/ (https://perma.cc/ZUD4-JJPH).

[9] Id.

 

 

0

Stairway to Heaven: A Copyright Infringement Decades in the Making

Written By: Isaac Arreola

Stairway to Heaven has been acclaimed as one of the most iconic pieces of rock-and-roll history. [1] The opening guitar piece has long been recognized as the work of Led Zeppelin guitarist, Jimmy Page. [2] However, there has been a legal dispute over who actually wrote the famous guitar introduction. [3]

Taurus was written by the Los Angeles based rock band, Spirit, and was released on the band’s debut album in 1968. [4] Randy Wolfe, commonly known as Randy California, was the guitarist and songwriter for the band. [5] Wolfe’s passing in 1997 did not discourage legal action from arising 20 years later.

On May 31, 2014, Michael Skidmore, the trustee of Randy Wolfe, filed a copyright suit against Led Zeppelin, the individual members of the band, the band’s record label, and the record labels associated with the band. [6] Skidmore claimed Led Zeppelin’s song, Stairway to Heaven, infringed on Wolfe’s song, Taurus. [7]

Aside from the dispute over whether the songs really sound alike, the statute of limitations was the real issue. Generally, there is a three-year statute of limitations for copyright cases. [8] Why is Skidmore’s claim not barred if the alleged infringement took place decades ago? When a defendant “commits successive violations, the statute of limitations runs separately from each violation.” [9] Each infringing act will have its own statute of limitations, allowing a party to claim copyright infringement years after the initial infringement. Skidmore can claim copyright infringement every time Led Zeppelin issues a new release. [10]

On October 8, 2014, Skidmore filed his first amended complaint with two claims: (1) Stairway to Heaven infringes the song, Taurus, and (2) a violation of the right of attribution. [11] Zeppelin moved for summary judgement on both claims. [12] On April 8, 2016, the United States District Court for the Central District of California granted Zeppelin’s summary judgment motion on the right of attribution claim but denied the summary judgment motion on the copyright infringement claim due to “sufficient evidence” to proceed to trial. [13] On June 23, 2016, a jury returned a verdict in favor of Zeppelin, finding Zeppelin “had not infringed Wolfe’s copyright in the song, Taurus.” [14]

Skidmore appealed. [15] He argued the district court erred in its jury instruction and abused its discretion by not allowing the defense to play the disputed song to a jury. [16] The song was played to Led Zeppelin guitarist, Jimmy Page, outside the presence of the jury; Page was subsequently questioned about the song in front of the jury. [17] In light of Skidmore’s argument, the Court of Appeals found the district court erred in its judgment. A rehearing en banc was subsequently granted by the Ninth Circuit on June 10, 2019. [18]

The pending rehearing of the case leaves the music world wondering how far this case will go. In a similar case decided in 2018, artists Robin Thicke and Pharrell Williams were found to have infringed on Marvin Gaye’s song, Got to Give it Up. [19] The Marvin Gaye estate was awarded $5.3 million in damages. [20] Although a jury found the songs to be similar, the dissenting circuit judge on appeal, Jacqueline H. Nguyen, did not. [21]

Nguyen voiced her disappointment with the majority’s decision, stating, “The majority allows the Gayes to accomplish what no one has before: copyright a musical style.” [22] Stemming from Nguyen’s statement, the policy behind copyright in a musical style would seek to protect an artist, by not allowing complaints filed any time there was a remote chance of an infringement. This would essentially disrupt the balance of artist creativity and legal rights by forcing artists to carefully consider each piece of their work, so no copyright infringement occurs.

With the similarities and differences between songs being subtle, experts are used to help make the distinction. In the Marvin Gaye case, the Gaye family estate used an expert witness to testify to the similarities in Blurred Lines and Got to Give it Up. [23] The court used “analytical dissection of a work and expert testimony,” which “[required] breaking the works ‘down into their constituent elements and comparing those elements for proof of copying as measured by “substantial similarity.”’” [24] In an article by Alex Ross titled, The Unoriginal Originality of Led Zeppelin, Ross similarly breaks apart the elements of the opening guitar piece in dispute:

In the [Taurus], the lower voice descends by chromatic steps while the upper voice repeats notes of the tonic triad (A minor) . . . . In Stairway to Heaven, also in A minor, the lower voice descends by half-steps while the upper voice ascends—up an octave to an A and then further up to B and C. [25]

If the exact notes and pattern have to be argued to prove distinctiveness, then it would seem that the scope of copyright protection has been broadened, not narrowed, to uphold any cognizable element in the copyright claim.

