January’s Notable Hirings, Firings & Promotions

January 31st, 2012

Howard Stringer  is losing his ‘President’ title at Sony Corp., although he will remain Chairman and CEO of the company.

Rap super-agent Cara Lewis moved to CAA from William Morris, taking client Kanye West with her.

Felix Perez is now GM of Univision Radio in New York.

Dennis Kooker is now president of global digital business and US sales at Sony Music Entertainment, replacing Thomas Hesse.

Jim Roppo was named EVP of Marketing at Universal Republic.

Long-time Wind-up Records EVP of Promotion Shanna Fischer is leaving the label after 16 years. Drew Hauser is moving up to SVP of Promotion and heading the department.

Deborah Hyacinth is now Vice President of International Digital Marketing at Universal Music Group.

Rocawear, the clothing line started by Jay Z and Damon Dash, laid off 28 employees, about half of its staff, earlier this month.

Mark Shimmel has just been named COO of Epic Records.

John Sykes, former president of VH1, has been named president of Clear Channel Entertainment Enterprises.

eMusic laid off 9 staff members.

Former Warner Music International executive John Reid is now President of Concerts in Europe at Live Nation.

Epic Records hired Lynn Hazan as GM and CFO.

David Sharpe (no relation) moved from Island Records to the position of COO at Universal Music UK.

San Diego radio station afternoon drive host Garrett Capone is joining Crush Management as VP of Radio Promotions.

La-la-lawsuits: A look back on January’s finest litigious moments

January 30th, 2012

EMI is suing MP3 reselling startup ReDigi.

More EMI lawsuits.. The company (via the Irish Music Rights Association) has now sued the entire country of Ireland in a High Court action for not doing enough to require ISPs to block websites that are engaging in piracy.

The Velvet Underground has sued the foundation that manages the legacy of Andy Warhol arguing that the artist of their iconic ‘banana’ album cover artwork has no copyright or trademark ownership over the image.

PacketVideo and Spotify have settled the lawsuit brought by PacketVideo, alleging that Spotify infringed its patent relating to streaming music from a central source.  Details of the settlement have not been disclosed.

Former Disney executive VP Glen Lajeski filed a lawsuit against the studio alleging that his contract was breached when the company fired him last June.  Lajeski was let go purportedly without any cause and without the opportunity to cure.  His employment contract was not due to expire until January 1, 2013.

SCOTUS Holds §104A of Copyright Act Constitutional

January 20th, 2012

The Supreme Court of the United States published a decision yesterday regarding the constitutionality of section 104A of the US Copyright Act.  In order to comply with the Berne Convention, 17 USC 104A was revised in 1994 to restore the copyrights in foreign works that were previously not protected in the United States because they did not meet the US formalities of copyright protection (such as copyright renewal or proper copyright notice) or because of a lack of an international treaty between the US and the work’s country of origin.  As a general rule (with exceptions, of course), the works had to be protected in their country of origin as of Jan. 1, 1996, but if they were, they were automatically granted protection in the US, “restoring” them to a protected state and removing them from the public domain.  Controversy arose because one year following the “restoration,” royalty payments and derivative work restrictions would be imposed on anyone using the works, even if their use originated before the restoration of copyright.  In Golan v. Gonzales, the section was challenged as a violation of the Copyright and Patent clause (Article I, §8, Clause 8) as well as the First and Fifth Amendments of the Constitution.  In a 6-2 vote, the majority opinion by Justice Ginsberg found that section 104A, as amended by section 514 of the Uruguay Round Agreement Act in 1994, is constitutional and did not exceed Congress’ authority under the Copyright Clause.

The Supreme Court syllabus (or read the full 69 page decision here):

OCTOBER TERM, 2011 1

Syllabus

SUPREME COURT OF THE UNITED STATES

Syllabus

GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 10–545. Argued October 5, 2011—Decided January 18, 2012

The Berne Convention for the Protection of Literary and Artistic Works (Berne), which took effect in 1886, is the principal accord governing international copyright relations. Berne’s 164 member states agree to provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own. Of central importance in this case, Article 18 of Berne requires countries to protect the works of other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. A different system of transnational copyright protection long prevailed in this country. Throughout most of the 20th century, the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. Despite Article 18, when the United States joined Berne in 1989, it did not protect any foreign works lodged in the U. S. public domain, many of them works never protected here. In 1994, howev- er, the Agreement on Trade-Related Aspects of Intellectual Property Rights mandated implementation of Berne’s first 21 articles, on pain of enforcement by the World Trade Organization.

