June 30th, 2011
For the next month, the six artists in residence at the Textile Arts Center in Brooklyn will be showing their work, prepared over the last six months through their residencies. Among them, my dear friend and collaborator Denise Maroney will present the “first burka show in NYC.” Denise has been studying and creating burkas as both fashion items and symbols throughout her residency. Whatever your take on the controversial garment, it should be an interesting and conversation-provoking exhibit. Details below.
June 30th, 2011
Back in April, Christian Leboutin slapped Yves Saint Laurent with a $1 million + lawsuit for trademark infringement, claiming that a pair of 2011 YSL shoes with a red sole violated Leboutin’s trademarked red soled shoe style and creates a likelihood of confusion in the marketplace. Most recently, YSL backfired with a claim that Leboutin had fraudulently trademarked the red sole in an attempt to monopolize that style in the shoe industry, a style that dates back to 18th century Europe as well as The Wizard of Oz. Trademark infringement suits are general fact intensive. One interesting fact of the case is that the YSL 2011 contained shoes with green soles, blue soles, red soles, etc. The case will likely be settled, as these high profile situations often are, but it does bring up questions as to what extent fashion designers can use trademark protection to claim exclusive use over a color.
The Black Keys (love them, by the way!) filed a copyright infringement lawsuit against a bank and advertising agency, claiming the defendants used the song “Tighten Up” without permission.
Dish Network has announced it has obtained a $25 million award and permanent injunction against nFusionOnline.com and affiliates for pirating its satellite television.
Snooki has lost her license and potentially faces a civil lawsuit in Italy for crashing her car into the police.
Gail Dosik, who has run a Greenwich Village bakery called ”One Tough Cookie” since 2005, is suing Scripps Network over the Food Network‘s forthcoming baking reality show, Tough Cookies, arguing that Food Network’s new show is likely to confuse consumers.
A California judge has ruled that celebrities who walk down the red carpet at an Hollywood event imply their consent to the use of their likeness in photographs. The ruling dismisses a class action lawsuit brought by Shirley Jones, star of the TV series The Partridge Family.
A day before scheduled to go to trial, Dr. Dre settled a lawsuit with his former record label WIDEawake Death Row Records over damages from unauthorized online sales of his album “The Chronic”.
Joan Jett and Cherie Currie, of the 1970s pop-punk group The Runaways, filed suit seeking to enjoin distribution of a 36-track album, Take It or Leave It, which features contemporary groups like The Donnas, Peaches and Dandy Warhols covering classic Runaways material such as “Cherry Bomb.” The pair claim that the release violates their right of publicity, using their likenesses to market the album without their permission. Generally, no permission is needed to record cover songs, as there is a compulsory mechanical license outlined in the Copyright Act with set royalty rates.
Warner Bros. settled the lawsuit with tattoo artist S. Victor Whitmill. Whitmill designed Mike Tyson’s famous face tattoo, and sued Warner Bros. over a similar version used in The Hangover 2 on Ed Helms face. Whitmill was denied an injunction to stop the theatrical release of the film, and Warner Bros. had said that if the case did not settle, it would digital modify the tattoo image for the video release of the film. Details of the settlement were not disclosed.
NBC prevailed in a lawsuit brought by writer Mark Gable, who claimed that the network stole a screenplay to create the hit series My Name is Earl.
The U.S. Supreme Court declined to review a case brought by the heirs of John Steinbeck to regain control of the author’s books by using of the Copyright Act’s termination provisions.
Hip hop artist Lil Wayne has been sued three times in one week over one album, Tha Carter III. In two of the lawsuits, separate producers are seeking unpaid royalties. The other lawsuit involves an illegal sampling claim by Bridgeport Music, the publisher that controls rights to many George Clinton & Parliament Funkadelic songs.
Viacom is suing Cablevision over Cablevision’s distribution of its channels including MTV, Comedy Central, and Nickelodeon on tablet devices like the iPad, claiming that such streaming constitutes a breach of contract and copyright infringement.
