DJ Performance Agreements

06 Wednesday Mar 2019

Posted by in Artists, Business Law, Entertainment Law, Intellectual Property, Just for Fun, Musicians

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A good DJ will impart a sense of feeling, rythym and happiness on a party.

In order to ensure that their own business also runs as smooth and happily as the dance floor, DJs providing services for venues should use a performance agreement in securing a set and, importantly, the payment. Here are some key questions to consider for your DJ performance agreement:

  1. Have you made sure the venue can understand the provisions of the contract?
  2. Have you communicated to the venue the minimum deposit needed to bind the terms of the agreement?
  3. Have you communicated to the venue that they are obligated to pay you if the set is cancelled on the performance date?
  4. Have you discussed the conditions that release both parties from the agreement?
  5. Have you communicated to the purchaser regarding terms of your deposit and the remaining balance?
  6. Have you discussed with the venue about advertising control of your show?

Go back and review your performance agreement with the above questions in mind. If you’re uncertain, contact an entertainment attorney for a professional review of your agreement.

Supreme Court confirms that works must be registered before commencing copyright lawsuit

05 Tuesday Mar 2019

Posted by in Copyright, Intellectual Property, Legislation, Litigation, Supreme Court

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The much-anticipated ruling for Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al. has arrived. Yesterday, Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court, confirming that a work must be registered prior to commencing a copyright infringement lawsuit.

Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.

This ruling confirms the literal reading of 17 U.S.C. §411(a), which states that “no civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.”

Fourth Estate, a news organization, had argued that, because “registration is not a condition of copyright protection” under 17 U.S.C. §408(a), then §411(a) should not bar a copyright claimant from enforcing that protection in court once they have applied for registration.

Now it is clear that registration must be obtained before commencing a lawsuit. This means that copyright owners must be even more diligent about filing applications for their significant works. The time spent waiting on an application to register would normally remove any option of quick, decisive action by a copyright owner against an infringer.

The best option for late applicants will be the Copyright Office’s Special Handling procedure, which allows for registration in less than a week for an additional $800 Special Handling fee.

Justice Ginsburg’s opinion acknowledged the current administrative delay of the Copyright Office, acknowledging that Congress is in the best position to protect copyright claimants, either by increasing funding to the Copyright Office or revising the language of §411(a).

True, registration processing times have increased from one to two weeks in 1956 to many months today. Delays, in large part, are the result of Copyright Office staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow this court to revise §411(a)’s congressionally composed text.

This blog will begin to monitor the real-world impact of this decision and report back periodically.

Planning Your Digital Estate

04 Monday Mar 2019

Posted by in Just for Fun, Privacy, Tech Developments

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I’ve written previously on the importance of planning beyond one’s own death.  Simple planning now can prevent unnecessary headaches after you’ve passed. This is typically accomplished by preparing a will and/or obtaining life insurance.  But with the Internet and cloud computing increasingly dominating our daily lives, more adults are taking their lives online, often through social networking, online gaming, or blogging.  Consumers shop, pay bills, and bank online. Important accounts, documents, files and photos are now often managed exclusively online, almost always behind usernames and passwords.

Do you know what would happen to your blog if you die? What happens to the passwords and content of your multiple email accounts? Who, if anyone, would you want to control your Twitter, Facebook or World of Warcraft account?  Think about these questions now and speak to an attorney who can help you plan your digital estate.

Here are a few general guidelines:

Email Accounts
As a general rule, you own your email and electronic correspondence and you can leave this to whomever you choose in your will. However, if your family or executors don’t know your email passwords, they may have trouble retrieving it. Gmail will give access to email contents upon proof of death and proof of relationship.

Facebook and Social Networking Accounts
Facebook and other social networking accounts are slightly different than email accounts as the information on your profile isn’t as private as your emails – your profile is accessible and viewable by anyone whom you’ve granted access. Your profile also appears as a friend of countless others, and will continue to appear until the account is either closed or your friends delete you.

Facebook allows for the “memorialization” of accounts, where the accounts remain open as a tribute. There’s even a form you can use to report a user who has died. However, Facebook won’t release login information, so the account can’t be accessed, changed or updated.

Blogs and Online Content
An additional consideration for managing your digital estate arises for those of us who run blogs. Much like social networking and email accounts, online service providers such as WordPress are reluctant to release login details, even to an executor. If your blog is hosted on your own server or through a third-party hosting service, the task of accessing the site is further complicated and in some cases may be close to impossible.

If you’ve got a blog, you’ve also got intellectual property including copyright to your writings and any trademarks associated with your site. You may also have photographs, music, and other works that are published and maintained online. Copyright generally lasts for 70 years after the death of the author, so there’s a significant tail period of copyright protection that vests in your estate and, just like any other form of property, intellectual property can be bequeathed to a specific individual in your will. If the will does not specify who gets your intellectual property, the standard rules of distribution apply.

