October’s Notable Hirings, Firings, Promotions & Mergers

October 31st, 2012

Jeff Castelaz was named President of Elektra Records, part of the Atlantic Records Group.

John Janick is now president and COO of Interscope Geffen A&M.

Michael S. Simon has been named president and CEO of Harry Fox Agency (HFA).

MediaNet  has just brought on longtime industry executive Larry Miller as its Executive Vice President and General Manager.

BBC Worldwide CEO John Smith is leaving the company after eight years. Tim Davie, current director of BBC Audio & Music, will take over the position.

Mel Karmazin is leaving his position as CEO of Sirius XM Radio.

La-la-lawsuits: A Look at October’s Most Litigious Moments

October 31st, 2012

The Ray Charles Foundation, the charitable organization that was bequeathed his money and assets, is being challenged by Charles’ children, who were for the most part left out of the will and are now demanding that the copyright grants of his songs to Warner/Chappell be terminated.  In effect, this would cut off royalty checks to the Foundation.  In March, the Foundation sued the children seeking declaration that their termination notices were invalid, relying on the argument that Charles’ music were works-made-for-hire and therefore, the children have no right to terminate anything.  A judge, though, came to the conclusion that the Foundation had no standing to sue (unlike Warner/Chappell who would have standing), but stated this issue would be different if the music was determined to not be works-made-for-hire.  So, earlier this month, the Foundation switched its position and is claiming just that: that Charles’ songs were not works-made-for-hire and this way, the Foundation has standing to assert an infringement claim against the children, but the judge isn’t sure yet whether it has standing to challenge termination rights.  The decision of this case has two heavy implications: 1.) If the judge allows the Foundation to have standing in the termination rights suit, this would open the door for various other entities to file suits for this purpose and 2.) whether the judge determines the songs are works-made-for-hire or not has a crucial impact on artists, labels, and publishers.

In April, two black men, Nathaniel Claybrooks and Christopher Johnson, had sued ABC in a Nashville federal court arguing that they were rejected because of their race from the starring role as the bachelor in ABC’s reality television show, “The Bachelor“.  However, the federal judge decided to dismiss this discrimination suit stating that the producers of “The Bachelor” have a First Amendment right to “control their creative content” however they wish.

CMG Worldwide, Inc. is suing Marlon Brando’s estate for allegedly backing out of an agreement between the two, which granted the use of Brando’s name , likeness, and image to Madonna’s 2012 World Tour for a fee of $5,000 per tour performance, including future distribution of  recordings of the performance.  Brando’s estate allegedly agreed orally and via e-mail to the terms of the license, but one week later demanded a fee of $20,000, not $5,000.  CMG is seeking promissory estoppel and a declaration that the contract is valid and enforceable against Brando’s estate.  The case recently has been removed to federal court.

The Association of American Publishers and Google announced a settlement agreement. The terms of the agreement allows “access to publishers’ in-copyright books and journals digitized by Google for its Google Library Project.  The case started in October 2005 when five publishers alleging copyright infringement against Google.  One of the basics of the settlement is that copyright holders may choose to remove their books or journals from the Google Library. Also, Google will still enter into individual agreements with US publishers for the use of the works in the Library Project.  This is a great step in achieving a more diverse array of books available digitally.

Stan Lee Media, a company that apparently owns the rights in Marvel characters, has sued Disney.  Stan Lee, who created many of the Marvel characters, allegedly assigned his rights in them to Stan Lee Media and also, assigned them to Marvel Enterprises one month later.  Disney then later acquired Marvel in 2009.  Now, Stan Lee Media alleges that they own the copyrights to all these characters that Disney has exploited in many of its films.  The case is still undecided.

VMG Salsoul, the copyright owner of the 1976 song “Love Break”, sued Madonna for illegally sampling the aforementioned song in Madonna’s hit, “Vogue”.  Robert “Shep” Pettibone, a co-defendant in the suit who worked with Madonna on the song, moved to dismiss claiming that if any copying was done, which he explicitly denies, it is de minimis and therefore, cannot be the basis for a copyright infringement suit.  No decision has been made quite yet.

