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After the blogging get-together tonight at the Billy Goat Taven (which, I am told, is below street level so look for the stairs), a bunch of us are meeting up at Kingston Mines (a blues club), 2548 N. Halsted.
Here's the map of where the meet the bloggers thing is Monday night, 7:30 to 9:30. If you'd like to say hello and can't make it Monday night, drop me a line - marty at schwimmerlegal dot com.
Via News.com, via Scripting News, a brand consultancy has issued a list of the most 'powerful' brands in the world:
1. Google--$66.4 billion
2. General Electric--$61.9 billion
3. Microsoft--$55 billion
4. Coca-Cola--$44.1 billion
5. China Mobile--$41.2 billion
6. Marlboro--$39.2 billion
7. Wal-Mart--$36.9 billion
8. Citigroup--$33.7 billion
9. IBM--$33.6 billion
10. Toyota Motor--$33.4 billion
The methodology may be questionable as Trademark Blog did not even make the Top 100 Brands List.
This Ninth Circuit decision on the word 'DISINFECTABLE" ends with a flourish.
NewTeeVee.com: 'Anticipating Google's 'Claim you Content'" (a system that 'somewhat automates' the DMCA process for copyright owners, that, as the article notes, reduces some of the cost but keeps the burden of enforcement on the copyright owner).
Prof Goldman: "The Best and Worst Internet Laws" (Utah places 4 out of top 10 but losts out to CDA.
Ars Technica: "Viacom: 'We goofed on Colbert Parody Takedown Notice" (Viacom and EFF resolve dispute over Colbert parody clip).
Fashionista: Kate Moss's design team issues copyright warning which, according to Fashionista and the New York Post, is ironic. Hat tip ATL.
On April 24th at 6:30 PM in the Moot Court Room at Benjamin N. Cardozo School of Law, The Cardozo Intellectual Property Society Presents
"Viacom vs. GooTube: Solving the User-Generated Gridlock"
1.0 CLE credit Available in Areas of Professional Practice
To RSVP, respond to: youtubepanel at gmail dot com
Featuring:
Stanley Pierre-Louis, Esq.
Kaye Scholer, LLP
Mark Anderson, Esq.
MasurLaw
John Delaney, Esq.
Morrison & Foerster, LLP
Moderated by:
Jonathan Purow
CSL '07
STANLEY PIERRE-LOUIS is Special Counsel at Kaye Scholer LLP in New York, where he is involved in counseling and litigation in the areas of entertainment law, intellectual property and other related fields. Prior to joining Kaye Scholer, Mr. Pierre-Louis served as Senior Vice President of Legal Affairs for the RIAA, where he developed enforcement strategies and managed the record industry's litigation in various cases, including Napster, MP3.com, Aimster and Grokster.
MARK G. ANDERSON is Associate Counsel at MasurLaw, where he focuses on intellectual property licensing, copyright issues, contracts, and general corporate and transaction work. Mr. Anderson drafts and negotiates a wide variety of licensing arrangements, management, recording, and digital distribution deals. Prior to joining Masur & Associates, Mark was Director of Business Affairs for License Music Now and Contracts Manager for Vault Music Services.
JOHN F. DELANEY is a partner in the New York office of Morrison & Foerster, where he serves as Co-Chair of the firm's Technology Transactions Practice Group. Mr. Delaney has substantial experience in advising companies on cutting-edge issues such as user-generated content, Section 512 safe harbors, virtual reality and electronic contracts. Mr. Delaney has appeared on the cover of the American Lawyer as one of the "lawyers for the new economy" and on the cover of New York Lawyer as one of "fifteen lawyers 40 and under shaping the law for the 21st Century." Crain's New York Business included him in its "Technology 100," a list of individuals "likely to shape the direction and growth of New York's economy for years to come."
8th Circuit: Deceptive trade practice claim regarding XM's claims that it is 'commercial free' not covered by arbitration clause. Text of decision here. Coverage here.
Why didn't I think of this? Why didn't somebody tell me this before? Teach yourself to compile your emails from the bottom up. First, if there's an attachment, attach it first. That way you avoid having to send the "Oops, this time with attachment" follow up. Then compose your email before you address it. That way you avoid firing off an incomplete email. No tip yet for avoiding mis-addressing emails other than never use 'reply to all' and never trust auto-fill.
