Marshawn Lynch to Trademark Catchphrase

Word of Seattle Seahawks running back Marshawn Lynch’s trademark application for the phrase, “I’m just here so I won’t get fired,” is drawing the attention of sports fans and IP nerds alike.

ESPN reported that Lynch filed trademark papers with the U.S Patent and Trademark Office last week to protect his – now – classic phrase. For those not privy to sports news, Lynch is known for his aversion towards interviews with the media, and he recited this phrase in response to over 20 questions during the SuperBowl XLIX press day. Earlier in the football season, the NFL fined Lynch $50K for avoiding the media.

Lynch is not the first celebrity to trademark a catchphrase or other quotables. Trademarking allows celebrities to use catchphrases for commercial purposes, along with other legal and business reasons.

Notable trademarking endeavors include Paris Hilton’s, “That’s Hot;” boxing announcer Michael Bugger’s “Let’s get to rumble;” Olympic gold medalist Ryan Lochte’s, “Jeah;” and, of course, Donald Trump’s “You’re fired.”

So what is a trademark? The U.S. Patent and Trademark Office defines a trademark as:

A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.

For more information about Trademarks, check out the U.S. Patent and Trademark Office’s Trademark Basics webpage.

Music Blogger or Thief: When Content Use Stops Being Fair

For a thorough understanding of copyright infringement and fair use, a nice conversation with a lawyer is on store.

The popularity of music fanzines dates back to the early 1960s. Since the good old days of classic rock, the amount of fanzines exploded and eventually went online. Today, fanzines come in many different forms, ranging from blogs to ezines (let’s just refer to them all as blogs and bloggers for brevity-sake).

Many underground artists embrace fanzines, welcoming the grass-roots platforms as a means of free publicity. Major labels, on the other hand, often browse blogs, social media sites and other online fanzines looking for infringing use of their artists’ music, photos and lyrics.

When news arose that record labels, the RIAA and other content owners were sending cease and desist letters to YouTube accounts, bloggers and website owners, many bloggers find it difficult to understand the legal ways to promote artists, review music and publish online fanzines.

Under the Digital Millennium Copyright Act, copyright holders can use a notification procedure to request an ISP to remove allegedly infringing material from a web page. The copyright holder will then send a “Cease and Desist” letter under the DMCA. Oftentimes, the blogger’s web host will also send the blogger a “Notice of Infringement” informing the blogger that they will lose access to their site if they do not remove the allegedly infringing material.

At this point the blogger can either comply and hope they are in the clear or not comply and risk criminal and monetary ramifications. For a music fan trying to indulge in his or her passion for music, this process is daunting, scary and a reason to give up on blogging. So when does fan and music sites’ use of content cross the line from fair use to copyright infringement?

The obvious answer is to only use content that the content owner explicitly gives or licenses to the bloggers, and content that the blogger owns (such as pictures taken at a live event). For bloggers receiving content from record labels and promoters, this is easy. With most bloggers, on the other hand, this is not the case.

As with the original print fanzines, most online fan sites and blogs come from the creative energies of music fans who do not have personal contact with the artists or the artists’ personal. Fair use under section 107 of the 1976 Copyright Act allows bloggers to use some portion of the copyrighted material to comment on an artist’s work.

Under the notion of fair use, a blogger can use copyrighted work without permission if the use is “transformative,” so that bloggers can make a new creation. This transformative use allows bloggers to parody, criticize and comment on the copyrighted work.

Determining fair use is tricky, with no clear-cut test. Courts have come up with a list of factors to consider when determining fair use under section 107 under the Copyright Act:

  • the purpose and character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion taken;
  • and the effect of the use upon the potential market.
  • Under the purpose and character factor, courts look to see how the potential infringer uses the copyrighted material. The nature of use factor looks to see if the copyrighted work is unpublished or published, with bloggers having a stringer fair use argument with the use of published works over unpublished works.
    The third factor, the amount and substantiality of the portion taken, is often the most difficult to prove. A court is most likely to find in favor of fair use with very small amounts of use, which is often why many promoters misleadingly nicknamed this factor the “seven second rule.”

    The final, most important, factor looks to see how the use of the copyrighted works affects the copyright holder’s ability to profit in any potential market, regardless if the use is not competing with the original work. This factor, however, needs not be misconstrued to include negative commentary on the copyrighted work (such as a bad album review).

    Fair use is complicated to understand, and really does need explanation from a legal expert to understand, but bloggers can continue writing about the music and artists they love without fear of crossing the line into copyright infringement.

    Cutting Out the Middle Man: Copyright Grant Terminations and the Repercussions of F.B.T. Productions vs. Aftremath

    An interesting issue plaguing record labels is the notion of copyright grant termination by recording artists and songwriters.  Although no copyrighted works have yet become eligible for grant termination, such grant terminations can possibly have huge implications on the record labels that depend on the sales of older sound recordings. Copyright grant terminations will cause record labels great hardship, forcing the labels to return ownership in musical compositions to their original creators.

    In typical music industry practices, songwriters and recording artists grant copyright ownership in musical compositions to record labels and music publishers in order to have their works manufactured and distributed.  Since the music industry depends on exploiting musical works, the party who owns the copyright interest in the musical composition has control over how works are used.  Accordingly, the copyright owner will be the primary party to profit from this exploitation.

    If recording artists and songwriters reclaim their grants, the artists and songwriters will have sole control over the music and record labels will no longer be able to profit from the musical works.  Since copyright ownership in a musical composition is the most valuable asset for record labels, copyright grant terminations will essentially cause record labels to lose the foundation on which the music industry stands.

