An IP Conundrum - How Many Different Country Songs Are There?

Students are often perplexed by the application of copyright in certain areas of the music industry.  For instance, at its core "the blues" shares a persistent three guitar chord progression and similarity of melody throughout the entire genre of music. There is a wealth of internet resources of material for songs that sound like other songs.  Sometimes lawsuits are brought and sometimes they are not. I am not an expert in this area of the law, but it seems to me that the distinction rests on the uniqueness of  the allegedly copied musical pattern. 

Below is a video comparing 6 Country Music songs. As it cleverly and indisputably establishes, they are the same song even to the point of being performed in the same musical key. Despite the song coming from different performers, different studios, different producers, etc. - the song are all one song. The melody is the same, the musical progression is identical, the songs are musically indistinguishable. I expect that the reason why we don't see lawsuits in this genre of music is because there is no unique quality to the music.  If you claim a copyright infringement by one artist, there are thousands of others who have the same claim against you. What are your thoughts?

How Can You Trademark "How?"

According to a Yahoo Finance article, "Dov Seidman, is in the business of helping companies create more ethical cultures. He has distilled that business to a single three-letter word: how. President Bill Clinton wrote the foreword to his book, How: Why How We Do Anything Means Everything.”€ So when Chobani Yogurt began an ad campaign highlighting their special filtering methods of manufacturing, their choice of slogan "How matters" (as in "how it is made matters") they ran into a trademark infringement claim from Seidman.

According to Mr Seidman, he thinks Chobani is using the slogan to show that it is an ethical company  - and that is his expertise. Apparently the idea is to buy Mr. Seidman's ethics programs, but if they work, you are not supposed to let anyone know.

It will be interesting to see how "How" is handled by trademark law and how the whole "How" thing comes out.

I suppose if "Eat More Kale" can be deemed to cause consumer confusion with "Eat Mor Chikin" then anything is possible.

Guest Blogger,Henry Lowenstein: Yes, We Have No Bananas!

Appellate Court Goes Bananas!:   Banana Lady "Slips" In Credit Union Lawsuit

Our students in the Legal Environment of Business courses often ask us if there is any control to what appears to be frivolous, abusive litigation against individuals and firms, often merely to simply try and pressure money settlements to avoid the expensive legal fees involved in litigation.  Every now and then, a litigant crosses the line such that a court rises to protect the integrity of the judicial process and halt for that moment abuses of the system.   Such was the case this week from the U.S. Seventh Circuit Court of Appeals in the matter of Conrad (aka “Banana Lady’) v. AM Community Credit Union (Case No. 13-2899, April 14, 2014.   Click here for the link to the story as reported by the Chicago Sun-News with link to the opinion by the Chief Judge, Richard Posner.

The “Banana Lady” represents an extreme example of abuse of the judicial system that not only was costly to defendants but in clogging the courts and impeding the effectiveness of the judicial system.  It also points out the growing intolerance of Federal courts to questionable if not de minimus attempts to improperly use intellectual property law (in this case copyrights) as a tool to bully questionable settlement payments rather than protect legitimate intellectual property values.  This case can be used in classes to emphasize both points and the costs to business of succumbing to settlements that encourage simply more litigation.

In the case of the “Banana Lady,” the Court of Appeals signals its intolerance and opinion (complete with pictures) that such suits will receive from the court the old song, Yes, We Have No Bananas and intolerance for like frivolous and vexatious lawsuit behavior in the future.  Those who try in the future will find Federal judges….well… .going bananas!  

I hope you enjoy this story and the serious lesson it leaves other than a judicial banana peel on the judicial floor.

Editor's Note: I have previously expressed the opinion that "frivolous lawsuits" typically share 3 common characteristics: 1) They are filed without the aid of counsel, 2) there is likely some level of mental illness exhibited by the Plaintiff, and 3) they are flushed out of the system without causing millions of dollars in taxpayer and/or defense expenses.