Thanks for the tip to Matt Holmann of LexThink.
Billy Goat Tavern, 430 N. Michigan, Monday Night, April 30, 7:30 to 9:30. Convenient to all buses going to bigger better financed INTA parties. Ron Coleman of Likelihood of Confusion, John Welch of TTAB Blog and a domestic shorthair from IPKat will be signing copies of their blogs. My colleagues from Moses and Singer will buy you a drink. Special prize to the best avatar.
Who does Dodge have to pay to use 'Smoke on the Water', and how much?
Who does Apple have to pay to use 'School of Rock' using 'Smoke on the Water' and how much?
I asked my colleague at Moses and Singer, Paul Fakler, these questions.
The song is performed in two ways in the Dodge commercial, first by the 'engineer', and second as what sounded to my ears as the Deep Purple recording.
As for the engineer's version, Dodge would need to negotiate a one-off synchronization license with the owner of the publishing rights (blanket licenses such as a Harry Fox Mechanical License don't cover use of copyrighted music in audio-visual works). These licenses can run into the tens of thousands or higher if we're discussing, for example. The Beatles).
As for use in the commercial of what I thought was the Deep Purple version, Paul notes that we don't know that it is Deep Purple for sure. If a sound recording is used, the owner of the recording copyright, usually the record label, would request a license. If the requested fee for a sound recording is high, the advertiser may be motivated to hire session musicians to create a soundalike recording.
What if the soundalike recording contains some element, such as a vocal (or maybe even an instrument) that is associated with an individual? Then you would consult the Bette Midler/Tom Waits line of cases discussing right of publicity (and neighboring rights).
OK, as for Apple. First, it is using a clip from the movie 'School of Rock,' so that presumably is licensed. While the movie company would normally obtained a sync license to use the song, it is not likely that its sync license would have given it rights that extend beyond its use in connection with the movie, In other words, the advertiser that uses a movie clip can't get rights to the music used in a movie 'through' the movie. Therefore Apple would, we assume, also have to obtain a sync licence from the publishing company. As to whether Apple needs to pay Jack Black for his masterful musical performance, probably not, assuming that what we are hearing is the audio portion of the movie, and not a separately recorded version (such as sometimes is found on a movie soundtrack CD).
As another aside, use of the actors' images in the commercial, as a matter of industry custom, was most likely granted. Maybe Jack Black will get a little extra from the movie company, for this sort of thing.
Discuss, using the phrases 'Cat Is Not In The Hat", "Mastercard v. Nader" and "Weird Al Yankovic" in your answer.
UPDATE: Friend of the blog James G. points out that the 'Here's to the crazies' commercial has been done before. Same question as above. As for me, I think both analyses would come out the same way but one parody would be easier to defend than the other.
In 2002 we reported on some of the oldest business names in the world. The Japanese business KONGO GUMI, reportedly founded in 578, was a possible winner. Alas, Business Week reports that Kongo Gumi, family-run all those years, has gone out of business.
The Lords of Breakfast - a re-telling of Lord of the Rings but with breakfast cereal mascots.
EFF Requests that Utah AG delaly implementation of the 'Electronic Registration' law.
If you're aware of the circumstances under which a State AG can delay implementing a law, sua sponte, then please advise and I'll post it.
Via Boing Boing, Robots act as 'touts' for sex clubs in Osaka. It's a long and involved story but there's an interesting speech issue, and an interesting agency/principal issue.
Text of complaint in Gucci; Chloe and Alfred Dunhill v. MyReplicaHandbag.com et. al., SDNY, Mar 28, 2007, via Counterfeit Chic.
or is it improper if they don't donate? Leorra Herrmann reports.
Text of In re Reed Elsevier here.
AP: "Google Calls New Utah Law Unconstitutional"
"Utah Takes Flak For Its Attempts To Police Web" in which Prof Goldman rags on Utah so hard that the state might get defensive about it. Also, interesting to see 'WTF' used in legal debate.
Deborah Wilcox: "Making Deals With Evolving Technologies In Mind" (drafting pointers re anticipating changing circumstances).