Online Worlds
Users spend a great deal time of time creating and managing identities in online worlds like World of Warcraft or Destiny.  But what will happen to these accounts upon your death?  World of Warcraft will transfer ownership of an account to an immediate family member upon proof of death, and the community has even been known to host virtual funerals.

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As with other estate planning stories, the moral is to plan ahead.  Here are your action items for planning the disposition of your digital information upon your death:

  1. Select a “digital” executor, someone who you trust to carry out your wishes with respect to your online information
  2. Tell your executor what you want done and give him or her the information needed to carry out your wishes.
  3. Prepare a list of your email and social networking accounts along with your login data and brief details on how to access the accounts.
  4. Update your will to include specific provisions for who will take ownership of your intellectual property and any data that you leave behind.

Counterfeit Bongs dominate the February Indiana IP Litigation Docket

01 Friday Mar 2019

Posted by in Copyright, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Southern District of Indiana, Trade Dress, Trademark

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Two photography cases, including one from serial filer Richard Bell, and a breach of franchise agreement lawsuit…other than that, the February Indiana IP litigation docket was totally dominated by filings by RooR International. RooR’s defendants are Indiana smokeshops and their alleged sale of counterfeit bongs.

RooR markets itself as “the premier manufacturer of glass water pipes by emphasizing the brand’s unwavering use of quality materials and focusing on scientific principles which facilitate a superior smoking experience.”

As you can see from the screenshot below, RooR International has gone on a recent filing spree to combat the sale of counterfeit products:

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RooR’s defendants, small smoke and vape shops from across Indiana, are accused of Federal Trademark Counterfeiting, Federal Trademark Infringement, Federal False Designation of Origin and Federal Unfair Competition. Heavy stuff.

Sample RooR Complaint

The other non-bong, non-Bell cases involve the breach of a franchise agreement and the unauthorized use of a photograph of a New Year’s Eve fireworks display.

Baskin-Robbins Franchising LLC, BR IP Holder LLC v. Big Scoops, Inc., David M. Glasgow Jr.

Bachner v. USA Halloween Planet Inc.

Protect your Baby by Preparing a Will

28 Thursday Feb 2019

Posted by in Intellectual Property

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It seems like there are babies and young children everywhere I look nowadays.  I’ve found myself giving the following advice repeatedly, so I thought I’d post it here for everyone’s benefit:

Protect Your Baby.  Prepare a Will.

Having a new baby will likely be one of your most wonderful and rewarding experiences. But planning for a baby means planning for both the good and the bad. Unfortunately, the “bad” may include your death or permanent disability while your child is still young.

If you want ensure that your children will be raised and provided for in the way you intend, you need to seriously consider creating a will that states who should take care of your children and their finances.

Undoubtedly, it’s best practice to prepare a will after the birth of your first child, and update the will before the arrival of any more children. Without a will, the state will decide who will care for your children and how your money will be divided, and there are no guarantees that the state will follow your wishes.

Before preparing a will, there are a few questions you must answer:

Who will be your child’s guardian?
Perhaps the most important question for parents when drafting legal wills is the question of who will be the child’s guardian. Think carefully about who you would like to raise your child in the event of an untimely death. Make sure you discuss this guardianship with the party in question before you draft the will. Discuss the things that may be really important to you for your children such as education, religion and family connection. Don’t wait too long before writing a will if you already have a child, as establishing guardianship is one of the most important things a parent can do.

What property is included in your will?
When you draft a will, you must think about what property will be included. You can be as specific or as general as you’d like when naming property. You can simply refer to your property as a body by referencing your estate, or you can break down specific or individual pieces of property that have special value, like artwork or collectibles. In the event that property isn’t designated in the will or a general term that encompasses the entire estate, it reverts to the state’s probate laws for distribution. You can handle disbursement of property a few different ways. If you’ve listed specific items of property, you can designate individuals to receive that property. Alternatively, you can simply designate who gets what portion of your estate, and let the named parties decide how to divide the property based on your allocations.

Who will be executor of your will?
After guardianship of your child, naming an executor is one of the most important decisions you can make. The executor is responsible for settling your estate after your death, and ensuring that your will is honored. An executor has to handle all the paperwork, liquidate assets, pay any taxes and distribute the proceeds according to the instructions in your will. Make sure you choose a trustworthy executor. If you don’t want to leave this burden to a friend or family member, choose a professional executor or a lawyer to handle the process.

Nobody wants to think about dying while their children are little, so unfortunately many people don’t. But now is the time to make plans and set them down in writing. Once you have the above questions answered, find a lawyer who can prepare your will. Wills are revocable, meaning you can always change them later, as necessary. However, setting something in motion now will be best for your children and give you peace of mind that it has been taken care of. Create a will now…and then relax and enjoy watching your children grow and prosper.