With respect to the "Banana Lady" case: 

1. From Judge Posner's decision:  "Proceeding pro se, Conrad has sued several credit unions in this case."

2. From the Chicago Sun-News Article: Banana Lady . . . has a history of making wild claims in her court filings, including comparing her legal opponents to the Unabomber and alleging that they hung out at the Kennedy Compound in Hyannis Port, Mass.

3. From Judge Posner's decision:  The district judge granted the defendants’ motion to dismiss the case.

Although the case did go on appeal to the Court of Appeals, it still was disposed of in a reasonably expeditious fashion without closing the courthouse doors to people who believe they have legitimate grievances. Frivolous lawsuits do have the effect of ameliorating what might otherwise become dangerous expressions of rage and frustration. Given the plaintiff's history in this case, Judge Posner's orders are absolutely justified.

Banana Boat Song:

Can I Use a Movie Line as a Song Lyric?

Attorney Gordon Firemark provides the answer and a little legal and business advice as well.

Artists' Works Copied by Big Business?

A number of artists are claiming that Cody, Foster and Co., a big wholesaler of ornaments and decorations, are ripping off their work. The report from Yahoo Shine seems to present pretty compelling evidence.  As does a flickr site compiled by an anonymous whistleblower. Read artist Lisa Congdon's blog post, "My Art Was Stolen For Profit and How You Can Help," about her trials and tribulations over this issue.  Read more, here.

I am speculating that the prospect of protracted litigation against a major, well financed corporation is daunting to a small independent artist. This is one of those situations where the law ignores the disparity of access to resources and presumes everyone has equal ability to enforce his or her rights. We should get our legal heads out of the sand and devise a system that can actually protect and encourage creativity. Otherwise, bullies always win.

Source of image below: http://lisacongdon.com/blog/2013/10/my-art-was-stolen-for-profit-and-how-you-can-help/

File Sharing Judgment of $675,000 Upheld

A Federal Appeals Court has upheld the $675,000 verdict in favor of the RIAA against former Boston University graduate student Joel Tenenbaum.  As originally reported in this blog, Tenenbaum had been sued for sharing songs that had copyright protection.  His plight attracted the services of famed Harvard professor Charles Nesson of "A Civil Action" fame.

This was not a case of a naive college students failing to understand the law and its ramifications. The court called Tenenbaum's conduct "egregious" in that he shared the files intentionally knowing that doing so was a copyright violation and continued to do so after several warnings from the RIAA.

The case explained:

Precedent / In The Air Tonight

I was previewing this video thinking it might provide a musical lesson about the concept of legal precedent.  It sort-of does. But what jumped out at me was another lesson on potential copyright infringement.   Compare and consider.

(Listen from :34 to 1:05)


(Listen from  0:53 to 1:22)

Lyric Rip-Off or Just a Pick Up Line?

In what is termed in the description for the video below as "perhaps the world's most groundless lawsuit," Ukranian pop singer Aza has sued Carly Rae Jepsen for sampling her lyrics in Jepsen's hit song, Call Me Maybe.

Aza:  "Call me. Here is my number."
Jepsen:  "But, here's my number. So, call me , maybe."

Hmmm. Shakespeare it is not.

Try to Fit That Into a One-Hour Prime-Time Slot

Last week the Trademark Trial and Appeal Board of the US Patent Office heard a challenge to the granting of a trademark to the Washington Redskins Football Team for the name "Redskins."  The Lanham Trademark Act prohibits the issuance of a trademark that:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;

 In 1992, Native American activist, Suzan Shown Harjo, challenged the prior issuance of the Redskins trademark on the basis of the Lanham Act language quoted above. In 1999 the TTAB ruled in favor of Harjo and the NFL appealed. In 2003, the US District Court ruled that laches barred the claims as the claimants had waited too long after reaching the age of majority to bring the claim. In 2005, the Court of Appeals upheld the laches ruling as to all but one claimant and remanded the case to the District Court for examination of that claim. The District Court ruled against the final claimant and in 2009, the Court of Appeals affirmed and the US Supreme Court denied cert.