The slippery slope is that some copyright infringement cases potentially broaden the scope to what constitutes copyright infringement. If Skidmore is decided in the same way as the Marvin Gaye case, then we could potentially see the result of an alleged copyright infringement decades in the making.

 

[1] 500 Greatest Songs of All Time, Rolling Stone (April 7, 2011, 4:33 PM), https://www.rollingstone.com/music/music-lists/500-greatest-songs-of-all-time-151127/led-zeppelin-stairway-to-heaven-2-70822/.

[2] Alex Ross, The Unoriginal Originality of Led Zeppelin, The New Yorker (April 14, 2016), https://www.newyorker.com/culture/cultural-comment/the-unoriginal-originality-of-led-zeppelin.

[3] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016).

[4] ALLMUSIC, https://www.allmusic.com/album/spirit-mw0000653465/credits (last visited Sep. 30, 2019).

[5] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[6] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1, (C.D. Cal., Aug. 8, 2016), vacated and remanded sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 905 F.3d 1116 (9th Cir. 2018).

[7] Id.

[8] 17 U.S.C.A. § 507(b).

[9] Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962, 1969 (2014).

[10] Peter Decherney, Not too Late for a Lawsuit Against Led Zeppelin’s ‘Stairway to Heaven’, Forbes (May 21, 2014, 11:03 AM), https://www.forbes.com/sites/peterdechercherney/2014/05/21/not-to-late-for-a-lawsuit-against-led-zeppelins-stairway-to-heaven/#515084544927.

[11] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[16] Id.

[17] Id.

[18] Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[19] Williams v. Gaye, 895 F.3d 1106, 1115 (9th Cir. 2018).

[20] Id. at 1118.

[21] Id. at 1138.

[22] Id.

[23] Id. at 1124.

[24] Id. (quoting Rice v. Fox Broad. Co., 148 F. Supp. 2d 1029, 1051 (C.D. Cal. 2001), aff’d in part, rev’d in part, 330 F.3d 1170 (9th Cir. 2003).

[25] Ross, supra note 2.

 

 

 

0

When Inspiration Becomes Imitation: A Look at Copyright and Trademark Use in Harry Potter-Themed Cafes

Written By: Justine Levy

Sitting in a local cafe in Las Vegas called Bad Owl, I found myself wondering if they acquired licensing rights to one of the biggest franchises in history – Harry Potter. Although the shop was noticeably busy, I could not help but think how pricey that license would cost.

This themed café has distinctive features that anyone familiar with the Harry Potter universe would immediately recognize. Their décor is of owls and magical ornamentation and their tagline is “Serious Coffee with a Hint of Magic.” Those acquainted with Harry Potter will recognize “serious” as an homage to Sirius Black, a significant character in the franchise. Bad Owl also serves a beverage initially entitled “butter beer lattes” but re-branded to “butterbrew” within a year of opening. [1]

When the first location opened, Bad Owl was a sensation, and a media frenzy followed. Their website highlights that they have been featured on Zagat, Cosmopolitan, Fox News, Sprudge, Eater, Thrillist, and PopSugar. [2] I recall seeing videos about the store shared on Facebook by friends and family far from Las Vegas. It is hard to believe that they have avoided the diligent legal watchdogs at Warner Bros. with that level of publicity, unlike the owners of 9 ¾ Café.

9 ¾ Café opened in 2017 in Mong Kok, Hong Kong and differs drastically from the Bad Owl locations in Las Vegas. 9 ¾ Café is less a whimsically inspired coffee shop and more of a literal interpretation of the Harry Potter films. The café is adorned with props from the movie, such as the Gryffindor coat of arms, broomsticks, and wands. There is half of a trolley sticking out from the wall almost identical to the one found at King’s Cross Station in London. And, they sell food and drink items named Professor McGonagall’s Magical Salad, Polyjuice Potion, and Muggle Drink (of which Warner Bros. have trademark registrations on). [3]

Although the restaurant opened in 2017, Warner Bros. only filed suit against the café in January 2019, citing copyright and trademark infringement. [4] It is reported that Warner Bros. is requesting the café change its name and remove the infringing items, damages for use of the copyrights and trademarks, and several injunctions. [5] This is, understandably, not the first time Warner Bros. has pursued legal action against alleged would-be Harry Potter infringers.

