Guide Through the Legal Jungle

My Recent Experiences with the Copyright Registration Backlog

A recent Washington Post article reported that the Copyright Office is experiencing a sixteen-month backlog in processing copyright registration applications. The backlog is attributed to growing pains as the Copyright Office transitions from a registration process in which it accepted hard copy paper applications to a registration process in which the Copyright Office encourages applicants to file electronically.

My Own Recent Experiences with Copyright Registration Processing

In Winter 2008, I prepared and filed two separate copyright registration applications on behalf of clients. This was prior to the broad availability of the Copyright Office’s electronic registration system so I filed hard copy paper applications.

The First Application. The first was a simple registration of a direct-to-dvd film production. I received the copyright registration certificate for the dvd in July 2008. That was about six months after the filing date which is the processing time one normally expects of the Copyright Office.

The Second Application. The second was a registration for a website and was a bit more complicated. To minimize copyright registration applications and filing fees for the client, I filed the website copyright registration application as a group registration for an automated database. If your website qualifies as an automated database, you can file all updates from a three-month period on a single application for one filing fee. Normally, registration covers the website only as it existed on the registration date. That means registration of later revisions to your website normally requires an additional application and an additional registration fee.

I received the registration certificate for the website just last week! Seventeen months after the filing date! Whew!

Here’s the Good News

Here are two note-worthy points the Washington Post article did not make explicitly clear:

First Point. Registration with the Copyright Office is not required to have a valid copyright in your work. Under current law, you have a valid copyright as soon as you create your work and fix in a tangible medium of expression meaning you have to write it down, record it, or save it to a computer file. While registration is not required, it does provide a number of benefits that help you maximize the protection in your work.

Second Point. Even though it may take the Copyright Office six to eighteen months to process your application, your registration is effective as of the filing date.

Making Money From Your Songs. Part Four. Music Publishing Issues for Bands.

This is the fourth and final part of my blog posting series on “Making Money From Your Songs”. Part One explains "What Is Music Publishing", Part Two discusses “Forming a Music Publishing Company”, and Part Three discusses the basic principles of "Joint Ownership of Songs".

Who Owns a Song Co-Written by Band Members?

If you’re in a band and you bring a song to the band that you have written completely on your own, you are clearly the owner of the copyright in the song. Even if another band member writes a new musical arrangement of the song or writes the part for his particular instrument, you are still the copyright owner of the song. However, when another member does more than just a bit of tweaking – such as writing a new hook or providing lyrics – your band mate arguably becomes a co-writer, and thus a co or joint owner, of the song.

Should All Band Members Have an Ownership Interest in Band Songs?

Some bands decide to share the copyright in the songs and all music publishing income – regardless of which band member writes the songs. Many music industry professionals disagree with this approach.

While one for all and all for one is a great band motto, you need to factor in that the copyright in your songs – and the corresponding opportunity to derive money from your songs – lasts for your lifetime plus seventy years. That’s longer than your band is going to be together. The copyright in your song can be passed onto your heirs. Think about if sharing all the publishing income from your songs is something you want to do even after your band is no longer together.

One Fair Alternative to Perpetual Joint Ownership of Band Songs

One alternative is having the songwriters hold onto the copyright in their songs but allowing all the band members to share in publishing revenue during the life of the band and perhaps for a set period thereafter. That way, the writers preserve their interest in what could become a very valuable property and the other band members receive some compensation for their role in the song’s success. For this structure to work, you need a very clear understanding of music publishing and a written agreement – preferably one that is written or at least reviewed by a knowledgeable music attorney.

Making Money From Your Songs. Part Three. Joint Ownership of Songs.

This is Part Three of my blog posting series on “Making Money From Your Songs”. Part One explains "What Is Music Publishing" and Part Two discusses “Forming a Music Publishing Company”.

Determining who holds an interest in music publishing interest can become more complicated if you collaborate on your songs or you perform with a band.

Basics of Joint Copyright Ownership in Songs

Each person who collaborates on a song becomes an equal joint owner of that song – unless there is a written agreement stating otherwise. For example, if there are two songwriters, each will own one-half of the entire song. If there are three songwriters, each will own one third of the entire song, and so on.

