Author Archives: Eleanor M. Lackman

Update – Three Music Industry Reform Bills to Watch: Congress Introduces Legislation to Modernize Music in the Digital Age

On September 18, 2018, the Senate unanimously approved the Music Modernization Act, now renamed the Orrin G. Hatch Music Modernization Act, in honor of the retiring Utah Senator – an avid songwriter who spearheaded the bill.  This approval follows its unanimous passing by the House of Representatives in April.  Due to changes made by the Senate, the bill will now return to the House for approval before it can be signed by President Trump to become law.  Public praise of this significant step has poured out from a variety of major industry players including the NMPA, the RIAA, BMI, ASCAP, the Recording Academy, and SoundExchange.  The bill’s supporters have uniformly expressed that such legislation is crucial in the fight for fairness for music creators and that it will also confer benefits on consumers and copyright holders.  While the precise details of the alterations that were made to the Act are not yet clear, many changes appear to have influenced by holdouts from satellite and digital broadcasting services, including a compromise proposal from SiriusXM to pay half of the performance royalties for pre-1972 recordings under the CLASSICS Act.  As of this writing, it is expected that the bill will pass within the next few weeks, marking the first music licensing reform in over two decades. Continue reading

Three Music Industry Reform Bills to Watch: Congress Introduces Legislation to Modernize Music in the Digital Age

In a rare show of bipartisanship, Congress has proposed legislation that would financially benefit music creators who have either been overlooked in the past or are compensated on inconsistent terms.  Three bills –  the Fair Play, Fair Pay Act, the CLASSICS Act and the Music Modernization Act (all of which have bipartisan support) – were introduced in 2017 to reform Copyright laws and bring balance to the music industry.  As copyright reform has gained much traction in the past month, with a House Judiciary field hearing that took place in New York City on January 26, 2018, the three bills represent hope for change and needed updates in the digital music era.

Fair Play, Fair Pay Act

The Fair Play, Fair Pay Act, introduced March 2017, aims to extend a copyright owner’s rights to include the right to perform a sound recording publicly by means of any transmission – including traditional broadcast.  Currently, the Copyright Act affords the owners of musical compositions (the underlying music and lyrics) the right to perform a sound recording publicly, but only provides a much narrower public performance right for owners of sound recordings, limited to performance by means of digital transmissions by cable, satellite, and internet radio stations.  For instance, when an internet radio station such as Pandora streams a song, the artist and record label receive a statutory royalty for the performance of the sound recording, but when that same song is played on terrestrial AM/FM radio, the artist and record label are not compensated (in both scenarios the writer and/or publisher of the song is paid for the performance of the composition, though).  The radio industry has consistently defended the lack of monetary compensation for radio air play, citing the promotional value that radio uniquely brings an artist and record label. Continue reading

Band Not Banned: High Court Finds Unconstitutional Trademark Office’s Basis for Refusal to Register THE SLANTS Trademark

On June 19, 2017, the U.S. Supreme Court handed down its much-anticipated decision in Matal v. Tam, 582 U.S. __ (2017), issuing a ruling that clarifies that the door is open to trademark registration to a new category of trademarks:  trademarks that may disparage others.

The facts that the Court looked at are relatively simple:  The Slants, a dance-rock band whose members are Asian-Americans, sought to register their name as a trademark.  Although the band argued that they chose the name because they were looking to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity, the U.S. Patent and Trademark Office (USPTO) refused to register the mark THE SLANTS on the ground that it was a derogatory or offensive term.  An appeal to the USPTO’s Trademark Trial and Appeal Board failed on similar grounds.  But a further appeal to the U.S. Court of Appeals for the Federal Circuit resulted in this case finding itself before the U.S. Supreme Court:  the majority of the Federal Circuit, sitting en banc, found that the USPTO’s basis to refuse to register THE SLANTS was unconstitutional. Continue reading

CDAS Files Amicus Brief in Kirtsaeng v. John Wiley & Sons (“Kirtsaeng II”)

Yesterday, CDAS submitted an amicus brief in the U.S. Supreme Court in support of the respondent in the case captioned Kirtsaeng v. John Wiley & Sons (“Kirtsaeng II”), which will examine the proper standard for fee awards under the Copyright Act. The brief, filed on behalf of the Copyright Alliance, argues that when determining whether to award attorneys fees to a prevailing party, courts should duly consider each of the interrelated Fogerty factors without placing dispositive weight on any single factor.