The Winklevoss twins dropped their 9th Circuit (California) lawsuit against Facebook related to the social networking site’s creation, reportedly accepting a settlement that was worth $65 million when they agreed to it in 2008; however, the next they day filed another suit against Facebook in Masachusetts federal court, seeking further discovery to support their claim that Facebook “intentionally or inadvertently suppressed evidence” during the 2008 settlement negotiations over whether Zuckerberg stole their business idea.
Rapper 50 Cent sued Internet advertising company Traffix Inc. for using his image without permission in the graphic “Shoot the Rapper” ad, which he says promotes violence and threatens his safety.
June 29th, 2011
Myspace was sold to Specific Media this morning for $35 million. The pricetag is a huge hit for Newscorp, which acquired the company in 2005 for $580 million. Among the consequences of the sale are massive layoffs, including a two month phase out of Myspace CEO Mike Jones.
Here’s the official press release:
SPECIFIC MEDIA ACQUIRES MYSPACE FROM NEWS CORPORATION
Los Angeles, Calif. — June 29, 2011 – Specific Media, a digital media company, today announced it has acquired Myspace from News Corporation. As part of the agreement, News Corporation will take a minority equity stake in Specific Media. Additional terms of the agreement are confidential and will not be disclosed.
“Myspace is a recognized leader that has pioneered the social media space. The company has transformed the ways in which audiences discover, consume and engage with content online,” said Tim Vanderhook, Specific Media CEO. “There are many synergies between our companies as we are both focused on enhancing digital media experiences by fueling connections with relevance and interest. We look forward to combining our platforms to drive the next generation of digital innovation.”
Specific Media is an innovative global interactive media company that enables advertisers to connect with consumers in meaningful, impactful and relevant ways. Founded in 1999 by brothers Tim, Chris and Russell Vanderhook, Specific Media is currently headquartered in Irvine, CA and operates offices around the world.
Myspace, Inc. is a leading social entertainment destination powered by the passions of fans. Aimed at a Gen Y audience, Myspace drives social interaction by providing a highly personalized experience around entertainment and connecting people to the music, celebrities, TV, movies, and games that they love. These entertainment experiences are available through multiple platforms, including online, mobile devices, and offline events.
Myspace is also the home of Myspace Music, which offers an ever-growing catalogue of freely streamable audio and video content to users and provides major, independent, and unsigned artists alike with the tools to reach new audiences. The company is headquartered in Beverly Hills, CA. http://www.myspace.com/pressroom/
About Specific Media
Specific Media is a digital media company driving viewership for content owners, engagement for brands and relevance for consumers. With capabilities spanning original programming, cross-channel distribution and addressable advertising, the company connects audiences, content and brands, adding meaning to each touch-point. As people discover new ways to consume content, Specific Media creates impactful media experiences no matter where they are.
June 27th, 2011
In Brown v. EMA, a decision released today, the Supreme Court struck down a 2005 California law that limited minors’ rights to buy video games. The law, which never took effect due to constitutional challenges, prohibited the sale or rental of “violent video games” to minors and required certain age labels on violent games’ packaging. Violations of the law could result in fines up to $1,000. Parents could still buy the games for their children.
The 7-2 decision ruled that video games qualify for First Amendment protection. Certain forms of speech are unprotected by the Constitution (e.g., obscenity, incitement and fighting words), but new categories of unprotected speech cannot be added to this list just because the legislature finds it harmful to society. The obscenity exception did not apply in this case because obscenity applies to only depictions of sexual content, not just shocking content. The California law did not adjust the boundaries of an already existing category of unprotected speech (as in Ginsberg v. New York), but sought to create an entirely new category of “content-based regulation that is permissible only for speech directed at children.” The Court found the law’s aim “unprecedented and mistaken.” Additionally, there is no tradition in the US to restrict children’s access to depictions of violence, further undermining California’s claims that the law is constitutional.
As the California law is a content-based restriction, the Court applied the strict scrutiny test, where the law will stand only if it is justified by a compelling government interest and is narrowly drawn to serve that interest. In this case, California did not meet this high burden.