Note that even if one person writes the lyrics and another writes the melody, there’s not a separate copyright in the lyrics and a separate copyright in the melody. Instead, there’s one copyright in the entire song and each person who contributes owns an equal portion – unless once again there’s a written agreement that says otherwise.

What Joint Copyright Ownership Means in Practical Terms

As a co-owner, you have authorization to grant a non-exclusive license in the song. You don’t need the permission of your co-owners; however, you must give your co-owners their proportionate share of any revenue you make from the song. That means that each songwriter could potentially administer his portion of the song through his own music publishing company.

This has the potential of creating a logistical problem in the event someone wants an exclusive license in your song because all songwriters must agree to an exclusive license. Granting an exclusive license means that you can’t grant the same rights in the song to someone else. For example, a producer of a television commercial who wants to use your song might ask that the song not be licensed for use in any other advertisement.

Making Money From Your Songs. Part Two. Forming A Music Publishing Company.

This is Part Two of my blog posting series on “Making Money From Your Songs”. Part One explains What Is Music Publishing.

While some songwriters use a music publishing company to exploit their songs, others choose to handle their own music publishing. There are pros and cons on both sides of the issue. One advantage to acting as your own music publisher is keeping all of the income generated from your songs. Music publishing companies typically keep fifty percent of your songwriting revenue in return for helping you promote your songs. The disadvantages to handling your own publishing include foregoing the advance or upfront money normally paid by a music publisher. You’ll also be solely responsible for promoting your songs and handling all the administrative paperwork that goes along with music publishing.

Your decision on whether to work with a music publishing company may ride on whether or not you’re a songwriter who also performs. If you plan to record and release the songs you write on your own CD, you may not need the promotional muscle of a music publishing company. However, if your goal is to get well-known artists to cover your songs or to place your songs in film and television, a well-connected, experienced music publisher can get those placements for you.

If you decide to handle your music publishing yourself, you’ll need to form a music publishing company. The first question is who should hold an interest in the publishing, and how the publishing company should be set up. If you’re an individual who writes all your songs on your own and who performs as a solo artist, the answer is simple. You’ll be the sole owner of your music publishing company – although you may choose to organize your publishing company as a corporation or limited liability company instead of as a sole proprietorship.

Determining who holds an interest in the publishing can become more complicated if you collaborate on your songs or you perform with a band. I’ll address that issue in my next blog posting.

Making Money From Your Songs. Part One. What Is Music Publishing?

Exploitation is often used as a reference to the process of generating revenue from your songs and sound recordings. So where do you start in your efforts to make money from your music?

First, realize that there is a distinction between a song, which consists of the underlying melody and lyrics, and the recorded performance of a song. Each is a separate copyrighted work. Typically, each copyright is owned by a separate person or entity. Usually, the song is owned by the songwriter or the songwriter’s music publisher, and the sound recording is owned by the record company that released the CD. However, if you’re an unsigned artist making your own recordings, you’re most likely the copyright owner of both the song and the sound recording.

Being the copyright owner of a song or sound recording gives you certain exclusive rights. The exclusivity means that only you may exercise those rights, or authorize someone else to exercise those rights. You earn money from your songs by granting licenses to others to exercise those exclusive rights, and collecting the corresponding license income. This process of generating income from your songwriting is music publishing.

Europe May Forbid Photos of Your Home; US Law Does Not

Threats to Google’s Street View program illustrate how variations in international law can impact internet companies.

Street View, a 360-degree zoomable web application, allows you to use your computer to take a virtual tour of cities and towns and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology.

Google’s plans to expand Street View into European cities are encountering some bumps in the road. Germany threatened sanctions if Google failed to make some changes to the Street View program. Among other problems, Germany was most concerned with Google’s unauthorized filming of people’s residences and private property without their permission. Evidently that’s a no-no under German law. Directly across the pond, Beatle Paul McCartney joined in on the Google bashing and demanded that his London mansion be removed from Street View’s UK application. News reports indicated that Google complied with McCartney’s demand.

Don’t Try That In the United States

The European complaints about Street View remind me of a similar situation in the United States that generated a much different result. This U.S. situation focuses on singer/actress Barbara Streisand.

