March 2017

The music battle continues over the question of whether state laws provide a public performance right in pre-1972 sound recordings. While, as we wrote here and here, the highest court in New York has determined that there is no such right in that state ending the litigation there, cases continue in other states, notably California (where a Federal Court determined that there was a state right, see our summary here) and Florida (where the Federal Court determined that there was not, see our summary here). The Florida case has been referred to that state’s highest court for an advisory ruling on the state of the state’s law on the issue, and earlier this week, the same thing happened in California. The US Court of Appeals for the 9th Circuit, which was hearing an appeal of the Federal District Court decision that there was a performance right under California law, decided to turn to the experts in California state law – the California Supreme Court – and ask for an interpretation of California law to determine if there is indeed a public performance right in these pre-1972 recordings.

Flo & Eddie, the performers behind the 1960s band the Turtles, stirred up a major music rights controversy several years ago by their high-profile lawsuits against music services including Sirius XM and Pandora as to whether there is a state law public performance right in pre-1972 sound recordings (see our article here on the first of these suits). Those recordings are not covered under Federal Copyright law, so Flo & Eddie had the novel idea of bringing state law actions to enforce a purported state law performance right in these recordings – even though no such right had been enforced against any music service in the 45 years since Federal Copyright law decided to cover all new US sound recordings, and even though Federal law did not itself create any performance right in sound recordings until 1995, and then limited it solely to digital performances under a very carefully crafted statutory license scheme. Even though no state law explicitly states that there is a performance right in these pre-1972 law, in California, the band has relied on a very general statutory grant of property rights in pre-1972 sound recordings to conclude that this broad grant included a performance right – even though there were no indication as to how such a performance right would function, or what limitations would apply, as are specified under Federal law. The US Court of Appeals, in its order referring this question to the California Supreme Court, noted the general nature of this statutory grant, and asked the state court for an interpretation as whether it really is meant to include a performance right.
Continue Reading More on Flo & Eddie: Federal Court Certifies to California State Court Question of Whether There is a Public Performance Right in Pre-1972 Sound Recordings

Less than a week ago, the National Collegiate Athletic Association filed a trademark infringement action in federal court against a company that runs online sports-themed promotions and contests under the marks “April Madness” and “Final 3.”  The NCAA is seeking injunctive relief, damages, the defendant’s profits, punitive damages and an award of attorneys’ fees.

Last year, I wrote about the risks of publishing ads or engaging in promotional activities that “play off” the NCAA Collegiate Basketball Playoffs.  Clearly, such activities continue to carry great risks.  Accordingly, I am republishing last year’s blog post on this subject:

It’s March Madness!  Know the NCAA’s Rulebook or Risk A Foul Call Against the Unauthorized Use of Its Trademarks

With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness,® The Big Dance,® Final Four® or Elite Eight,® each of which is a federally registered trademark.

The NCAA Aggressively Polices the Use of its Trademarks

It has been estimated that, last year, the NCAA earned $900 million in revenue associated with the NCAA Basketball tournament.  Moreover, its returns from the tournament have historically grown each year.  Most of this income comes from broadcast licensing fees.  It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers.  As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks.  Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license.  Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.
Continue Reading It’s March Madness! … It’s April Madness! … Be Wary of Using the NCAA’s Trademarks

Last year, we wrote about legislation adopted by Congress telling the FAA to adopt rules to require the lighting of towers less than 200 feet tall located in rural areas.  That legislation was designed to protect aircraft used for agricultural purposes like crop-dusting from collisions with such towers.  The law surprised most of the…

As we wrote last week, the FCC approved the expanded use of FM translators by AM stations – allowing their use anywhere within a 25-mile radius of their AM transmitter site, or within the 2 mv/m contour of the AM station – whichever is greater.  The current rule restricts that will be replaced limit…