For example, in 2009 Warner Bros. shut down a Harry Potter-themed Halloween dinner that was to be held in West London for alleged copyright infringement. [6] Many articles on the story fail to mention the key issue Warner Bros. had with the event – the host Ms. Marmite Lover was selling tickets and charging for the dinner. [7] This means that Ms. Marmite would have been commercializing on the Harry Potter trademark and copyright.

Themed cafes (and dinners) raise many questions about the scope of trademark and copyright protection. How much use of the original material is too much? When does inspiration become imitation? Would a fair use analysis be proper or sufficient for determining boundaries of these cafes?

So, how has Bad Owl avoided a similar fate than that of 9 ¾ Café or Ms. Marmite Lover? It may be because Bad Owl is merely an inspired expression of Harry Potter instead of a literal interpretation.

 

[1] Bradley Martin, Harry Potter-Inspired Bad Owl Coffee Flies to the Southwest, EATER LAS VEGAS (Aug. 7, 2017, 12:00 PM), https://vegas.eater.com/2017/8/7/16104850/bad-owl-coffee-expands-southwest.

[2] BAD OWL COFFEE (Sept. 15, 2019), https://www.badowlcoffee.com.

[3] Coconuts Hong Kong, ‘Harry Potter and the Lawyers of Admiralty’: Wizard-Themed Café Sued for Copyright Infringement, COCONUTS HONG KONG (Jan. 16, 2019, 4:10 PM), https://coconuts.co/hongkong/food-drink/warner-bros-sues-harry-potter-themed-cafe-for-trademark-infringement.

[4] Lianne Tan, Copyright, Trade Marks and Character Themed Cafes, LEGALVISION (Jun. 8, 2016), https://legalvision.com.au/copyright-trade-marks-and-character-themed-cafes.

[5] Hong Kong Harry Potter-Themed Café Sued for infringement, THE COPYRIGHT LAWYER (Jan. 16, 2019), https://copyrightlawyermagazine.com/hong-kong-harry-potter-themed-cafe-sued-for-infringement.

[6] Emma Rowley, Harry Potter and the dinner party of doom, LONDON EVENING STANDARD (Oct. 26, 2009, 11:19 AM), https://www.standard.co.uk/news/harry-potter-and-the-dinner-party-of-doom-6761727.html.

[7] Thom Geier, Harry Potter and the Deathly Lawyers: Warner Bros. blocks a fan’s Potter-themed dinner party, ENTERTAINMENT WEEKLY (Oct. 27, 2009, 3:12 PM), https://ew.com/article/2009/10/27/harry-potter-lawyer-dinner-party.

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End of U.S. Copyright Term Extension Act is a Win for the Commons

Written By: Christopher J. Martinez

 

Advocacy groups in favor of creative works falling into the “public domain” received a win when the Sonny Bono Copyright Term Extension Act (“CTEA”) expired January 1, 2019. The American University Washington College of Law co-hosted an event with Creative Commons USA, Wikimedia DC, and the Program on Information Justice and Intellectual Property (“PIJIP”), discussing CTEA’s expiration, entitled “An Expansion of the Commons: Copyright, Creative Commons and the Public Domain.”[1] The event focused on why the shift in policy took place, and “what it mean[t] for the public domain.”[2]

The public’s perception of the public domain was a contributing factor for the non-renewal of the CTEA. Whereas the public domain was seen in a negative light, akin to a “junk heap,” the advent of the internet shifted public opinion of the public domain to that of a “resource for creativity.”[3]

The Copyright Act of 1976 originally extended copyright protections from a maximum of 56 years to 75 years.[4] This was again changed when the CTEA was enacted by Congress in 1998, extending copyright protection to a maximum of 95 years.[5] Without an extension, works from 1923 have finally entered the public domain. [6]

The CTEA faced constitutional challenges in its early years, despite the negative opinion associated with the public domain. In Eldred v. Ashcroft, various associations using previously copyrighted works that had fallen into the public domain brought suit against the Attorney General, claiming the CTEA violated the constitutional requirement stating copyrights would last for “limited times,” and thus violated their First Amendment rights.[7] The Supreme Court held the extension of 20 years was acceptable, equating it to extensions that patents had received, and which did not make protections indefinite.[8] The Court further held the CTEA “protect[ed] authors’ original expressions from unrestricted exploitation,” which is different from the First Amendment that protects “free speech concerns when the government compels or burdens the communication of particular facts or ideas.”[9]