The California Coastal Records Project offers 12,000 aerial views and frames of the California coastline. After discovering that a single frame included her Malibu estate, Barbara Streisand sued claiming that the inclusion of her home in the photo invaded her privacy, violated California’s "anti-paparazzi" statute, and threatened her security. Not only was Streisand’s lawsuit dismissed on an anti-SLAPP motion, she was also ordered to reimburse California Coastal Records and other defendants $177,107.54 for their legal fees and her actions were extensively ridiculed in the media.

Courtney Love’s Twitter Defamation Lawsuit

Dawn Simorangkir, aka Dawn Younger-Smith, aka Boudoir Queen is an up and coming fashion designer who was retained by singer Courtney Michelle Love. After becoming unhappy with their business relationship, Love posted some not-very-nice and profanity-filled online comments about Simorangkir.

Simorangkir has filed a lawsuit against Love for libel and related claims.

Why Is Everyone So Atwitter Over the Courtney Love Defamation Lawsuit

Everyone seems quite excited that this defamation action spawned from comments that Love posted on the popular social networking site Twitter. Evidently, the Love/Simorangkir lawsuit is the first defamation action connected to someone’s activities on the micro-blogging site. Note that Love also posted comments on MySpace and on Simorangkir’s etsy.com feedback page

Is This Defamation Lawsuit Really Special?

Outside of the use of Twitter, I would say this defamation lawsuit is not that special. However, it should serve as reminder that bad behavior is not immune from consequences just because the bad behavior takes place via the internet.

As a general review of how to avoid defaming people, you might want to listen to my recent One-Minute How-To – Challenge interview during which I gave a one-minute overview of How to Avoid Defaming People In Your Writing.

Is Courtney Love In Trouble?

Maybe. Much of Love’s internet musings are a rant which could be classified as Love’s statement of her opinion about Simorangkir or simply as name calling. Insults and name calling by themselves are normally not actionable as defamation.

However, within her rant, Love does make statements that a court might interpret as being offered as statements of fact. According to Simorangkir’s complaint, Love said Simorangkir sold drugs, is a drug addict, has a history of dealing cocaine, has a history of assault and burglary, has a record of prostitution, has committed grand theft, stole cash and goods from Love, has engaged in felonious behavior, lied, embezzled money, has committed blackmail, was deemed an unfit parent, lost custody of her child, is a racist and homophobe, has outstanding warrants for her arrest, and that the Austin police confiscated Love's property from her home.

If Love made such statements about Simorangkir and the statements are false, those are good grounds for a defamation claim.

American Apparel Could Have Predicted Woody Allen’s Right of Publicity Lawsuit

(Update: According to an article in the New York Times, the Allen vs. American Apparel lawsuit settled on the court room steps this morning for $5 Million.)

The trial for Woody Allen’s lawsuit against American Apparel is scheduled to start today, May 18, 2009, in New York.

Why is Woody Allen Upset?

American Apparel used still images of Woody Allen from the film Annie Hall on billboards located in New York City and Los Angeles and in internet advertisements. In the image, Allen is in full Hasidic Jewish attire and has a full mustache and beard. The billboard includes a Yiddish phrase translated to mean “The Holy Rebbe” and the words “American Apparel”.

American Apparel did not seek Allen’s permission prior to posting the billboards. As a result, Allen filed a lawsuit against American Apparel in the Southern District of New York federal court.

Allen’s lawsuit includes a claim under Sections 50 and 51 of the Civil Rights Law of the State of New York which allows you to sue someone who uses your name, portrait, picture or voice in New York for advertising purposes without your permission. The lawsuit also includes a claim under Section 43(a) of the Lanham Act which allows you to sue if someone falsely implies you endorse a product or service.

Is the Billboard a Commercial Use of Allen’s Persona

The outcome of the court battle will focus on whether American Apparel’s true intent behind the billboard was to advertise its goods or to parody Mr. Allen.

American Apparel CEO Dov Charney argues that the billboard did not have a commercial purpose and is a parody. At trial, he plans to explain how the use of the image from the Annie Hall film makes a social statement and addresses social issues. If the court accepts that argument, the American Apparel billboard could be deemed a permissible parody protected by the First Amendment – regardless of the lack of consent from Allen.

In its documents filed by the court, American Apparel says “It strains the imagination to identify what ‘commercial transaction’ is proposed . . . The images do not feature or refer to any of American Apparel’s products, and so do not offer anything for sale.”