In response, Congress applied the term of protection available to U. S. works to preexisting works from Berne member countries. Sec- tion 514 of the Uruguay Round Agreements Act (URAA) grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had not complied with certain U. S. statutory formalities. Works encompassed by §514 are granted the protection they would have enjoyed had the United States main- tained copyright relations with the author’s country or removed formalities incompatible with Berne. As a consequence of the barriers to U. S. copyright protection prior to §514’s enactment, foreign works “restored” to protection by the measure had entered the public do- main in this country. To cushion the impact of their placement in protected status, §514 provides ameliorating accommodations for parties who had exploited affected works before the URAA was enacted.

Petitioners are orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They maintain that Congress, in passing §514, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations. The District Court granted the Attorney General’s motion for summary judgment. Affirming in part, the Tenth Circuit agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendment inspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand, the District Court granted summary judgment to petitioners on the First Amendment claim, holding that §514’s constriction of the public domain was not justified by any of the asserted federal interests. The Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad.

Held:

1. Section 514 does not exceed Congress’ authority under the Copy- right Clause. Pp. 13–23.

(a) The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Eldred is largely dispositive of petitioners’ claim that the Clause’s confinement of a copyright’s lifespan to a “limited Tim[e]” prevents the removal of works from the public domain. In Eldred, the Court upheld the Cop- yright Term Extension Act (CTEA), which extended, by 20 years, the terms of existing copyrights. The text of the Copyright Clause, the Court observed, contains no “command that a time prescription, once set, becomes forever ‘fixed’ or ‘inalterable,’ ” and the Court declined to infer any such command. 537 U. S., at 199. The construction peti- tioners tender here is similarly infirm. The terms afforded works re- stored by §514 are no less “limited” than those the CTEA lengthened. Nor had the “limited Tim[e]” already passed for the works at issue here—many of them works formerly denied any U. S. copyright protection —for a period of exclusivity must begin before it may end. Pe- titioners also urge that the Government’s position would allow Congress to legislate perpetual copyright terms by instituting successive “limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case. In aligning the United States with other nations bound by Berne, Congress can hardly be charged with a design to move stealthily toward a perpetual copyright regime. Pp. 13–15.

(b) Historical practice corroborates the Court’s reading of the Copy right Clause to permit the protection of previously unprotected works. In the Copyright Act of 1790, the First Congress protected works that had been freely reproducible under State copyright laws. Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights and patents of works and inventions previously in the public domain. Congress has also passed generally applicable legislation granting copyrights and patents to works and inventions that had lost protection. Pp. 15–19.

(c) Petitioners also argue that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. Specifically, they claim that because §514 affects only works already created, it cannot meet the Clause’s objective. The creation of new works, however, is not the sole way Congress may promote “Science,” i.e., knowledge and learning. In Eldred, this Court rejected a nearly identical argument, concluding that the Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” 537 U. S., at 222. Nothing in the text or history of the Copyright Clause, moreover, confines the “Progress of Science” exclusively to “incentives for creation.” Historical evidence, congressional practice, and this Court’s decisions, in fact, suggest that inducing the dissemination of existing works is an appropriate means to promote science. Pp. 20–22.

(d) Considered against this backdrop, §514 falls comfortably within Congress’ Copyright Clause authority. Congress had reason to believe that a well-functioning international copyright system would encourage the dissemination of existing and future works. And tes- timony informed Congress that full compliance with Berne would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment in the creative process. This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause. Pp. 22–23.