A class action lawsuit has been filed against Live Nation Entertainment alleging that the company has used its monopoly over the event ticketing industry to cause customers to pay excessive amounts in surcharges and the like when they purchase tickets.  Add-on fees attached to ticket prices have existed for a long time, but the obvious lack of competition versus Live Nation has done nothing to help the cause for consumers who fight against these fees.  The class is seeking an injunction barring Live Nation from charging these excessive add-on fees and also, restitution under California unfair competition law.

Jay-Z and Beyonce lost the battle to trademark their 9-month old baby girl’s name, Blue Ivy.  A Boston events company, named Blue Ivy Events, won the trademark struggle after proving that they had been using the name consistently since 2009.  Apparently, the Carters wanted to trademark the name in order to plan for future baby apparel and product lines. Looks like they may have to just have another child.

Sam Lutfi, ex-manager of Britney Spears, has sued the former teen popstar alleging she defamed him in her 2008 book Through The Storm: A Real Story of Fame and Family in a Tabloid World and also, is seeking unpaid management fees.  The trial began on October 18 and already, little known information regarding Spears has leaked.  Apparently, Spears’ decline into “unhappiness” was sparked by the breakup with (newlywed) Justin Timberlake.  In money matters, Spears apparently earned a whopping $800,000 per month during the period of Lufti’s management (2007-2008).  Lufti is suing for his portion of 15% of that monthly figure, which amounts to $120,000 per month.  Finally, Spears’ most photographed breakdown in which she shaved her head, was allegedly done to circumvent drug tests, which if came back positive could have put the custody of her children at risk.  It looks like this trial may get messier as the days pass by.

Event: Noteworking Meetup Thursday Oct 25 @ Idle Hands

October 22nd, 2012

Join fellow Noteworking musicians and friends at Idle Hands on Thursday, October 25 from 7-9pm.

We will hear brief presentations from the Harry Fox Agency and Songtrust.

Happy hour will be extended to 9 pm for us – $5 draught craft beers, $5 well drinks, $2 off all other drinks.

RSVP and get more info here:
If you aren’t yet a member… Noteworking is a group of over 200 New York musicians and music-industry professionals who use digital tools for promotion, marketing, sales and collaboration. http://www.meetup.com/noteworking/

CMJ Event Guide

October 12th, 2012

It’s that time of year again- the CMJ 2012 Music Marathon takes over New York from October 16-20.  Below is a list of what we think are the “must-see” panels, events, and shows that are taking place throughout the week!  Remember, for access to the panels, you must register and get a badge.  For more information on registration or schedules, check out the official CMJ website here.

Monday, October 15

  • Conflict of Interest New York- 7pm at Rebel NYC.  Hosted by Andrew W.K. Performances by Savoir Adore, Team Spirit, Pacific Air, and The Hounds Below.  RSVP here.

Tuesday, October 16

  • PANEL- Unturned Stones: Don’t Leave Money on the Table- 2pm at NYU Kimmel Center, Room 802 Shorin. The panel discusses an artist’s available revenue streams and which are more lucrative than others.
  • Official CMJ College Radio Mixer- 4pm at Le Poisson Rouge.
  • What’s the Smack Launch Party- 5pm at Site/109.  Numerous DJs will be playing, including Sean Glass and Luke Jenner (of the Rapture).  Tickets here.
  • Women In Music and Music Managers Forum Industry Mixer- 6-8pm at Bowery Electric.  Network with, learn from, and meet music managers.
  • The Outlet Collective’s CMJ Kick-Off Party- 3pm-2am at Bowery Electric. Performances by The Next Great American Novelist, I Am Love, Aly Tadros, Heyward Howkins, Lisa Jaeggi, Matt Simons, Wyatt, Sami.the.Great, Nightmare River Band, The Young Things, XNY, The Phuss, and Spacecamp.  For more information, click here.