While Creative Commons was not the plaintiff in Eldred v. Ashcroft, it was born out of the lost case,[10] and had the same concerns. It does not want to completely end copyright protections but does not want protections to endue for such a long time. Instead, it wanted to create “new spaces for creative reuse[.]”[11] Creative Commons allows authors to “share [their] knowledge and creativity to build a more equitable, accessible, and innovative world.”[12] It supports copyright protections, and even proposes six different types of licenses designed to give authors the protections they desire, while allowing works to be cultural resources through specific and limited means.[13]

Going forward, works from 1923 are in the public domain, meaning each new year strips old works of their protections and introduces them to the public domain, allowing more works to be used in “education or silent films,” for example.[14] Meredith Jacob, assistant director for academic programs of PIJIP, states “[t]here is a real demand [among educators] for materials in which they don’t have to make the fair use considerations.”[15] Finally, despite this win, it is still important for people to discuss “how public domain and fair use furthers their needs on the issues that they are passionate about.”[16]

 

[1] David Branigan, Open Access Advocates See End of US Copyright Term Extension Act As Win for Commons,Intellectual Property Watch (January 26, 2019), https://www.ip-watch.org/2019/01/25/open-access-advocates-see-end-us-copyright-term-extension-act-win-commons/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Eldred v. Ashcroft, 537 U.S. 186, 186 (2003).

[8] Id.

[9] Id.at 190.

[10] Branigan, supra note 1.

[11] Id.

[12] What We Do, Creative Commons, https://creativecommons.org/about/ (last visited Apr. 10, 2019).

[13] Branigan, supra note 1.

[14] Id.

[15] Id.

[16] Id.

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Supreme Court Considers When a Copyright Has Been Legally Registered

Written By: Shreya Tewari

The Supreme Court heard oral argument on January 8, 2019 for Fourth Estate Public Benefit Corp. v. Wall-Street.com. This case asks The Court to decide when the “registration of [a] copyright claim has been made in accordance with [the United States Copyright Code outlined in Title 17].”[1] Copyright owners are allowed under the statute to bring an infringement claim once their copyright claim has been registered. There has long been a circuit split on whether that registration has occurred when the copyright holder has submitted the application, deposit, and fees to the Copyright Office (as the 5th and 9th Circuits have held), or whether it has occurred once the Copyright Office approves or rejects the copyright holder’s application (as held by the 10th and 11th Circuits).[2]

The petitioner in the case, Fourth Estate, is a membership-based organization that promotes free press and licenses journalistic work that is posted to different online sites.[3] The licensing agreement requires websites that post their materials and articles to remove them upon canceling their subscription with the organization.[4] Wallstreet.com had posted articles from Fourth Estate to their website during the course of their membership and failed to remove the articles upon cancellation.[5] Fourth Estate filed applications to register the copyrights of hundreds of their articles and shortly after, filed a copyright infringement claim against Wallstreet for the articles not taken down.[6] The district court dismissed this claim on the grounds that the copyrights were not registered within the meaning of the statute because they had not been approved before the claim was filed.[7] The 11th Circuit affirmed this decision.[8]

The Supreme Court is now called to settle the conflict in the competing interpretations of the statute. The oral advocate for the petitioners made the case that the purpose of the statute is to encourage the registration of copyrights and should thus be read to protect the rights of those who have gone through the procedure of registration.[9] If Congress’ goal was to promote official registration of copyrights, that goal has been met with the filing of the application.[10] The argument focused on the burdens copyright holders would face if they had to wait for their application to be processed before being able to seek any remedy for infringement, given that the processing can take months.[11] The United States and the advocate for Wallstreet argued that there were statutory exceptions designed to address the issue of a delay in infringement removal so the meaning of the statute itself had to be something that would account for those exceptions.[12]

In anticipation of the Supreme Court’s opinion on this case, it is worth considering the implications of either decisional possibility. If the Supreme Court decides that the copyright application must be processed in order to file an infringement suit, the effect on copyright holders will be massive. There will be either more pressure to try and pay for an expedited application process, disadvantaging copyright owners who cannot pay higher fees, or there will be increased litigation about which copyrights fall within the statutory exceptions designed for infringement enforcement without delay. If the Court decides that the only the application must be filed, the potential for infringement liability will continue to grow as the speed of innovations, inventions, and developments in the technical world continues to grow as well, potentially opening the door to future issues about how infringement liability will interact with the integration of artificial intelligence and other new technologies into more and more aspects of mainstream life. There will always be a potential issue as to whether the increased scope for infringement liability, given the case that a copyright does not have to rejected or approved to file for infringement, is suppressing open development and technological progress and whether that will impede on other rights or aspects of life.