2. The First Amendment does not inhibit the restoration authorized by §514. Pp. 23–32.

(a) The pathmarking Eldred decision is again instructive. There, the Court held that the CTEA’s enlargement of a copyright’s duration did not offend the First Amendment’s freedom of expression guaran- tee. Recognizing that some restriction on expression is the inherent and intended effect of every grant of copyright, the Court observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used, but also as an “engine of free expression.” 537 U. S., at 219. The “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense, moreover, serve as “built-in First Amendment accommodations.” Ibid. Given the speech-protective purposes and safeguards embraced by copyright law, there was no call for the heightened review sought in Eldred. The Court reaches the same conclusion here. Section 514 leaves undisturbed the idea/expression distinction and the fair use defense. Moreover, Congress adopted measures to ease the transition from a national scheme to an international copyright regime. Pp. 23–26.

(b) Petitioners claim that First Amendment interests of a higher order are at stake because they—unlike their Eldred counterparts— enjoyed “vested rights” in works that had already entered the public domain. Their contentions depend on an argument already consid- ered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain. Section 514, moreover, does not impose a blanket prohibition on public access. The question is whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works. By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published. Pp. 26–30.

609 F. 3d 1076, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion, in which ALITO, J., joined. KA- GAN, J., took no part in the consideration or decision of the case.

The Obama Administration Speaks Out Against SOPA

January 17th, 2012

The White House has released an official statement by Victoria Espinel, Aneesh Chopra, and Howard Schmid in response to petitions again SOPA and the E-Parasite Act.

Full text below:

Official White House Response to Stop the E-PARASITE Act. and 1 other petition

Combating Online Piracy while Protecting an Open and Innovative Internet

By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.

Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.  It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response.  We should never let criminals hide behind a hollow embrace of legitimate American values.

This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.

So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.

Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.

Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.

Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget

Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy

Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff

Event/MCLE: NYSBA Entertainment, Arts & Sports Law Section Annual Meeting

January 17th, 2012

Next week is the New York State Bar Association’s annual meeting.  On Monday, January 23rd, the Entertainment, Arts & Sports Law Section will be holding its meeting in conjunction with a 4-credit  MCLE.

The MCLE topics are:

NEW MODELS OF PUBLISHING: E-BOOKS, APPS, SELF-PUBLISHING AND OTHER CHALLENGES – This program will examine new developments in publishing that are challenging the accepted ways of doing business while also providing new revenue sources for both publishers and authors. Our panel will offer perspectives on digital rights and new distribution methods from the points of view of the publisher, literary agent and author. We will also discuss the impact of these developments on contract drafting and negotiations, rights licensing and other aspects of the publishing business.

CURRENT AND TRENDING TOPICS IN BRAND, FAMOUS PERSONALITY AND CHARACTER LICENSING: DEVELOPMENT TO BANKRUPTCY – This session will focus on two less discussed areas of licensing and intellectual property and trademark law: 1) the process of developing a brand and/or license platform for a celebrity, character, interactive property or existing corporate brand product from its initial negotiation from the owner of the underlying rights to licensee and retailer; and 2) the phenomenon of distressed brands, including the treatment of brands and accompanying licenses in bankruptcy, including the possible auction of that brand and licenses. Our experienced and distinguished panel will discuss real examples of both areas, giving the participant an understanding of the intricacies of developing and licensing nascent brands- both celebrity- or character- driven , as well as what occurs in bankruptcy situations- including the rudiments of an auction for different IP rights and the treatment of licenses of trademarks versus other intellectual property rights under U.S. bankruptcy laws.

Following the event, there will be a cocktail reception at UBS with live jazz music and a tour of the private art collection.

Registration information available here.

NYC Singing Course – Get on Stage and Sing!

January 11th, 2012

Coachella Full Lineup Announced

January 10th, 2012

The full lineup for the 2012 Coachella Valley Music & Arts Festival has been announced.  The festival will be held in April over two consecutive weekends – April 13 – 15 and April 20 – 22.  You’ll need to buy a separate 3-day pass for each weekend, the remaining tickets go for about $269 and will go on sale this Friday.  Dr. Dre will be closing out the festival.  Other headliners include Radiohead, The Black Keys, Bon Iver, M83, Miike Snow, Justice, Florence + the Machine, La Roux, Beirut & Girl Talk.