    Under section 304(c) of the Copyright Act, the artists’ reclaim period begins in 2013 for copyrights assigned on or before January 1, 1978.  Section 304 of the Copyright Act gives artists and songwriters the inalienable right to terminate their pre-1978 copyright transfers 56 years after the date of transfer.   Under this section, “[t]ermination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later.”

    For post-1978 transfers, section 203 of the Copyright Act allows artists and song writers to terminate their copyright grants 35 years after the grant, providing a window that is “affected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant.”

    The right to terminate grants, however, does not apply to works made for hire.  Since works made for hire in the music industry are songs written and performed by “employees” of the record label, sole ownership belongs to the record label “employer.”  In 1999, record labels sought to have the House of Representatives amend the Copyright Act in order to have sound recordings classified as works made for hire, thereby bypassing the potential loss of copyright grants.

    Record labels claimed that since albums are compilations of individual sound recordings, albums fit within an exception under the Copyright Act.  Record label argued that, since sound recordings already fit within an exception under the Copyright Act, sound recordings should also be considered works made for hire.  Record labels, however, failed to persuade Congress to recognize sound recordings as works made for hire.

    Despite record labels attempt to maintain copyright transfers, several artists, such as the Eagles, have spoken openly about reclaiming their rights.  With artists like Steve Greenberg – who wrote, produced and performed the disco hit “Funkytown” under the stage name Lipps, Inc. – sending termination notices to record labels, it will only be a matter of time until record labels find themselves loosing valuable assets.

    The approaching copyright grant termination windows are also coming at time when older artists, who have not released albums in decades, are becoming more frustrated with the royalty rates they receive for the digital exploitation of their music. Since many of these artists have not renegotiated their contracts since the outbreak of the digital age, much debate and animosity has arisen over the formulations used to calculate the royalty rate for digital downloads.

    In March 2011, the US Supreme Court denied UMG’s petition to review the 9th Circuit Court of Appeals’ ruling in F.B.T. Productions vs. Aftermath Records (commonly referred to as the “Eminem-UMG/iTunes” case, even though Eminem and iTunes are not actually parties to the case), upholding the Court of Appeals decision. In the “Eminem-UMG” case, F.B.T. Productions, Eminem’s then production company, sued Universal Music Group arguing that digital downloads fell under the “master license” provision of the contract and not the “records sold” provision. Under the “master license” provision, F.B.T. gets a 50-50 split in profits for every digital download of Eminem’s music, rather than the 18.23% royalty rate for music sales under the “records sold” provision. In trial court, the jury found in favor of UMG, finding that digital downloads constituted a sale rather than a license.

    F.B.T. appealed the trial court’s decision, and the 9th Circuit Court of Appeals ruled in favor of the production company. According to the Court of Appeal’s decision, digital downloads are third-party licenses, not sales, and are therefore subject to the higher royalty rate.

    This decision has a great impact on artists signed to recording agreements that do not specifically address digital downloads. For artists signed to pre-digital age contracts, artists are potentially entitled to higher licensing royalty rates every time fans download their music.

    F.B.T.’s industry changing suit caught the attention of many older artists. On April 1, 2011, Rick James’ estate filled a class action suit against UMG, seeking the higher “license” royalty rates for James and other artists who may join the suit. The impact of this suit can potentially have massive financial ramifications on record labels.

    The tension between older musicians and record labels regarding the royalty rates that artists receive from digital downloads can further weaken the artist-label relationships. As artists can potentially receive millions in payouts for past downloads, artists will also have the incentive to terminate their original copyright grants in order to sign to more lucrative deals or to independently control the distribution of their music.

    Although the copyright grant termination will cause havoc for record labels that are already suffering from profit loss, copyright grant terminations can better help artists reach listeners.  With artists in (more) control of their recordings, artists can license their recordings more freely and at lower rates, as well as sell albums and downloads at lower prices. In turn, artists are happier with higher profit margins while retaining more control over the distribution of their music.

    P2P, Start Preaching to the Choruss

    Choruss holds itself out as a company that will create “a new business model for digital music.”  I agree.  Choruss embraces the fact that Peer-to-Peer networks are as vibrant as ever, and that the music industry needs to deal with it.

    In the past, record companies tried to control P2P.  With new media, any attempts to control file-sharing will go up in smoke as hackers and tech savvy individuals circumvent digital rights management technologies.  Choruss acknowledges this. The company aims to monetize the already existing P2P networks by setting up a system to will allow college students – the main users of P2P networks – to download music legally.

    Choruss will work with college campuses around the US, so that when college students download music from Lime Wire, Bit-Torrent, etc., the students  will not engage in illegal downloading.  The non-profit, non-governmental agency aims serve as a digital-rights clearing house that will set a de facto royalty rate for songwriters.  Thus, colleges will pay record companies a flat fee and college students can legally download songs from the record companies’ music catalog via P2P networks.

    As of now, a good number of major record labels have agreed to work with Choruss, at least on a trial basis.  Choruss will negotiate a flat rate that colleges will pay to the record companies, much like performance rights organizations (such as ASCAP, BMI, and SoundExchange).  This will allow record labels to worry less about illegal downloads, spend less time sending out Digital Millenium Copyright Act’s take-down notices, and focus less on prosecuting college students for copyright infringement.

    The costs that colleges will assume will probably come from fees charged to the students by the schools, and students will be able to use their current P2P software.  There will be no additional software for students to download,  nor are there any worries over whether colleges have obtained the proper license or whether students are infringing copyrights.

    Jim Griffin, founder of Choruss, has been making his rounds, speaking openly about Choruss’ services and addressing skeptics’ concern.  There are many skeptics who believe that Choruss will not work or will not solve record companies’ problems.  However, it is the only entity to come forward with a logical plan that will crack down on illegal downloading by college students.  Even if Choruss is not the best method, or is not problem free, it will at least serve as an intermediary until other services and solutions are created.