Personally, I do not have to strain my imagination too much to see how a consumer could interpret the billboard as an advertisement. American Apparel is known for its avant-garde advertising style. I have certainly seen progressive commercial advertisements that do not prominently feature or mention the product or service they are advertising.

Not a Smart Move by American Apparel

Even if American Apparel meant for the billboard to be a non-commercial parody, plastering Woody Allen’s face on a billboard just isn’t a smart move for someone who doesn’t want to wile away many hours at the center of a litigation proceeding.

One of the top questions to ask yourself when evaluating the risk of using someone’s material or persona without permission is whether the person has previously objected to similar uses of his material. It is a good bet that someone who has been aggressive in protecting his rights in the past will continue to be aggressive in protecting his rights in the future.

Without even doing any research, I am aware of two lawsuits filed by Woody Allen relating to the unauthorized use of his images in a commercial context. There are probably more Allen lawsuits out there.

American Apparel is not a fledgling operation struggling to finance its “creativity” with personal loans and credit card debt. It is a publicly traded company with a cadre of experienced attorneys at its disposal. One conversation with his legal team should have told American Apparel CEO Dov Charney that Allen would not be a happy camper when he saw the billboards and that a lawsuit might be a consequence of the billboard campaign.

Similarities to the Naked Cowboy Case

The Allen case reminds me of the Naked Cowboy case about which I also blogged. Robert Burck, better known as the Naked Cowboy, is a street performer who sings while accompanying himself on a white guitar. He wears a white cowboy hat, white cowboy boots, white briefs, and nothing else.

Burck sued Mars, the company that manufactures M&M candy after it posted a Times Square billboard featuring an animated blue M&M playing a white guitar and wearing an outfit similar to Burck’s.

Like Allen’s current case, Burck’s case was also before the Southern District of New York federal court. And like Allen’s current case, Burck’s claims included a Section 50/51 right of publicity claim and a Lanham Act false endorsement claim.

Burck lost his right of publicity claim because Mars did not use an actual photograph or likeness of Burck. Instead, they dressed up an M&M like him. There’s no Section 50/51 protection for evoking aspects of a fictional character you play.

The court allowed Burck’s Lanham Act Section 43(a) false endorsement claim to continue. As part of that claim, Burck alleged that consumers seeing the advertisement might incorrectly conclude that Burck had endorsed M&M candy. According to the court, Burck’s allegation was plausible and merited a hearing at a trial.

Ultimately, Burck and Mars settled the lawsuit without a trial. The parties did not publicly disclose the terms of the settlement.

Some Fan Site Do’s and Don’ts

I recently responded to an inquiry about how a company could get an unofficial fan page removed from a popular social networking site.

The query came at a great time. I’m completing the manuscript for my next book which is on internet law issues and was just working on the chapter that discusses what you can and cannot place on a fan site. Here's a preview:

Some Fan Site Do’s

A true fan site is a form of expression. You cannot use copyright, trademark, and other intellectual property laws to stop people from expressing themselves, from giving their opinions, and from otherwise exercising their First Amendment rights. That means fan sites can criticize, parody, and offer other forms of commentary concerning the object of their “fandom”.

Some Fan Site Don’ts

Activities that take fan sites beyond First Amendment parameters include

• referring to the fan site as the official site
• selling products or commercial advertising
• using a domain name that misleads consumers into thinking the fan site is an official or endorsed site
• posting copyrighted material in a manner that goes beyond fair use

WGA Script Registration Versus Copyright Registration

The Writers’ Guild of America (WGA) offers a script registration service for literary works. WGA membership is not required to use the service.

WGA registration does not provide the benefits of registration with the Copyright Office. For example, copyright registration is required before you can file a copyright infringement lawsuit or be eligible for statutory damages and attorneys’ fees.

However, there are two possible benefits to WGA registration:

• You can use WGA registration for treatments, outlines, story ideas, and similar materials that are normally not eligible for copyright protection (i.e., such “raw” materials don’t meet copyright law’s threshold test for original expression).
  
• You can use WGA registration as an intermediate step to keep unpublished material confidential until the material is ready for publication and registration with the Copyright Office. Material filed with the Copyright Office is available to the public (unless you request confidential treatment). Material filed with the WGA is not.

These WGA benefits might be useful in certain circumstances.