Month: April 2018

Student Summary: Entertainment

Summary from a Student: Entertainment Law Update: Developments in Trademark and Right of Publicity Law

- Lauren J. Walker, rising 3L, Howard University School of Law

The laws surrounding trademark and rights of publicity are developing as intellectual property laws continues to advance. Jonathan Goins and Benita Collier, professionals in the intellectual property sphere shared their expertise on the law and its relationship to the entertainment industry. The panel opened with a Top 10 list of issues that are currently prevalent within media and entertainment law. The issues from the perspective of the brand owner ranged from Trademark Infringement, Trademark Advertising and Federalization of Trade Secret Laws. On the contrary, from the perspective of the individual being accused of infringement the popular issues were Fair Use and the use of the mark in relation to one’s First Amendment rights.

Jonathan Goins is currently a partner at the Atlanta office of Lewis Brisbois Bisgaard & Smith, LLP where he is a member of the firms Intellectual Property & Technology and Entertainment, Media & Sports Practices. With over 15 years of legal experience, Goins has been identified as a leader in Intellectual Property Law.

Bernita Collier is Associate General Counsel at Urban One. In this role she manages intellectual property for four different major media markets. In managing these markers her responsibilities are distributed amongst radio, digital, and television. 

Two of the landmark cases that were referenced during the panel were Twentieth Century Fox Television v. Empire Distribution and Curtis Jackson v. William Roberts. In Empire, the question before the court is whether the use of Empire Records was infringement under the Lanham Act and trademark law. The court found that the use of the record distribution company that previously existed and slightly parallels the portrayed record company in a television show would not cause consumer confusion and would not be trademark infringement. On the contrary, in Jackson the question presently before the court is whether the actual usage of popular rapper 50 Cent’s (Curtis Jackson) voice in rapper Rick Ross’s (William Roberts) song is copyright and right of publicity infringement. The use of Jackson’s voice is 19 seconds in a 3-minute song so the court will need to address whether the use of the voice from a song that has a copyright constitutes copyright infringement and is not fair use. Additionally the court will decide whether this use is a violation of Jackson’s right of publicity since this song will likely be sold and Roberts may earn financial gain.

Panelists Goins and Collier established that no celebrity is exempt from intellectual property lawsuits. Entertainer Beyonce Knowles was recently sued by a Russian artist for the use of her voice in Beyonce’s song. The court found in favor of Knowles for di minimus use and First Amendment Fair Use.

To close the panel each panelist discussed the array of issues that they may handle during the day given their roles but shared the importance of staying up to date with the law as it develops, the need to have a good relationship and open communication among all parties, and the importance of correctly advising your client.

by iipsj

Student Summary: Music

Summary from a Student: Music Sampling, Fair Use, and Social Justice

- Anthony Williams, rising 2L, Howard University School of Law

This session was a panel discussion with Lita Rosario (President & CEO - WYZ Girl Entertainment Consulting, LLC), Chanelle Hardy (Strategy Partnerships and Outreach – Google), and Dylan Gilbert (Policy Fellow - Public Knowledge); moderated by Kimberly Tignor (Public Policy Director - Lawyers’ Committee for Civil Rights Under Law). Panelists discussed the complicated relationship between music sampling, the Fair Use standard, and how to utilize the Fair Use standard as a tool for Social Justice. Attorney Hardy spoke to the imbalance that people of color face when dealing with copyright law enforcement. Specifically, suits for copyright infringement are brought against people of color at higher rates than their Caucasian counterparts. Additionally, people of color have lower success rates in asserted claims of copyright infringement.

Attorney Gilbert transitioned to how there needs to be legislation outlining a specific Fair Use standard. The Fair Use standard allows an individual to use copyrighted materials as long as it is not a substantial amount and for a transformative purpose. However, courts vary in deciding what qualifies as fair use. There is no law in the United States that expressly dictates how many seconds of a copyrighted sound recording an artist can use. Hip-Hop artists are particularly susceptible to the lack of consistent Fair Use guidelines, as Hip-Hop music relies heavily on music sampling. In response, Attorney Rosario emphasized this point by discussing a technique used a lot in Hip-Hop called looping, in which a composer takes a part of an instrumental and loops it multiple times to create a new sound. Although this technique essentially creates a new composition, nevertheless suits against Hip-Hop artists are initiated at disproportionate rates due to the inconsistency. For example in Bridgeport Music v. Dimension Films, rap group N.W.A was told that a music license was mandatory to use a sample, but in the Salsoul v. Madonna, Pop singer Madonna was allowed to use copyrighted material deemed de minimis or so trivial that it was not a violation of copyright infringement.

In the final segment, Attorney Rosario offered an interesting perspective on advocating for stronger copyright laws and a definitive fair use standard. Attorney Rosario represents some older musicians, whose primary source of income is through music sampling. Without stronger copyright protections these artists are unable to generate income as they are unable to tour or put out new music. Social justice advocacy takes many different forms and it was highly informative to learn about opportunities to advocate in the intellectual property realm.

by iipsj

Student Summary: Counterfeiting

Summary from a Student:  Counterfeiting: Ways to Combat

- Iesha Summerall, rising 3L, Howard University School of Law

This session was presented by Toni Y. Hickey, the Deputy General Counsel & Chief IP Counsel at Cummins, Inc., a Fortune 500 company and Robert “Bob” J. Kenney, Partner at the one of the nation’s highest ranked IP firms—Birch, Stewart, Kolasch & Birch, LLP.

The presenters began the session by discussing what a counterfeit is and why it occurs. Bob explained that those who engage in counterfeiting make fake replicas of a real product. These replicas are produced with the intent of taking advantage of the superior value of the imitated product.

Counterfeiting can take place in each area of IP—tampering with patented products, passing off trademarks, and pirating copyrights. Toni and Bob also explained that sometimes the counterfeit product is not counterfeit because it is fake, but counterfeit because it is imported from another country without the permission of the intellectual property owner. These products are known as gray market goods.

After discussing what a counterfeit is and why it occurs, Bob and Toni discussed the social justice and business issues that occur as a result of counterfeiting. As a societal concern, defective or inferior goods can seriously injure and even kill consumers, advertently or inadvertently. Toni gave an example of counterfeiting that could affect health. When tampering with a pharmaceutical patent, a counterfeiter can remove the active ingredient from a drug, causing the drug to be completely ineffective. Bob also described how a tech defect in a counterfeit cell phone battery has caused serious injury in the past because it blew up while the consumer was using their cell phone. Another serious societal issue is that counterfeit products are used to support and fund terrorism, organized crime, and sex and drug trafficking.

Business issues that arise as a result of counterfeiting include the counterfeit goods harming the reputation of the trademark or the brand of a product. Counterfeit goods also cannibalize sales from the imitated goods and cause manufacturers to spend millions in resources on anti-counterfeiting efforts and regulation.

Combatting counterfeits can require different approaches and strategy, depending on a firm’s makeup. Toni offered her perspective of combating counterfeiting as in-house counsel and Bob offered his perspective as a partner in a mid-sized firm. One way firms can combat counterfeit goods is to record important marks with the Customs organizations globally. As in-house counsel, Toni further noted that in-house can make efforts to know how their products get to market and record with the appropriate Customs organization. This would make the counterfeit products easier to track before they enter the market. Generally, in order to combat counterfeits, any firm or company should always know the main problem areas and where most of the counterfeit products come from. Additionally, consumers can combat counterfeiting by refusing to purchase inauthentic goods. All in all, it was very interesting to learn the different effects of counterfeiting and how to combat them in the legal profession.

by iipsj