Youthoughtwewouldntnotice.com - website"dedicated to pointing out those things that give you that feeling of 'haven't l seen that somewhere before?, specifically allegedly infringing things" HT Boing Boing.
A couple of years ago I was representing a British client who was buying an asset from someone who was represented by an attorney at one of San Francisco's preeminent law firms. When she called me to see when my client would wire funds, I said "today is Easter Monday, a bank holiday in the UK, so my client can not wire funds today," she said:
"F*ck you. There is no such thing as Easter Monday."
I think of her every year on this day.
Finally, a pretense for writing about American Idol. O'Reilly had on a lawyer who argued that Fox may have had a cause of action against Howard Stern and VoteForTheWorse.com, because they suggest that people vote for Sanjaya precisely because he is bad. Stern allegedly is doing so to undermine Idol's credibility. (pause). So the lawyer argues that Fox can use Stern for, I don't know, I think she said 'intentional interference with malicious intent.' She also sugested that the jilted contestants might have an action for Stern for, I don't know, contributory unjust enrichment, because Sanjaya received the spot that was rightfully their's.
I looked at the American Idol voting FAQs. They don't tell you who to vote for. The one rule is that you can't use 'power dialing.' So Stern doesn't seem to be encouraging anyone to breach a contract with Idol (having never voted on Idol, I don't know if the voter enters into another contract that might have additional provisions).
Here's an example of lawful speech: Based on that clip, Danielle Aidala may not have the surest grasp of the treatment of commercial speech and maybe you should think twice before retaining her or providing a television network as a platform for her views (O'Reilly, to his credit, seemed skeptical of her argument).
HT AboveTheLaw (including speculation as to why Ms Aidala is on TV).
Frederick News-Post Online: "Hershey to sue over alleged logo infringement" (Hershey sues vending machine operator that distributes DORK PEPPERMINT PATTIES stickers).
Corbis Corporation v. CORBIS Internet-MY c/o John Pickworth, WIPO Decision D2006-1631 (Corbis fails to establish reputation of CORBIS mark in UKL prior to 1999 registration date of Corbis.net).
Information Week: "VeriSign Domain Price Increase Criticized" (Argument that domain name registants subsidize the practice of domain tasting - in which speculators hold domain for five days to determining whether it brings in sufficient traffic).
A carbon-neutral conference, Interesting 2007, will re-brand your old schwag, rather than create its own. Via Kottke.
The Register: 'In the Wake Of Registerfly, Is ICANN Taking Flight?" (Attempting to causally link ICANN's recent contemplation of a change in legal status, to its recent dis-accreditation (decreditation? removal of accreditation?) of registrar RegisterFly.)
Tennessean.com: "Keith Urban countersues Keith Urban"
Information Week: 'Utah ban on Trademark Keywords Rankles Groups"
You can get trapped in the basement of a store for two hours when the place is being raided.
From NY One:
"Hours after breaking up an alleged counterfeit ring operating out of a Chinatown store, police were surprised to get a call late Tuesday afternoon from shoppers trapped inside the store's basement.
Police say during a raid of a store on Centre Street Tuesday, the owners herded 12 shoppers into the basement and held them there for more than two hours.
“That's outrageous – even for New York,” said one New Yorker.
Unaware of the customers trapped in the basement, police arrested five people on trademark counterfeiting charges and collected hundreds of knockoff bags, sunglasses and wallets.
About two hours later, the trapped shoppers contacted police on their cell phones and said the shop owners had herded them into the basement when officers first showed up and told them to wait. "
InternetNews.com: "Domain Name Fee Increase Set" (Verisign can raise $6 registry fee to $6.42 in October).
Mid-Hudson News: "Car Delaers Settle With State AG For False Advertising:
" . . . Poughkeepsie Chevrolet mailed thousands of fliers to Hudson Valley owners of General Motors cars with a headline that read “IMPORTANT – SECOND NOTICE – SAFETY RECALL,” complete with a recall number, warning consumers that their vehicles “may be at risk” and to call their “designated safety recall center” and schedule an appointment to address the recall. In reality, the recall, including the recall number, was fictitious. The phone number listed on the flier was actually Poughkeepsie Chevrolet’s service center, for which the dealer hoped to increase business."