To view the full brief, please see the PDF below.

CDAS Files Amicus Brief in Kirtsaeng v. John Wiley & Sons

CDAS Files Amicus Brief in Fox Television Stations Inc. v. FilmOn X

Yesterday, CDAS submitted an amicus brief in a high-profile case involving the distribution of television programming over the Internet.  The brief, on behalf of the Copyright Alliance, was filed in the Ninth Circuit Court of Appeals in support of the appellants in the case captioned Fox Television Stations Inc. v. FilmOn X.  This is the second amicus brief that CDAS’s litigation team has submitted this week, with the other coming two days prior in support of a petition to the U.S. Supreme Court for certiorari in the Google Books case.

To view the full brief, please see the PDF below.

CDAS Files Amicus Brief in Fox Television Stations Inc. v. FilmOn X

 

CDAS FILES AMICUS BRIEF IN AUTHORS GUILD ET AL. V. GOOGLE, INC.

CDAS attorneys Nancy E. Wolff, Eleanor M. Lackman, Alex Gigante, and Brittany L. Kaplan filed an Amicus Curiae brief on behalf of the Text and Academic Authors Association; Western Writers of America, Inc.; The National Association of Science Writers, Inc.; and The Dramatists Guild in The Authors Guild et al. v. Google, Inc.

The brief supports the position of Petitioners The Authors Guild, arguing that the Second Circuit erred in holding that the Google Books project constitutes fair use. To view the full brief, please see the PDF below.

CDAS FILES AMICUS BRIEF IN AUTHORS GUILD ET AL. V. GOOGLE, INC

Shifting Injunction Standards in Copyright, Trademark Cases

Note: This blog is cross-posted from Law360.com with permission from Portfolio Media, Inc.

For decades, obtaining an injunction in a copyright or trademark case was simple: Show success on the merits (or likely success on the merits, at the preliminary injunction stage), and injunctive relief was usually automatically yours. Then, in 2006, the U.S. Supreme Court issued a ruling in a patent case called eBay Inc. v. MercExchange LLC, which upended the standard for obtaining injunctive relief in patent cases. Around 2010, appellate courts began to apply eBay to copyright cases; the past few months have seen the first instances of appellate courts’ application of eBay to cases under the Lanham Act.

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Getting a Handle on the New Generic Top-Level Domains: Strategies for Brand Protection in the Era of New gTLDs

After years of intense discussion and debate, the new generic top-level domain names (known as gTLDs) are here.  And they have been popular:  when .club went live on May 7, 2014, over 32,000 domain names ending in .club sold in the first 24 hours, and nearly 30,000 more were sold over the next three weeks.

Whether these new names will have any staying power remains to be seen, but what is clear is that the new gTLDs can create new challenges for brand owners, and new solutions for cybersquatting problems are being put to the test.  This post will provide an overview and update on the new gTLDs and discuss ways in which brand owners can approach and manage rights enforcement as new domains continue to roll out. Continue reading

Symposium: Preferring substance over form and nature over manner, Supreme Court finds that Aereo runs afoul of the purposes of the Copyright Act

CDAS partner Eleanor M. Lackman was featured as a guest writer for the Supreme Court of the United States Blog. Her post, “Symposium: Preferring substance over form and nature over manner, Supreme court finds that Aereo runs afoul of the purposes of the Copyright Act,” can be found below and on SCOTUSblog.com. Continue reading

How And Why Aereo Got To The Supreme Court

Note: This blog is cross-posted from Law360.com with permission from Portfolio Media, Inc.

This spring, the U.S. Supreme Court will hear arguments in a case that could have significant impacts on several segments of the television industry. While it may seem unusual that a dispute centered on dime-sized antennas would capture the attention of the high court, the case captioned American Broadcasting Companies Inc. v. Aereo Inc., on certiorari from the Court of Appeals for the Second Circuit, sits in the context of a half-dozen pending litigations across the country; it also tests both the boundaries of a Second Circuit decision that the court refused to hear five years ago, and the language that Congress drafted over 35 years ago. Continue reading