James A. Rose

Or perhaps even (pun intended) "Dark Horse". Whatever side you take in this copyright infringement situation that seems to be trending in the direction of plaintiffs will be somewhat controversial.  In the Ninth federal Circuit, to state a claim for copyright infringement, a plaintiff must plausibly allege two things: Ownership of a valid copyright in the subject work Defendants copied protected aspects of the subject work's expression Malibu Textiles, Inc. vs. Label Lane International, Inc. , 922 F.3d 946, 951 (9th Cir. 2019) Some would say that there is no way a Christian rapper like Marcus Gray p/k/a Flame could make this happen against an artist like Katheryn Elizabeth Hudson p/k/a Katy Perry, associated songwriters, and Capitol Records, LLC. But following five years of pretrial litigation and seven days of proof, that is exactly what happened. "Joyful Noise" appears on the album Our World: Redeemed , which received a Grammy nomination fo...

In my entertainment law practice, the one subject that seems to generate the most confusion is trademarks. I am going to take the term "confusion" to a legal point in this blog post. "Likelihood of confusion" is a major hurdle to achieving a registration in the United States Patent and Trademark Office (USPTO). Many music industry people have false impressions about the process of filing and registering a federal trademark. Some are savvy enough to file their own applications. However, when the application is reviewed by an examining attorney at the USPTO in Alexandria, Virginia, the fearless pro se  applicant will call and request help. Many times it is too late to help. Application fees and the time spent filing the online application are wasted. So it is best to be informed about the basics of the process before beginning. A mark must  be in use in commerce before it can register. It is possible (and sometimes advisable) to file an application based on t...

John Rich initially became popular in country music as a part of the duo "Big & Rich". This name also accurately describes his approach to trademark applications for a name he has been quoted as prizing and that now graces Lower Broadway in downtown Nashville - REDNECK RIVIERA and RR REDNECK RIVIERA (In the latter stylized design mark, the two letters "R" are stacked vertically on top of one another. The bottom "R" is upside down".). Celebrities are always helpful case studies for entertainment law. Taylor Swift made news in her early years of popularity with a merchandise trademark enforcement bust at some sort of concert event. Frankly, some celebrities' legal teams handle branding and trademark issues better than others. I applaud Mr. Rich and his team on their investment into the two above-referenced marks. But I wouldn't necessarily recommend this approach to my clientele. It is intriguing to see how developing creatives in N...

So were you surprised when you woke up on Thursday, June 20, 2019, to the news that Carrie Underwood & Co. are defendants in a federal copyright infringement action over the theme song to Sunday Night Football ? Some would say that it is no surprise given that Underwood's team has been dragged into court before for the same reasons. Reports are that the most recent action ended in dismissal. But this time the court may be playing a different tune. Of course, we are just learning about this case. All we have to consider for the time being is the Billboard  analysis (which builds a case for infringement) and the complaint. The smart money says that this will not be my final blog post on this case, and there is certain to be a strong defense from all defendants. All that having been said, here is what I think based on what I know: The four plaintiffs are writers Heidi Merrill of California, Alex Wong of Nashville, Jeff Cohen of Nashville, and Niclas Lundin of Sweden. ...

The "safe harbor" of the Digital Millennium Copyright Act, found specifically in Title 17, section 512 of the United States Code, seems to be decreasing in size. This has positive ramifications for copyright holders in the music industry. Billboard Biz recently reported that Charter Communications is a defendant in a lawsuit filed by record labels and publishers alleging that it refused to take "reasonable measures" to limit copyright infringement by its subscribers. Considering the result of a similar action initiated by BMG Rights Management in 2014 and decided  on appeal in February 2018 by the federal Fourth Circuit, the labels and publishers may be in a strong position to win a judgment against Charter. The BMG vs. Cox Communications  suit resulted in a settlement after the appellate panel found jury instruction errors and remanded the case.  But the key part of the opinion upheld summary judgment for BMG on the argument of Cox that it was entitled...