 

————————————————————-

Update (March 11, 2019):

On March 4, 2019, Justice Ginsburg delivered the unanimous opinion of Fourth Estate affirming that a copyright owner cannot file suit until the Copyright Office has registered the application. The Court relied on the reasoning that other sections of the governing statute, § 411, would be unnecessary if the word “register” only meant filing the application and not waiting for the Copyright Office to actually make a decision. The statute, in relevant part, outlines an exception that allows a copyright suit after the registration of a copyright has been refused which would be unnecessary if a copyright owner could sue right after filing. Therefore, copyright owners must now wait for action by the Copyright Office before bringing suit.

 

[1] 17 U.S.C.A. § 411(a) (Westlaw through through P.L. 115-281. Also includes P.L. 115-283 to 115-333, and 115-335 to 115-338. Title 26 current through P.L. 115-442.

[2] Jessica Litman, Argument preview: When has registration of a copyright claim “been made”?, SCOTUSblog (Jan. 3, 2019, 10:10 AM), https://www.scotusblog.com/2019/01/argument-preview-when-has-registration-of-a-copyright-claim-been-made/

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

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9th Circuit Decision to Overturn Jury Verdict in “Stairway to Heaven” Case

Written by: Abbie Lueken

The 9th circuit has reversed a jury verdict in favor of Led Zeppelin for their alleged copyright infringement of the song “Taurus” by the band Spirit. According to copyright lawyer Rick Sanders, the reason for the reversal was the lack of a jury instruction that the parties agree should have been included.[1]

The jury instruction should have included a part about what to do with a work that is comprised of unprotectable elements.[2] According to the 9th circuit, “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”[3]

On the issue of selection and arrangement, Led Zeppelin argued that the only similarities between “Stairway to Heaven” and “Taurus” were elements that are unprotectable. The plaintiffs argued that even if the elements of the song are unprotectable, the selection and arrangement of them is original and “Stairway to Heaven” infringed on that original arrangement.[4]

The jury returned a verdict for Led Zeppelin, and Sanders believes the outcome would have been the same even with the jury instruction.[5] The jury found that the two songs “were not substantially similar under the extrinsic test.”[6] Copyright infringement requires copying and improper appropriation. The plaintiff attempted to prove access and similarity, but the jury ultimately found the proof to be insufficient. Given the complexity and subjectivity of copyright law, the lack of jury instruction seems to be reasonable grounds for a reversal, especially given the fact that both parties agreed that the instruction should have been included. However, the cost of litigating these cases makes the reversal a bit frustrating. It will be interesting to see what happens next in the case.

 

[1] Sanders, Rick. “Can’t Wish Away The Mistakes In The Original ‘Stairway to Heaven’ Verdict.” TechDirt. October 16, 2018. https://www.techdirt.com/articles/20181012/17372140824/cant-wish-away-mistakes-original-stairway-to-heaven-verdict.shtml.

[2] Id.

[3] Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).

[4] Sanders, supra note 1.

[5] Sanders, supra note 1.

[6] Skidmore v. Led Zeppelin, No. 2:15-cv-03462-RGK-AGR (C.D.C.A Sep. 28, 2018).

The U.S. Versus the E.U. – The Inconsistent Nature of Design Protection

Written by: Daniel Armstrong

How difficult should it be to protect design? It’s a common enough notion: risk-takers and innovators want to be rewarded for creative solutions and designs, but in order to reap the benefits of their labor, the intellectual property they’ve created needs to be protected from copying.

The problem in the US: Many criticize the legal framework in the United States as providing inadequate protection to its designers, and warn that this protection deficit leaves designers feeling less motivated to enter the startup world in the first place. Those critics point to the European Union as an example of how the United States should reform its intellectual property protection framework.

Critics of the US legal framework have three primary complaints: First, the functionality doctrine—which prohibits protection of copyright works, trade dress, or patents that are simply functional, in order to avoid anticompetitive marketplace effects that would result from enforcement—is limiting the scope of design protection. Second, this diminished protection results in lower profits to designers and reduced drive for the public to innovate. Third, the costs and time needed to acquire protection make it harder for new designers and brands to stay ahead of the game, especially in rapidly moving industries like fashion. Continue Reading