James A. Rose

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...