The world of trademark is not as simple as one might think. And that is what lawyers are for. When Luke Bryan winds up the CMA Music Festival Sunday night at Nissan Stadium in Nashville, he will have a single registration for the 32 BRIDGE mark that salutes his Georgia heritage. But the restaurant and bar mark won't yet be registered.  And if you're thinking that one registration covers all uses and possible uses, think again. If you're filing for a merchandise/clothing, you're not automatically protected for restaurants and bars. In fact, there are really two types of marks: "Trademark" is a universal term, but some marks are really used as service marks. There are 45 international classes, mostly used for administrative purposes by the United States Patent and Trademark Office ("USPTO"). The big point of administration for you is that you pay an extra fee of at least $225 if you apply for more than one class of goods or services. The first...

The year is 1991, and Stephen Perry and Phil Brown are recording demos on an eight-track recorder in Brown's California home. They write two compositions: "Somebody Somewhere" and "Don't Push the River". Brown shows Perry two other songs he previously wrote, and Perry lays down vocals for all four songs. The two musicians enter into a modest administration agreement designating Perry as administrator in perpetuity  of the two co-writes. Perry advances Brown $1500, recoupable against collection of writer and publisher royalties. Brown, in turn, executes a promissory note for payment of the $1500 in the event that the songs do not make Perry's next LP. The songs do not make the LP For the Love of Strange Medicine , released in 1994. But the tapes remain with Brown. In 2002, attorneys for the two parties exchange terse letters regarding ownership of the sound recordings. But the dispute never makes its way into court. Fast forward to October 2018, ...

The practice of law is full of irony and surprise on many fronts. In about fifteen years of filing and prosecuting trademark applications, mostly in various areas of entertainment and many in the music industry, I have been surprised about the identity of those who want to trademark their goods or services. Many of those who seemed to be at an ideal stage of their career or business development were reluctant to spend the money necessary to protect their name and increase the value of their brand. Those who needed to focus efforts elsewhere came to me and hired me. This hasn't happened every time and with every client, but it has been a trend in past years. Lawyers may not be the most prominent professionals in the business of music we love in Nashville, but industry players would do well to follow our advice and counsel in our areas of expertise. For this blog post I decided to summarize my experience with trademark consultations and applications. Hopefully, it is somethi...

As you have been reading in plenty of places (including this blog), the Music Modernization Act of 2018 and the reforms put into place by it will continue to have a positive impact on those who create music. In recent months, discussion regarding possible termination of the ASCAP and BMI federal consent decrees has begun. This was noted in an article by Nate Rau in  The Tennessean  on March 3, 2019. So just exactly what are these consent decrees? And why should we even want to see them terminated? The answer lies in monopoly and price-fixing litigation initiated by the United States Department of Justice over 80 years ago in the Southern District court of New York. In 1941, agreed orders, also known as decrees, were presented to and approved by the court. ASCAP has the most recent modified decree on its web site. This was signed in 2001. The BMI decree was amended last in 1994. If you can find the BMI decree, please send me the link. Executives from both ASCAP and BMI hav...

In the crazy business of music that we love, attention to detail is always important. And as the world of showbiz takes many unpredictable turns, an otherwise harmless occurrence of lack of attention can be magnified to one of big-time harmful proportion. It's a pretty good bet that Fourth Estate Public Benefit Corporation, a producer of online journalism content, never saw itself as a petitioner in the Supreme Court of the United States. The vast majority of lawyers and litigants of all kinds never see one of their cases be granted writ of certiorari and go before the nine justices for briefing and argument. But in Fourth Estate vs. Wall-Street.com, LLC , the justices of our nation's highest court saw the opportunity to clarify the legal standard for the right to sue for copyright infringement. And it didn't take long for Justice Ruth Bader Ginsburg to lay down the law in a unanimous opinion - Formal registration by the U.S. Copyright Office is required before an ...

If you're in the music industry in Nashville, you likely have heard something about the appeals filed by Spotify, Amazon, and Pandora. And although you have heard plenty from strong activist organizations such as Nashville Songwriters Association International (NSAI) regarding recent rate determinations, it is perfectly normal to wonder exactly what has been determined and why appeals have been filed.  A big part of the answer comes from a publication rarely read by most but full of information about a recent finalization of rate determinations by a vote of 2-1 from Copyright Royalty Judges. These judges are appointed by the Librarian of Congress, who must consult with the Register of Copyrights regarding such appointments. Decisions by the judges may be appealed (and, in this instance, are being appealed) to the U.S. Court of Appeals, District of Columbia Circuit. These determined rates are for the payment of royalties for compulsory licenses. An owner of a copyright has th...