California could not show a direct causal link between violent video games and harm to minors. Psychological studies presented did not indicate that exposure to violent video games effect minors behavior any different from other violent media, upon which California does not impose restrictions. Additionally, the voluntary rating system adopted by the video game industry already allows parents to adequately restrict their children’s access to violent games. The Court found the law both underinclusive in the fast that not all violent media was restricted and overinclusive in the sense that children whose parents allow them to play violent games would be denied the ability to do so.
Justice Alito and Chief Justice Roberts concurred in the judgment that the law was not sufficiently tailored to meet strict scrutiny but disagreed with the majority’s approach to the case, noting that the Court should “make every effort to understand the new technology” rather than “jump to the conclusion that new technology is fundamentally the same as some older things” that are familiar.
Justice Thomas’s dissented, finding the law to not be facially unconstitutional because freedom of speech “does not include a right to speak to minors without going through the minors’ parents or guardians.”
Justice Breyer also dissented: “California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help.” Breyer’s dissent also raises some rational flaws with the majority’s reasoning: “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
Read the whole 92 page decision for yourself here.
June 23rd, 2011
Last night, at the gorgeous downtown BMI offices, I attended the Women in Music panel Sync It Up! Maximizing Opportunities & Revenue from Music Placement in Film, TV, Advertising & Gaming.
The panelists, ranging from music supervisors, to publishers, to songpluggers, shared tips and details on how to get music placed in Film, TV, ads and video games. The standing room-only event was filled with a wide variety of creatives, and the panelists touched up different approaches to take whether you are an instrumental composer or songwriter. The standout for me was Charlie Feldman, VP of BMI Writer Publisher Relations. His charming personality, sense of humor and wit created a conversational and intimate tone for the event. He also wasn’t shy to use BMI’s “real numbers” in his answers. Hearing those specific references as well as personal anecdotes definitely made this panel come together.
So how do you get your music placed? The magic answer is that there is no one way. Some panelists recommended reaching out to the top music supervisors, others suggesting seeking out the top NYU film students and forming early relationships with them (a la Steven Spielberg and John Williams). Jessica Sobhraf of sirgroovy.com and Rose Adkins of Audio Network Americas also shed light on various online resources that artists and companies use to get music placements and clearances.
There were some across the board lessons though for writers:
1. (And this is something I’m always explaining to my clients. It is so so so important). Get your rights in order. The easier it is for someone to license your song, the more likely they will do it. Unless you have a publishing deal, control your publishing. If you own the master, control the master. Admin deals are great, but get everything in writing. If it’s a co-written song, sign a writers agreement with the other writers so it’s clear what the ownership shares are and the approval process for licenses. You don’t want the licensee to have to track down permissions from a ton of people. Most likely if you’re an emerging artist, as soon as they hit some difficulty, they’ll quickly move on to another song.
2. Online media offers tons of placement opportunities. Between online games to magazines to ads, music placements are increasingly desired in online content. These placements may pay less but they’re usually last minute and a fast turnaround.
3. Public performance pays. If you’re being placed in a television show or movie (apparently internationally distributed films pay BIG public performance royalties, according to Charlie Feldman), you should receive royalties for ever airing of that show or movie. Make sure you are affiliated with a performing rights organization (BMI, ASCAP and SESAC are the major US players) and be sure to keep your compositions registered.
Towards the end of the panel, a songwriter asked about legal fees, that she can’t afford to hire a lawyer for $250 an hour to do these licenses. The panelists responded by saying there were books and forms she could look at to draft her own. I want to add that there are many services and resources that offer licensing services for less than a regular lawyer rate. Part of my practice is music licensing, clearance, and rights administration. I can speak for myself, and I’m sure this applies to many other lawyers and rights clearance professionals, when I say that I completely understand that independent musicians can’t pay massive fees for this type of work. Each case is individual and licensing services can often be arranged at a reduced rate.
Overall, the panel was a definite success! BMI is hosting a series of WIM events this summer, this was the second of the bunch. I’ll be sure to announce future events as I hear of them.
June 21st, 2011
After Citigroup’s seizure in February from Terra Firma, EMI has announced is it considering “potential strategic alternatives, including a possible sale, recapitalization or initial public offering.”
NY Times article with more details here.