In the meantime, in 2006, another challenge to the trademark was filed by younger Native American claimants who would not be subject to the laches defense. That is the case that was argued to the TTAB last week, 21 years after Suzan Shown Harjo filed her original challenge.

Hopefully, it will not take another 21 years for the legal system to embrace justice and common sense in upholding the challengers' claim against this patently offensive use of this symbol to objectify and denigrate a human race and culture.  It's a shame that the Board has no authority to award damages.

Update: NY Times 10/10/13: here

Suzan Shown Harjo. Source of image:  http://www.ahalenia.com/harjo/index.html 



Washington Redskins graphic. Source of image: High Court Punts Washington Redskins Trademark Case

Yankees Are Baseball's Only True Evil Empire...

...or so ruled a panel of three judges at the  Trademark Trial and Appeal Board.

“The weight of evidence submitted by [the Yankees] clearly demonstrates that the mark BASEBALLS EVIL EMPIRE would be understood by consumers to refer to the New York Yankees.” 
 - decision page 21

And with that, a Long Island woman will have to cease and desist selling tee shirts out of her garage featuring the Yankee logo and the trademarked phrase "Baseball's Evil Empire." The phrase was originally coined by Boston Red Sox owner Larry Lucchino to denigrate the Bronx Bombers.  But in true New York fashion, (I got your 'Evil Empire' right here!") the Yankees have embraced the moniker as a badge of honor, playing The Imperial March from Star Wars at games.

As far as baseball phrases go, it's not exactly, "Let's play two!" but with the backing of the law, it looks like it's going to stick.


The Imperial March:

Big Brother Busts Cyber Stealing

Big Brother is monitoring your illegal downloading.  And starting this week, he will send you letters telling you that he knows what you are doing.

Copyright scofflaws illegally downloading music, movies and videos will receive gentle reminder letters from their internet providers that their internet activities are being monitored and they have been busted. Participating internet service providers have agreed to "punish" repeat offenders by compromising their internet speed for several days as a concrete reminder of their prior bad acts.  Read all about it here.

Is this a breakthrough in policing the internet for illegal conduct?  Is this an historic partnership of law enforcement and private enterprise? Is it a further clarion call for an overhaul of intellectual property law and new business models for the entertainment industry?  Whatever it is, its Big Brother qualities are creepy.

Digital Life After Death

Who owns your Facebook account after your death? Suppose a teenager or young adult passes away.  Unless his or her parents had already "friended" the deceased, the parents will not have even have access to the deceased photos and other information posted there. Without account log-in information, parents or family will not be able to access the accounts to shut them down or remove offensive comments posted there by "trolls." Suppose the young adult was an artist with photos posted to Instagram or other sites. How can the family get control of their artistic works? What happens to your extensive digital music library? E-mail, social media, billing accounts, etc. - we are a connected society, but have few laws dealing with the nature of digital rights.  Is it "property" that passes by the state laws of intestacy?  To what extent can digital information be bequeathed in a will? Legislatures are starting to pay attention and to attempt to deal with these issues. What do you students think the law should be?

Below is an interesting video. The company featured here, Entrustet, purports to allow you to designate who should get your digital property in the event of your death. Or, to authorize them to delete material before anyone else can see it! However, by taking the position that your digital material is "property" doesn't that mean that only a valid will may designate heirs? The digital designations contemplated here would not meet the will requirements under any state law. It's also interesting how the company clumsily refers to the "dead person" rather than the more genteel "deceased."

Here is a news report on the original issue:

Trademark Fail: "Best **** in America"

The latest company to lose an attempt to trademark a platitude is Dunkin' Donuts.  Dunkin had attempted to trademark the phrase "Best Coffee in America."  The US Patent and Trademark Office rightly denied the request since the mark was not sufficiently distinctive. While many coffee drinkers, especially here in the Northeast US would certainly agree with Dunkin's claim (especially when compared to the bitter swill dispensed at the more popular coffee bistro named after astronomical male deer) this is simplye not teh kind of distinctive product identifier that trademark law embraces.  A previous loser in the  "Best in America" trademark attempts game was the Samuel Adams Brewery in Boston.  Once again, no argument from this reader about the veracity of Sam Adam's claim to the "Best Beer in America," but opinions may differ and Sam can't own the phrase to the exclusion of competitors.

