Coachella 2012: Right of Publicity

Rapper Tupac was back from the dead and back on stage at Cochella 2012 with the help of some new technology. The technology surprised many and had concertgoers thinking they were seeing a ghost. Holographic technology made the performance possible and quickly gained a lot of buzz at and after Cochella.

The technology allowed a hologram of the deceased rapper which was projected on stage to preform with Snoop Dogg, who later talked about the experience. While some celebrities reacted with enthusiasm, while others didn't care much for the hologram. The hologram has caught the attention of other deceased celebrity estates who will be looking into this new ability with a strong interest. Can you imagine Michael Jackson or Bob Marley back on stage? Or Dick Clark ringing in the New Year with us one last time? Various legal considerations play a role in the possibilities of deceased legends going on tour as holograms.

Intellectual Property Attorney's will be looking at the Right of Publicity when considering this technology in licensing deals. Some commentators discuss the copyrights and trademarks also associated with the hologram, while other look at the creation of an independent public performance copyright. Whatever the future, the performance at Cochella has been the buzz of  Tinseltown, and many are talking about the impact the technology can have on the entertainment industry.

Another Win for the DMCA

A New York District Court continued the precedent of protecting Internet Service Provider's (ISP's) from infringement as long as they comply with the safe harbor provisions of the Digital Millennium Copyright Act's (DMCA) safe harbor provisions. EMI filed action against Mp3tunes.com and its founder alleging copyright infringement. The ruling seems to have left EMI on top but ISP's are the real big winners in this one.

MP3tunes.com was found to be liable for contributory infringements after not complying with take-down requests from EMI for infringing songs, however the court didn't find the company liable for direct infringement based on the fact that users are the ones who upload the infringing material not Mp3tunes.com.

The court did find Michael Robertson, the companies founder liable for direct infringement for songs he personally uploaded but that's far from what EMI was seeking. As explained in an article published on CNet, the outcome for this case will protect, or at least implies that it will, new "cloud" music storage services becoming more popular among consumers. The sticking point is whether the service provider has control over the infringing acts of its users. The court found that Mp3tunes.com didn't have control allowing it to be protected through the DMCA's safe harbor provision.

The Safe harbor provisions allow ISP's to avoid liability for infringement if they remove infringing material when they become aware of it, usually through the copyright owner sending a request for removal. However, this case affirms a long line of cases which continue to show that ISP's have no obligation to monitor the user generated material on their websites. This will no doubt continue to frustrate copyright owners who just want to protect the exclusive rights they have been given from forms of unauthorized mass distribution available online.

Capitol Records, Inc. v. MP3Tunes, LLC, No. 07 Civ. 9931 (S.D.N.Y. Aug. 22, 2011)

Reclaiming A Copyright

An interesting article in the New York Times earlier this week highlighted a feature in the U.S. Copyright Act of 1976 which is beneficial for artists who may want to reclaim their work after years of a record company benefiting off of their recordings; in many cases more money then they, the author, has made.

The "termination" provision allows recording artists to end agreements granting rights to their copyrights and take them back as long as they do so two years in advance and as long as the work was a contractual transfer and NOT a work made for hire. The Record Industry doesn't like it and is indicating they will fight it with an argument that the works are "works made for hire." If a record label is considered the author of a work then the termination provision (Sec. 203) cannot be applied as it only allows the termination of contractual transfers of a work not works which provide them authorship through statutes. Only time will tell as many commentators don't believe that a sound recordings will be considered "works made for hire"  are not likely to hold up in court for a variety of reasons. 

Though any artist would be smart to take advantage of this, the more well known artists and their songs which are still well recognized and known will be the first in line.

Needless to say, this is going to result in more formal transactional work for law firms as various works reach this termination period. Not all works qualify under this provision and this will also lead to litigation down the road when the applicability of the provision to a particular work is challenged.

Read the full article here: Record Industry Braces for Artists’ Battles Over Song Rights