Thursday, May 10, 2007

Giving new meaning to "uphill battle"

Kentucky Fried Chicken hatches a plan to cause England's Tan Hill Inn to cease and desist its use of "Family Feast" to describe the inn's fried chicken boxed meal. The Tan Hill is England's highest pub, located on a remote walking path 528 meters above sea level. For reference, New Hampshire's Mount Washington is at 6,288 meters. No pub at the top.

Update: that was fast. I hereby suggest all newspapers have the following sentence prepared in advance for the next thousand times this happens: "[company X] has backed off its trademark infringement claim against [small company Y] in the face of withering scorn from all corners of the globe. Lawyers for [company X] have apologized for their over-exuberance, and pledged to avoid sending ill-advised cease and desist letters in the future."


Tuesday, May 08, 2007

The really, really long tail

LA Times: digital music makes oldies new again.


Gas brand loyalty

In the context of reviewing a recent BP ad campaign, Seth Stevenson at Slate wonders if anyone really chooses a gas station based on brand rather than location or price. Speaking for myself, I do, most of the time, though that loyalty changes depending on what's available in my area. When I was living in Concord, I hit the Hess station more often than not. I hate the Jets (owned by founder Leon Hess), but I like Hess' collectible trucks, and their prices are usually pretty good. Around here, I tend to favor Irving. I think that's due to some lingering fondness developed when my family stopped at their stations a lot during a road trip through Canada when I was a kid. Again, prices are generally good, and I sort of like the Blue Canoe mark. It's goofy, in a Canadian sort of way. If we had BP in our area, I'd probably give them a shot. I admit to being attracted to their new mark, and those ads featured on Slate are pretty catchy. Bright colors and whistling get me every time.



Sunday, May 06, 2007

Compulsory Mechanical Licenses and Accounting Under the Copyright Act (part 1)

Cover songs. I often hear musicians, lawyers, and others involved in the music business speak about the compulsory mechanical license in very simple terms. "Anybody can record a cover song so long as the musical work has been previously published with authority of the copyright owner, and the statutory license fee is paid." And usually it is simple. The legal basis for the compulsory mechanical license is Section 115 of the Copyright Act.

The process is fairly straightforward if the publisher uses the Harry Fox Agency as a mechanical license agent. The musician desiring the compulsory license can go to the Harry Fox site, follow the instructions, and they are good to go. In many cases the whole process can be done online.

So what happens when a publisher does not use Harry Fox? Well, you contact the publisher. Many of the publishers that do not use Harry Fox to administer the compulsory license simply don't want to pay Harry Fox an administration fee. In this case, the publisher usually has a form license agreement which, importantly, specifically exempts the artist recording the cover from complying with the accounting provisions in the Copyright Act. The agreement will have it's own payment terms.

But what happens when the publisher, for whatever reason, does not want anybody recording covers? Time to turn to Section 115. Unfortunately, complying with the letter of the law is not all that easy, especially for artists who don't have accountants and business managers.

Section 115 is fairly straightforward. 115(a) sets forth the scope and availability of the license. 115(b) discusses the Notice of Intention to Obtain Compulsory License which is necessary to take advantage of the compulsory. 115(c) gets interesting. 115(c)5 discuss how the royalty payments are made. 115(c)5 references monthly payments and annual statements that must be made in compliance with regulations prescribed by the Register of Copyrights. 115(c)6 covers what happens in the event the accounting rules are not followed:

If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

Stay tuned for part 2, which will be an examination of 37 CFR § 201.18 which covers the Notice of Intention to Obtain a Compulsory License, and 37 CFR § 201.19 which covers the requirements for royalties and statements of account under the compulsory license.

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Wednesday, May 02, 2007


Mirage Studios, owner of the Teenage Mutant Ninja Turtles properties, karate-chops Pittsburgh video store for trademark infringement and dilution over the store's use of the TMNT characters on the storefront and in advertising. The 20-year-old store owner's defense, part one: "Under the First Amendment, I have the right to paint whatever I want, as long as I don't make money off of it." And part two: "He also said that he believed trademark law allowed him to use some version of the characters if they were 15 percent different from the originals."

Someday I'll have to make a list of the various percentage-of-difference arguments I've heard over the years. This is the first time I've heard it in the trademark context, but it comes up often when I give talks about copyright law to visual artists. Most recently I had one person insist that a seven percent change in a photograph was enough to avoid infringement. How do you calculate a seven percent change? First you change the vertical size, that's two percent. Then you change the horizontal size, that's another two. Then you change the color, and there's your remaining three. I gave him my card.