Well, in case you are following the Kane Brown federal litigation saga and my analysis from 3/18/2019, mediation is now officially OUT as a remedy from the vantage point of this entertainment lawyer. At least for now. It seemed that someone on Kane's legal team was reading my blog and rebutting it all in one fell swoop. Just as my spiel on the complaint filed by Zone 4, Inc. went live, the answer, affirmative defenses, and counterclaim of Kane Allen Brown went to the court clerk in Atlanta. So read backward to March 18 of this year. But read forward, too. Because this litigation is not going to end soon. The upshot is that Jamal Jones p/k/a Polow Da Don ("Polow") has some explaining to do regarding his prior relationship with Sony Music Nashville via Epic Records. The answer from Brown indicates a "Secret 2013 Epic/Sony Deal" by which Polow and his company Zone 4 were obligated to bring any identified artist talent to Epic/Sony. This secret deal pro...

I get it. The intricacies of compulsory licensing are not as cool of a read as analyses of litigation and other subjects that an entertainment attorney might choose to write about. And the metrics of this blog reflect that. And yet I follow my train of thought from the last blog post on section 115 of the Copyright Act and encourage industry professionals to read on. The Music Modernization Act is now law. If songwriters, publishers, and artists want to get paid for their music, basic knowledge of licensing and how this new system works are essential. And so we go to blanket licensing. A digital music provider that qualifies for a compulsory license may obtain a blanket license through the mechanical licensing collective, also known as the MLC.  The MLC has not yet been put formally into place. A recent editorial in Billboard magazine frames the quest of the American Music Licensing Collective to have authorization to name directors. This ultimately will be decided by ...

This edition of the James Rose Blog About Law is focused on the general scope of compulsory licensing of sound recordings and the major changes that stemmed from the Music Modernization Act ("MMA") signed into law by President Trump in October of 2018. Section 115 of the Copyright Act of 1978 is the statute for this short blog analysis.  Parts of it are already well known.  A compulsory license may be obtained only if the primary purpose is to distribute the musical work to the public for private use.  The sound recording must be fixed lawfully in a material object known in the legal world as a phonorecord with distribution authorized by the owner of the copyright before another person may obtain a compulsory license. An important component of the MMA is the requirements of record keeping.  The copyright owner must  identify himself or herself in a registration or other public records of the copyright office.  This is an important point of detail f...

Not all "trademarks" are actually trademarks. If you're thinking about a series of downloadable  albums of music, don't apply for "Really Sensational Jams". If you're opening a new honky tonk on Lower Broadway in Nashville, don't call your attorney about "Beer & Burgers on Broadway" as your name brand. It might compete with Dierks Bentley, Luke Bryan, and Kid Rock. But it won't earn you a registration certificate from the United States Patent and Trademark Office ("USPTO"). It is always a tough role to be a "buzz kill" when a creative client calls regarding a name or brand with wild enthusiasm. Of course, they don't understand the law and trademark application process. That is why they're calling you. And they don't want you to merely tell them what they want to hear.  But they also don't want to hear that their latest, greatest name may not register. Applying for a trademark in 2018 and ...

Note:   This post was inspired in part by a Billboard Biz article written by Steve Knopper entitled "Why Music Executives Seek Lawyers With Conflicts of Interest: 'It's a Very Incestuous Business'" and published October 19, 2018.  Any reference to the "article" or "the Billboard  article is to this article. You're a developing recording artist and ready to roll with your first major label record deal. You simply smile and nod when told who your attorney for the deal will be. But something trips in your mind when you learn that this attorney will simultaneously represent the label. You need a divorce and have children with your spouse. Or your relationship with the other parent of your children is on the skids, and a court-ordered parenting plan will become necessary soon. You seen no harm in saving money and hassle and just hiring one lawyer. But when you sit down to meet with the lawyer, he or she slides over a sheet of paper captione...