See related post about express warranties, here.

While Dunkin' cannot trademark the phrase, they can certainly use it to hawk their coffee.  In this ad, they stake an equally non-empirical claim to "America's favorite cup o' joe."

Uh-oh, Uh-uh-oh, Not Such a Good Time

Can you make a copyright claim based on five notes and a couple of uh-oh's? Ally Burnett,a singer from Alabama has sued Carly Rae Jepsen and Owl City for copying elements of Burnett's original tune, Ah, It's a Love Song in the Jepsen/Owl City hit, Good Time.

Judge for yourself:

Why Universities Should Not be "Run Like a Business"

Recently, the University of Connecticut (my alma mater and my employer) notified a Connecticut High School that it must cease using a mascot logo that resembles the trademarked logo of the UConn Huskies. In showing such poor exercise of its discretion to enforce a legal right, UConn joins the ranks of the University of Missouri, Penn State and the University of Alabama; institutions that have famously exercised their substantial legal muscle to cause weaker parties to knuckle under the weight of an unnecessary and mean spirited exercise of legal rights.

According to reports, UConn notified the Morgan School, a public high school in Clinton, Conn. with fewer than 600 students, that it must cease using its Morgan Husky logo. The University alleges that continued use of the logo by the Morgan Huskies "could interfere with UConn's ability to effectively market and license the use of the logo."

Seriously? Apparently those husky emblazoned coffee mugs occasionally given out to the Morgan School teacher of the year are depressing the market for "authentically licensed" UConn Husky coffee mugs.

Here is another gem of a quote from a University official: “We’re looking for them to eliminate it from uniforms and so forth … and basically come up with a new logo that doesn’t serve as copyright infringement.”  Er ... or maybe that was trademark infringement.

In defense of the University's position, perhaps there might be some consumer confusion regarding the products of the 2 institutions. The way the UConn Huskies football team has been playing, could they conceivably be mistaken for the 1-4 Class S High School Morgan Huskies football team?

The first lesson in business ethics: Just because you have a legal right doesn't mean you have to exercise it. Exercise discretion. It's a lesson that is too often unheeded. A university, especially a public university, should take a leadership role in its state. That means that there are considerations that are more important than the bottom line. But then, that would be very unbusiness-like.

I hope none of you kids were hoping to dress up as a husky for Halloween. You may be interfering with the all important marketing strategy for State U.  I guess this is the price that you pay for having big time athletics - boneheaded decisions justified on the basis of "business."

Watch out UConn! A Canadian Territory wants its name back!

The registered UConn trademark:

source of image:http://www.sportslogos.net/logos/view/wypyv9joaq76f59es93jfgo0g

The Morgan School football field logo - that will cost $20,000 to replace.

Source of image: http://nhregister.com/articles/2012/10/22/news/shoreline/doc5085b39012285625970004.txt


The Morgan Husky trademark on the gym floor actually does not closely resemble this UConn trademark. It does look a little like a registered trademark that the University abandoned several years ago and does not use any longer.

source of image: http://articles.courant.com/2012-10-22/news/hc-morgan-huskys-1023-20121022_1_top-dog-husky-dog-uconn


The abandoned UConn trademark


source of image:http://theuconnhuskies.blogspot.com/

Who is the next?  The Hope Community Charter School (pre-k to 6)?  Will consumers soon be confusing them with the UConn Huskies?  How's their football team?

source of image: http://www.imaginehopelamond.com/staff.html

Watch out Prairie Trade Middle School!:


Source of image: http://schools.olatheschools.com/prairietrail/newsletters.html

Watch out Husky Safe-T-Break Valve, Co.

