Music Business/Law Tips - "Brand v. Artist"

Trademark law seeks to prevent consumers from being confused. Recently, some rappers have incorporated the luxury brand names "Burberry" and "Rolls Royce" into their artist names and related imagery. Burberry and Rolls Royce objected, alleging that the use of their marks will cause consumers to mistakenly believe that the rappers are affiliated with, endorsed/sponsored by, or somehow connected to the brands, and the use of offensive language in the rapper's music could diminish the value of the brands. Because either the rappers changed their names or did not put up a legal challenge, the brand's arguments won out here. However, because of potential free speech or no confusion arguments - is it really this black and white? For instance, in 2000, Mattel sued MCA Records for pop group Aqua’s use of the Barbie trademark in their song and video for “Barbie Girl”. After a lengthy battle, the court found that Aqua’s use was not confusing because the title of an artistic work was viewed differently than a commercial product. Clearly, trademark law is a murky and a dangerous area to tread lightly. Bottom line probably better to come up with a unique name with no potential conflicts. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Infringement - Statutory Damages"

The US Government is evaluating the Copyright Act to see if it needs to be updated to keep in step with the digital age. One of the areas it is thinking of revising is the "Statutory Damages" clause when someone infringes a copyright. The current standard per-work amount of statutory damages is set by Congress at $750-$30,000 per infringement, with an increased ceiling of up to $150,000 where infringement is found to be willful. However, to try and make awards more fair and not random - especially since with the Internet there are lots of cases of "innocent infringement" whereby users do not really know or are ignorant - the task force has recommended adding a list of factors for courts to consider when picking a number from the statutory range for an appropriate damages award (and perhaps making a new lower minimum): (1) The plaintiff’s revenues lost and the difficulty of proving damages. (2) The defendant’s expenses saved, profits reaped, and other benefits from the infringement. (3) The need to deter future infringements. (4) The defendant’s financial situation. (5) The value or nature of the work infringed. (6) The circumstances, duration, and scope of the infringement, including whether it was commercial in nature. (7) In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement. (8) The defendant’s state of mind, including whether the defendant was a willful or innocent infringer. (9) In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment. Perhaps the Law will evolve - wait and see. Ben McLane Esq benmclane.com