Wednesday, October 17

  • PANEL- Becoming an Artist: Working Backwards From the Beginning- 11am at NYU Kimmel Center, Room 406.  Advice to artists from trusted professionals in the industry will be given.
  • PANEL- CMJ Fireside Chat: Tim Westergren and Matt Pinfield on the Future of Radio and the Music Industry- 12:30pm at the NYU Kimmel Center, 10th Floor Rosenthal.  Pandora Founder and Chief Strategy Officer Tim Westergren discusses with Matt Pinfield their views on the industry.
  • PANEL- Career Counseling Meetings: Artist Management- 2pm at NYU Kimmel Center, Room 909.  Maryelizabeth Carter, owner of The Underground Management and amazing tweeter, and Seth Kallen, manager at MCT Management, are just two of the professionals running this event.
  • Hype Machine Handpicked Party- 6pm at Brooklyn Bowl.  Performances by The Virgins, The Neighborhood Indians, Sua, Jjamz, Goldroom.  RSVP here.
  • Moodswing360 Annual CMJ Showcase 4.0- 8pm at The Studio at Webster Hall. Performances by Nina Sky, Maluca, Anjulie, Lady Starlight, Roxy Cottontail, Chippy Nonstop, and Jane Bang.  Tickets here.
  • Sneak Attack Media- 1pm at Bowery Electric.  Upstairs is the Music: Tech Meet Up and downstairs are performances by  Wojcik, Clementine & the Galaxy, The Tall Pines, Magmana, Ghxst, Dynasty Electric, and Psychobuildings.  DJ sets featuring Lloydski and MNDR. RSVP here.

Thursday, October 18

  • CMJ College Radio Awards- 4pm.  Anyone with a CMJ 2012 Badge can vote!
  • Official College Day Afterparty- 6pm at Solas.
  • PANEL- Real Breakdown Of the Branded Placement- 12:30pm at NYU Kimmel Center, Room 802 Shorin.  As more and more artists are realizing branded placements are a source of major income, this panel will discuss the ins and outs of one.
  • PANEL­- Replacing the Record Label- 2pm at NYU Kimmel Center, Room 802, Shorin.  This panel discusses how to be a successful artist without a record label.
  • Popular Recordings & MCT Management- 3:30pm at Bowery Electric.  Performances by The Ambassadors and Savoir Adore.  Information here.
  • CMJ Party- 7pm at Le Poisson Rouge.  Performances by Blackbird Blackbird, client Rioux, Rimar, Maria Minerva, AIMES, and Heathered Pearls.  Tickets here.
  • Vitalic Noise Launch Party- at 9pm at The DL.  Performances by Miami Horror, Goldroom, Viceroy, Flume, and Rufus. RSVP here.
  • CMJ Party- 6pm at Bowery Ballroom.  Performances by MNDR, MD MR, Deap Valley, IO Echo, Sky Ferreira, and Gabriel Bruce.  Tickets here.
  • The Walkmen- 8pm at Terminal 5.  Dum Dum Girls and Daughter open.  Tickets here.
  • BMI Showcase- 2pm-8pm at Rockwood Music Hall.  Performances by Grace Weber, Wild cub, Clementine and the Galaxy, Blondfire, and Beast Patrol. RSVP here.
  • CMJ Official Showcase- at 7pm at Spike Hill.  Performances by client Beca, Slowdance, MIracles of Modern Science, Alyson Greenfield, Sorne, and Hard Nips.  Tickets here.

Friday, October 19

  • PANEL- Protecting Yourself In a Wind-Up- 2:40pm at NYU Kimmel Center 10th Floor, Rosenthal.  This panel discusses the necessary steps when your business unfortunately fails.
  • PANEL- Beyond The Copyright Claim; Using All Your Ammunition- 3:50mp at NYU Kimmel Center 10th Floor, Rosenthal.  This panel discusses all aspects of IP law that may help a rights holder when someone infringes upon those exclusive rights.
  • Planetary Group CMJ Showcase- 12pm-6pm at Pianos.  Upstairs performances by Blessed Feathers, Dikta, Elephant Stone, Skipping Girl Vinegar, Tim Chaisson, The Trouble with Templeton.  Downstairs performances by Hot Panda, The Intelligence, The Orwells, Rah Rah, San Cisco, Turbo Fruits, Twerps.  RSVP here.
  • Windish Agency CMJ Showcase- 8pm at Brooklyn Bowl.  Performances by Penguin Prison, Icona Pop, BORN Ruffians, and Free Energy.  Tickets here.
  • Kimbra- 8pm at Webster Hall.  Tickets here.
  • Sea Wolf and Jim White- 6pm at Le Poisson Rouge.  Tickets here.
  • Berklee CMJ Showcase. 630pm at 92Y Tribeca.  Performances by Shea Rose, Measure Red Oblivious, Gina’s Picture Show, Bent Knee, Golden Bloom, and The Field Effect.  Event information here.
  • Miike Snow, Niki and The Dove- 7pm at United Palace Theater. Tickets here.
  • CMJ 2012- 4pm at Legion Bar. Performances by The Dunnie Bobos, Cosmonaut, Fast Yers, Boy Girl Party, Throw Vision, Little Anchor, Isle of Rhodes, and Those Mockingbirds.  Information here.