June 21st, 2011
Preface: I first read about this yesterday morning and have been singing “Friday” to myself ever since. I’m praying this song never is newsworthy again because it takes me days to get it out of my head.
The YouTube hit video “Friday” by Rebecca Black is currently disabled due to a pending lawsuit between Rebecca Black and the song’s producers/writers Ark Music Factory. Currently in its place reads: “This video is no longer available due to a copyright claim by Rebecca Black. Sorry about that.”
If you haven’t heard of “Friday” or Rebecca Black: (1) you’re lucky and (2) you’ve missed out on a pretty major internet sensation. Originally posted on YouTube on March 14, 2011, the video amassed over 167 million views in a mere three months. The most interesting thing though is that most of these viewers vehemently hate the song. It had over 3.1 million dislikes on YouTube when it was taken down. But people keep watching it for some reason.
The video is still available (most likely unofficially) on other websites, although it seems likely that these sites may receive take down notices soon.
The lawsuit mainly centers on the issue of who owns the song. Black’s mother and representatives claim that the $4,000 fee paid to produce the song involved the agreement that Black would have master and composition ownership rights. Ark claims that they own the composition, arguing that their contract with Black was not effective because it was not court-approved. New York law requires court approval over entertainment contracts involving minors; however, the process of gaining such approval can be costly and time consuming. The procedure is in place largely to protect the adult party from having the minor later revoke the contract by claiming incapacity because of infancy. As Ark Music Factory as a party is not considered a minor, there argument about the lack of court approval seems weak, considering that Rebecca Black is not the party trying to get out of the written agreement. As I haven’t seen the terms of the actually contract, it’s hard to know what was actually agreed upon, as the parties’ public statements have been conflicting.
It is very likely that this case will settle and even more likely that the “Friday” video will be back on YouTube and bigger than ever.
June 20th, 2011
The ARChive of Contemporary Music is a New York non-profit that collects and preserves sound recordings. The collection currently holds over 2 million sound recordings, making it the largest popular music collection in the US.
This week, the ARChive is having a huge sale with over 20,000 items being offered.
Here are the details:
June 19th, 2011
“Sync it up! Maximizing Opportunities and Revenue from Music Placement in Film, TV, Advertising, and Gaming”
Join Women in Music (WIM) on June 22nd, 2011 at 6:30 pm for an informative discussion on the placement of music in visual media such as film, tv, gaming and advertising and on optimizing license revenue streams . Hear and learn from an expert panel comprised of top executives and creators active in the current music placement and licensing world. Moderated by Charlie Feldman (VP, Writer-Publisher Relations – BMI), panelists include Jessica Sobhraj (Co-Founder & Senior VP of Production – SirGroovy.com), Brooke Primont (VP, Music Placement & Licensing – Razor & Tie), Rose Adkins (VP, Business Development – Audio Network US), Janice Ginsberg (Music Supervisor & Film/TV Producer and Consultant), and Ali “Dee” Theodore (President – DeeTown Entertainment). This panel will, among other things, explore music placement strategies utilized by top executives in the field, online tools that develop and facilitate opportunities, and license deal points that maximize revenue. The event will be held at BMI, 7 World Trade Center, which is at 250 Greenwich Street, New York, NY.
As an organization rooted in the mission to advance music industry professionals through education, support, empowerment, and recognition, WIM is thrilled to present this type of quality programming via the generous support of their host BMI (www.BMI.com). WIM is a dynamic group working to support, cultivate, and recognize the talents of women in our field. Through panels, seminars, showcases, achievement awards, and youth initiatives, WIM aims to strengthen community ties while providing camaraderie and tools for advancement to hundreds of members at all stages of their careers.
June 16th, 2011
The US Tax Court is currently considering the issue of whether documentary filmmaking constitutes as “for-profit” activity, under the meaning of tax law. If the documentaries not deemed to be for-profit, the film companies can not claim tax deductions for their business expenses. This is a potentially great financial burden for documentary filmmakers.
The issue turns on the purpose of creating documentary films, whether to “educate and expose” or turn a profit.
NY Times covers the story further here.