Eccomerce law: "Pony Express Marks Being Auctioned Online."
Note the symbol behind those Olympic, I mean, Winter Games figure skaters in 'Blades of Glory." I took the fam to see the Will Ferrell movie Friday (Trademark Blog review: Goofy fun) and because I cannot leave the work at the office, I noticed the 'not supposed to look like the Olympic symbol' symbol, and the use of the term 'Winter Games' rather than the games that must not be named. Of course if you read the reviews, they use the term 'Olympics.'
WSJ.com: "We Heart Trademark Disputes Involving People Named Stewart" (re I Heart NY and the KATONAH matters).
NY Times: "Hoping to Move Guitar Notations Into The Legal Sunshine":
" . . . about 2 percent of the songs in the company’s catalog have licensed guitar tablature associated with them.
For the remaining songs in Famous Music’s catalog — and the vast majority of the music publishing industry’s collective catalog — there is insufficient demand to justify the costs of publishing tablature.
As a result, guitarists who want to know how to play less mainstream songs have gone to sites where amateurs post tablature. Under this agreement, MusicNotes, publishers and artists will essentially earn money from an army of volunteers, who are creating content that the publishers are not creating on their own."
NY Times: "Sports Organizations Try To Limit Online Reporting":
"When the Pan American Games start in Brazil in July, thousands of top athletes will run, wrestle and leap, but they will not be able to indulge in one popular daily exercise: blogging.
Neither will their doctors, coaches or massage therapists, in a blanket ban affecting some 7,000 people during two weeks of competition ending July 29 in Rio de Janeiro."
IHT: " Joint Promotion Adds Stickers To Sweet Smell Of Marketing":
"Guests at Omni luxury hotels will find small scented stickers on the front pages of their free copies of USA Today. A blackberry aroma will suggest that the guests start the day at their hotels with a cup of Starbucks coffee "paired with a fresh muffin." The promotion, to be tested for at least six months, is being sponsored by Omni Hotels and Starbucks Coffee."
Scent is theoretically protectable as a trademark. In the U.S. Registration no. 1639128 was granted for "a high impact fresh floral fragrance reminiscent of plumeria blossoms', for sewing threads (the registration has since been abandoned).
Prior discussion of protection of scent here.
IHT: "Warner's Digital Watchdog Widens War On Pirates":
"Missteps made today could have grave consequences for the future, particularly when it comes to consumers' willingness to pay for movies and television shows online, she believes. To illustrate the point, she tells of her niece's fish, named Mortimer, who one day leaped from his bowl, flopped on the table and gasped for air.
"Mortimer took the leap to freedom," she said. "He said, 'I'm free, but I'm dead,' " said Antonellis."
NY Times: "EMI to Allow Apple To Sell Songs Online":
"EMI Group PLC on Monday announced a deal that will allow computer company Apple Inc. to sell the record company's songs online without copy protection software.
The agreement means that customers of Apple's iTunes store will soon be able to play downloaded songs by the Rolling Stones, Norah Jones, Coldplay and other top-selling artists without the copying restrictions once imposed by their label.
EMI said almost all of its catalog, excluding music by The Beatles, is included in the deal"
LA Daily News: Crying Foul:
"When those who run the Simi Youth Baseball League decided recently to go with college uniforms instead of those of the pros, they thought they were standing on principle.
. . .
But their attempt drifted into foul territory. Because they never got permission to use the college names and logos, the league and the company that provided the uniforms could come under fire from those schools - USC, UCLA and Pepperdine University among them."
Citizen.com: Children's book series founder sues over trademark use":
"R. A. Montgomery, founder of the children's interactive book series Choose Your Own Adventure, and his company Chooseco LLC of Waitsfield, Vt., are suing DaimlerChrysler, BBDO Detroit, Organic and Marvel Entertainment in U.S. District Court for trademark infringement.
DaimlerChrysler features the trademark Choose Your Own Adventure in their recently launched ad campaign for the new Jeep Patriot. Chooseco also seeks to injunct DaimlerChrysler and its advertising partners from continued use of their mark in the campaign."
Email me for the memo in support of the motion for preliminary injunction.
James Goodale's show: Digital Age.