 

America Invents Act & It’s Impact on Patent Law

October 10th, 2012

The Leahy-Smith America Invents Act (AIA) was enacted into law on September 16, 2011.  The act modernized US patent law in an effort to harmonize our system with the rest of the world.  A number of the AIA’s significant changes to patent law became effective last month on September 16, 2012, while the remainder of changes will take effect on March 16, 2013.

This article will review the basics of patent law and describe some of the AIA’s more significant provisions.

Patent Law Overview

Patent law gives the patent owner the right to exclude others from practicing their patented invention.  This means means the holder of the patent can prevent others from manufacturing, using, selling, or importing the invention.  However, a patent doesn’t automatically give the patentee the right to practice the invention himself since, it may still be restricted by other patents.

There are three types of patents one can be granted:

  1. Utility Patent (for the functional aspects)
  2. Design Patent (for the ornamental aspects)
  3. Plant Patent (for new or distinct varieties of plants).

The most common patent is a utility patent, which can be granted for a process, machine, manufacture, or a composition of matter.

Before being granted a patent, the invention must qualify as useful, novel, and non-obvious. In addition, your application must meet the detailed requirements for descriptions and drawings.

 

America Invents Act: The Changes

In total, there are about twenty changes that the America Invents Act (AIA) makes to US patent law.  However, there are a few that are more important and warrant our closer attention:

 Best Mode (Effective as of September 16, 2011)

The best mode is an application requirement, in which the inventor must disclose the best way to practice the invention.  With the implementation of the AIA, failure to disclose best mode is no longer available to the USPTO (United States Patent and Trademark Office) as a ground for invalidity, unenforceability, or cancellation of a patent.

Prior Art Submission (Effective as of September 17, 2011)

Third parties have always been allowed to submit prior art in another’s patent application with the intent to block the grant of the patent.  But now, those third parties remain anonymous and the USPTO also doesn’t have to inform the patent applicant that third party prior art has been submitted on their filed application.

 First-inventor-to-file (Effective March 16, 2013)

One of the most important changes to patent law has to do with priority.  Starting on March 16, 2012 priority will be given to first inventor to file an application, or to the first inventor to disclose the invention to the public, assuming that they then file within a year.   The implication with this change is that an applicant will need to file early and file often.  This new system will replace the “first to invent” regime.  Also, the inventor now has a one-year grace period between public disclosure of an invention and the actual filing of the application.

 Changes in the Definition of Prior Art (Effective March 16, 2013)

The new definition of prior art now provides for globalization, which means if an invention was in practice anywhere in the world, the applicant cannot obtain a patent for their supposed invention.  Therefore, prior art has expanded and no matter whether it’s domestic or foreign prior art, the filing date of that prior art rules.  Also, “known or used by others” is eliminated from the definition of prior art.  Added to the definition is prior art that is in  “public use”, “on sale”, or “otherwise available to the public” no matter where in the world.  Also, the 1-year grace period for third party prior art is eliminated, unless the prior art was derived from the patentee or the patentee disclosed first.

Further Resources

http://euro.ecom.cmu.edu/program/law/08-732/Patents/PatentLawPrinciples.pdf

http://www.uspto.gov/aia_implementation/aia-at-a-glance.pdf

The Prior Art Expansion under the AIA 

http://www.natlawreview.com/article/summary-america-invents-act