James A. Rose

We've all heard a lot of talk (and you are reading blog posts from me) about the Orrin G. Hatch - Bob Goodlatte Music Modernization Act of 2018 ("MMA").  You perhaps know only what information I have published about rate appeals, Copyright Royalty Judges, and the Mechanical Licensing Collective.   But you DO know about your income from streaming services (and it probably is not much).  In an effort to help the real-life Nashville developing songwriter/recording artist, I set out to write this blog post to decipher the boilerplate contracts published on the TuneCore web site.  TuneCore is a site that smooths the path for creative people to sell music online, i.e. Spotify, iTunes, Tidal, and Google Play.   I printed the contracts and began to highlight contract points such as non-exclusivity, 100% of net income, statute of limitation for objecting to accounting statements, and responsibility for securing licenses from owners of musical compositi...

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...

The year is 2019, and the writer of "Lady Marmalade" has filed suit in the month of April in the federal Central District of California: Copyright infringement, breach of contract, accounting, and declaratory relief. The publishing agreement and other documents included as exhibits are from 1973 and 1974. And the sum of damages being requested is astronomical - as in $20 million. But at issue are simple principles of copyright law, whether you consider the 1909 law that governed us when Kenny Nolan first signed off on agreements regarding his catalog or whether you consider the 1978 law that is in effect today. When you split a copyright, the two parties who split must account to one another for the royalties received and must be accountable to each other regarding any transfer in shared interest of copyright. It seems somewhat far-fetched to imagine that a writer and publisher would believe for a moment that they could enter in to a split publishing agreement, divid...

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 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...