Source of image: http://www.spiglerpetroleum.com/OrderForm/Carroll-HuskySpecial.htm

And Husky Corp:

source of image: http://www.husky.com/

Jonathan, the UConn Husky Mascot:

source of image: http://www.savedbydogs.com/2012/03/univesity-mascots-and-your-personal-dog.html

A white dog - the next target?

source of image: http://thepoodleanddogblog.typepad.com/the_poodle_and_dog_blog/2012/10/its-another-remarkable-husky-story.html

The UConn fight song:



Sideways copyright infringement by someone named Allie. Watch out, Allie! The lawyers are coming.

Joel gets KaZaA-mmed

NPR reports that the RIAA's judgment against Boston University graduate student Joel Tenebaum in the amount of $674,000 has been upheld by a Federal District Court.  The case that was first mentioned in this post back in 2010 claims Tenebaum had illegally downloaded 31 songs and then made them available to others through the peer to peer file sharing site, KaZaA.  The District Court action follows remand from the 1st Circuit for the purpose of considering a remittur.  The District Court upheld the original judgment. (The oral arguments from the 1st Circuit are available on YouTube.)

Tenebaum has since gone on to finish his PhD, but still needs to figure out how to deal with this crushing judgment.  This is a cautionary tale for our students.  One that they, sadly, often ignore.  Perhaps playing the audio of the NPR report in class will help.

I know that I have posted this video before, but when these issues come up I can't resist the urge to post this social commentary from Weird Al Yankovic.

The World's Most Lovable Video Bootlegger

It's final exam week at UConn.  That means that beginning this week, posts will become intermittent through the summer. Luckily, there is some "good" news this week allowing the Legal Studies Classroom Blog to go into summer mode on a high note.

You've got to love the NY Times article about 92-year-old Hyman "Big Hy" Strachman of Massapequa, NY.  The WW II vet spends his days ripping bootleg DVDs of first run movies which he sends free of charge to the troops in Afghanistan. According to the article, Big Hy has spent about $30,000 over the last 8 years sending the discs to military chaplains - because he knows they will give away the discs instead of selling them.

Does Big Hy know about copyright law?

“It’s not the right thing to do, but I did it,” Mr. Strachman said, acknowledging that his actions violated copyright law. “If I were younger,” he added, “maybe I’d be spending time in the hoosegow.”

What does the movie industry think of all this?

Howard Gantman, a spokesman for the Motion Picture Association of America, said he did not believe its member studios were aware of Mr. Strachman’s operation. His sole comment dripped with the difficulty of going after a 92-year-old widower supporting the troops.

“We are grateful that the entertainment we produce can bring some enjoyment to them while they are away from home,” Mr. Gantman said.

Source of image: http://www.ibtimes.com/hyman-strachman-good-guy-pirate-92-year-old-wwii-vet-sends-bootlegged-dvds-troops-abroad-693550

Featured Case Update: White v. Samsung

This blog originally featured the Vanna White v. Samsung case in the post found here.  Included there is an image of the part of the Samsung ad that features the robot that implicates Vanna White 's identity.  Thanks to the website of Michigan Law Professor Jessica Litman, the full Samsung ad is reproduced below.  Thanks to Professor Litman for sharing and enriching the trove of resources available for us to use in our common educational mission.

Teller Sues to Protect Copyrighted Illusion

The Courthouse News Service reports that the illusionist performer named Teller of Penn and Teller has sued a Dutch performer for performing his copyrighted illusion known as "Shadows." the Dutch performer has since offered to sell the secret of the illusion. The lawsuit includes a request for injunctive relief to prevent this from happening.  The illusion is apparently copyrighted by Teller as a pantomime performance.

A video of the "Shadows" illusion follows:

Lawsuit Raises Question: "Have College Professors Become Digital Pirates?"

According to an article in the Technologist Blog, a lawsuit in Federal District Court in Atlanta raises this issue. The lawsuit apparently challenges a Fair Use claim by Georgia State University's e-reserves services which allow professors to post portions of textbooks for students to read online.

See related Fair Use post here.

Below are two videos on Fair Use for educators: