Cover of “Acidjazzed Evening”

By Nick Kajca

Count me among those who assumed there was no meaningful distinction between posting content on the “internet” and posting on the “World Wide Web.” As it turns out, the Eleventh Circuit would beg to differ. At least when it comes to determining what constitutes a published “U.S. work,” for purposes of applying the copyright registration requirement – a statutory mandate for registration in order bring an infringement action under the Copyright Act unless a work is first “published” outside of the U.S. In Kernel Records Oy v. Mosley, No. 11-12769, slip op. at 32 (11th Cir. Sept. 14, 2012), a case arising in the context of global online music publishing and distribution, the Eleventh Circuit issued a detailed opinion holding that where and when first publication occurs can depend upon a critical distinction between merely distributing content over the “internet” and publishing content that is available globally on the World Wide Web. Continue reading →

By Bryan Russell

Apparently not much . . . or at least, not enough to constitute copyright infringement. Vincent Peters, “professionally known As Vince P,” sued Kanye West for copyright infringement of his song Stronger. Vince P v. West, No. 10 C 3951, slip op. at 1 (7th Cir. Aug. 20, 2012). On August 20, 2012, the Seventh Circuit Court of Appeals affirmed the trial court’s dismissal of Vince P’s infringement suit for failure to state a claim under FRCP 12(b)(6). Continue reading →

From the Collection of William P. Gottlieb

Big Machine Label Group, a major music recording label, and Clear Channel Communications recently structured a landmark licensing fee arrangement; their deal marks the first time any U.S. radio broadcaster has agreed to pay performance royalties to a record label or performer for the use of their sound recordings. This development is a telling sign that an anomaly in U.S. copyright law, which several members of the 111th Congress tried unsuccessfully to eliminate, remains a pressing issue in the U.S. radio and recording industries.

Under current U.S. law, terrestrial broadcasters—as compared to satellite broadcasters—are required to pay licensing fees to the composers of the recorded music they air. But they are not required to pay the performers or record labels responsible for those recordings. Under this regime, a radio company that broadcasts Charlie Parker’s heavily improvised 1947 recording of “Embraceable You” would be required to pay a significant fee to the estate of composer George Gershwin, but not to Charlie Parker’s estate. By contrast, most other countries require all broadcasters to pay royalties to both composers and performers. And unlike terrestrial broadcasters, U.S. satellite and internet broadcasters are also require to pay both groups.

The Performance Rights Act, a bill introduced in 2009, would have required terrestrial broadcasters to pay fees to performers as well. The bill died in part because of a stand-off between radio and recording industry interest groups. Big Machine and Clear Channel’s recent deal is an indication that at least some members of these groups are bypassing the legislative impasse with private compromise.

The Washington Journal of Law, Technology & Arts (LTA Journal) has published its first issue of the 2012-13 school year. The LTA Journal publishes concise legal analysis aimed at practicing attorneys on a quarterly basis. This quarter’s edition includes four articles by student members of the LTA Journal. Continue reading →

Photo Credit: Preston Smalley of Flickr

By Bryan Russell

In Coach, Inc. v. Allen, 2012 U.S. Dist. LEXIS 100829, at *28-29 (S.D.N.Y. July 18, 2012), the court ruled on summary judgment that “[b]ecause Defendants have clearly acted in bad faith by distributing counterfeit versions of Coach’s merchandise, I grant the request that Coach receive the maximum amount of statutory damages for willful infringement for twenty-two separate acts of infringement.” As noted by the court, “the statutory maximum [is] $2,000,000 per counterfeit trademark.” Id. at *23. While the court declined to show its math, twenty-two multiplied by two million equals forty-four million dollars—$44,000,000. What happened? Continue reading →