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  • How Not to Write a Cease & Desist Letter

    A cease and desist
    letter is a letter that a rights owner or her attorney sends to someone who is
    allegedly infringing the rights owner’s copyright, trademark, or other
    intellectual property asset. In the letter, the rights owner explains how your actions
    are violating her rights and demands that you stop such activities.

    Cease and desist letters
    usually carry the threat of additional le­gal action, usually a lawsuit, if the
    activity does not stop. Sometimes, the rights owner means busi­ness and has the
    intention and the resources to follow through with a lawsuit if you fail to
    comply. However, other cease and desist letters are the equivalent of the
    rights owner huffing and puffing with no real power to blow your house down.
    The rights owner may have a weak or no valid legal argument against your
    activities and hopes that the cease and desist letter will scare you into
    compliance. In effect, the rights owner
    is just bluffing. Sometimes the
    recipient calls the bluff. A cease and
    desist letter too strongly worded can backfire as bad publicity for the sender.

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  • Step Number One in Understanding the Music Business. Distinguishing the Song, the Sound Recording, and the Phonorecord.

    Whenever
    I do a seminar on music law, I always start by explaining the differences in a
    song, a sound recording, and a phonorecord. To understand music law, it’s crucial not to confuse the three.

    A song
    consists of a melody and any accompanying lyrics. The Copyright Act refers to songs as musical
    works. Typically, the copyright in a
    song is owned by the songwriter or by the songwriter’s music publishing
    company. 

    A sound recording is the recorded rendition of a song. The copyright in a sound recording is
    typically owned by the record label that released the recording. Within the
    music industry, a sound recording is often referred to as a master.

    Phonorecord,
    another term coined by the Copyright Act, is any material object onto which
    sound can be recorded such as an audiocassette, a compact disc or a vinyl
    record. Note that phonorecords contain
    audio only so motion pictures, home videos and other audiovisual productions
    are not phonorecords. When you obtain
    digital version of a phonorecord via the internet, the Copyright Act refers to
    the output as a digital phonorecord delivery or DPD.

  • Copyright Seminar in Arlington, Virginia on Saturday, January 12

    On
    Saturday, January 12, 2008,  at 2:00 p.m., I’ll offer a presentation on
    “Copyrights and Licensing for Creative People” at the Arlington County Central
    Library.  The presentation covers copyright and licensing issues relevant
    to your books, websites, music, artwork, and video productions.  A book
    signing of The Permission Seeker’s Guide Through the Legal Jungle follows the
    presentation.  There is no admission fee.  The library is located at 1015 North Quincy Street, Arlington, Virginia, 22201.  The library offers free
    parking and the Ballston station metro stop on the Orange Line is three blocks
    away. For additional information, call the Arlington County Central Library at
    (703) 228-6321.

  • Five Good Reasons to Clear Rights Properly and to Request Permission When Needed


    I recently participated in a Women In Film & Video (WIFV)-sponsored panel discussion about legal issues for producers.  Having just written a book on the topic of rights clearance, I was tasked with explaining the rights clearance process to the attending film and television producers.

    Here’s my shorthand explanation of rights clearance – When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. Getting the permission you need can also involve doing paperwork, incurring
    legal expenses, and transgressing down more than a few dead ends.

    So why bother to go through rights clearance process? I decided to start my panel remarks by addressing that very question:

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  • Copyright Public Domain – Explained in 60 Seconds

    In the One Minute How-To, podcaster George Smyth challenges his guests to explain how to do something. The something can be anything the guest chooses. The catch is the guest has only 60 seconds in which to make the explanation.

    I decided to take the challenge and explained “How to Determine if Creative Material Is Public Domain or Copyright Protected”.  You can listen to my 60-second explanation of this complicated topic

    One-Minute How To Interview Dec 2007


    .     

  • Fewer Squeaky Clean Films

    A Guide Through the Legal Jungle Trivia Question

    Many parents want to watch movies at home with their
    children – but without the profanity, nudity, and other potentially objectionable
    material. Imagine a Basic Instinct in
    which Michael Douglas and Sharon Stone just hold hands. A July 2006 federal
    court ruling shut down the companies that distribute sanitized versions of
    popular movies finding those companies guilty of copyright infringement. Unaffected by the ruling are companies that
    offer software that bleeps out profanity and obscures nudity while the original
    dvd plays on a computer or specialized dvd player.  Do you know which one of the following four answers explains why these software-based
    filtering companies are still in business?

    1. Federal law specifically protects the software-based filtering business model.
    2. The software-based filtering companies have entered licensing agreements with Hollywood studios.
    3. Most of the software-based companies are foreign-based so a US court decision does not affect them.
    4. The software-based filtering companies work on movies that are in the public domain.

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  • Public Domain Status and the Punch of International Copyright Law

    Normally, one assumes that if you operate your business exclusively within the confines
    of a single country, you need concern yourself with only the laws of that particular country. Doing business on the Internet challenges this assumption as illustrated by the recently forced hiatus of
    classical music site International Music Score Library Project (IMSLP).

    IMSLP
    is a free online library which offers its visitors copies of musical scores that
    are in the public domain. The site’s
    owner, its server and its operations are based in Canada so it relied on Canadian law
    when determining which musical scores were in the public domain and could be
    permissibly offered through the site.

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  • Can You Post Lyrics on Your Website? A Few Services that Make It Legal.

    Hopefully,
    it comes as no surprise to anyone that song lyrics are protected by copyright
    law. Song lyrics are protected whether
    or not they are registered with the U.S. Copyright Office. They are protected whether they are used with
    or without an accompanying melody.

    Websites
    offering song lyrics without permission are violating copyright laws and
    exposing themselves to claims of copyright infringement.  Of course, IF you’re displaying the lyrics in
    a manner that qualifies as fair use, you’re not violating any copyright laws.
    But, like most fair use questions, that’s a big, shaky, and potentially messy “IF”.

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  • March Madness

    A Guide Through the
    Legal Jungle Trivia Question

    Which
    one of the following sports organizations first coined the phrase March Madness
    to describe an athletic tournament?

    A. Illinois High School Association
    B. National Collegiate Athletic Association (NCAA)
    C. Olympics
    D. National Basketball Association (NBA)

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  • Public Performance v. Private Performance of Songs

    Incorporating music into your business model usually requires payment of a music licensing fee.  One company offered onsite children’s’ activities with music in the background. The business owner legally downloaded the music from an online digital music store and played it on a modest stereo set-up.

    Not surprisingly, one of the performing rights organizations (PROs) came knocking at the business owner’s door claiming that the company’s use of the music required a license. Public performances of songs do require licenses and the payment of royalties. Since many people do not realize the necessity of a license for the public performance of music, the initial step of PRO’s upon finding an unlicensed use is “to educate”. However, if the company does not comply, the PRO will move to legal action which can result in damages of a few thousand dollars for each song the PRO can document the business played without a license.

    The PROs in the United States are ASCAP, BMI, and SESAC. Each PRO has a different catalog of songs. BMI is the largest. SESAC is the smallest of the three with the smallest catalog. If one approached the company mentioned above, the other two may very well be in touch soon.

    While public performances of songs require licenses, private performances do not. However, there have been many disagreements concerning what constitutes a public performance versus what constitutes a private performance. For example, a performance may be deemed as public even if it takes place in a semi-public place such as a social club.

    I discuss the topics of music licensing, PRO’s and public versus private performances in depth in my book The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions (available at www.GuideThroughtheLegalJungle.com and from retail and online bookstores).