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For reasons I can’t exactly put my finger on, in the last three weeks I’ve had the great fortune to see a series of remarkable live musical performances. They range from Eric Clapton to Los Lobos, KD Lang, Daniel Lanois’ Black Dub, Steve Poltz, Lucy Schwartz, Bushwalla and Black Joe Lewis and the Honeybears. I know I keep reading that the music business is in trouble. And I’m sure it is. But there’s nothing wrong with the music that’s being written and performed. Great music is still out there. For my money, there is still no substitute for seeing a great performer do it live. The music business may be having trouble figuring out how to adjust to the changes brought about by the rise of the Internet, but as long people LOVE music – and I’m betting that’s never going to stop – there will always be a way for great music to get out there. Just as long as people who love it support it.

It has been our experience that almost all screenwriters, when given the chance, will pitch their screenplay to a studio, production company, producer, or the like without fully understanding the legal consequences of this type of disclosure. When submitting a creative work to any third party, it is not only wise – but necessary – for screenwriters and their agents to be knowledgeable about the current legal standards for protecting a creative work. Copyright protection and “idea submission” laws are constantly changing and it is hard to know for sure how and if your ideas will be protected. Take the Benay brothers for instance. They collaborated on a screenplay in the late 1990’s entitled The Last Samurai. They took the right first step and registered the copyright in their screenplay with the U.S. Copyright Office. Their agent pitched their screenplay to Bedford Falls Productions, Inc., an affiliate of Warner Bros. Entertainment, and thereby created what the brothers claim was an “implied contract.” But, as fate would have it, the studio passed on their idea – only to later release their version of a film called “The Last Samurai” starring Tom Cruise.

The Benay brothers naturally filed suit against Bedford Falls and its affiliates for copyright infringement and for theft of their idea. Recently, the 9th Circuit Court of Appeals rejected their claim of copyright infringement due to their failure to prove substantial similarity under their two-part similarity test: proof of extrinsic and intrinsic similarity. However, although the brothers lost their copyright infringement claim, they were able to convince the court that there might have been a breach of an implied contract to pay them for the use of their idea(s). In other words, the case will now be sent back to the trial court to determine if the tacit agreement made between the brothers’ agent and the folks at Bedford Falls was not honored and whether the Benays should be compensated for the use of their ideas.

Moral of the story: 1) Register your copyright with the U.S. Copyright Office; and 2) make sure your pitches to third parties are clear that your expectation is that you will be compensated if they use your ideas even if they don’t use your screenplay itself.

Well, after two shortened work-weeks and corresponding long weekends, the world seems to be slowly getting back to the business at hand. Us too. Having made it through 2009 with relatively few bruises and quite a few bright moments along the way, we are cautiously optimistic about the new year. The first task we’ll tackle will be to offer up some predictions about coming developments in the world of intellectual property and entertainment law. Then we will roll out several new services we think our clients will be excited about. In the meantime, if you have any topics in the IP or entertainment law area you would like to hear about, please let us know and we’ll do our best to find something interesting to say about them. Onward.

Should cellphone companies have to pay a public performance royalty each time a music ringtone plays in public? ASCAP (the American Society of Composers, Authors and Publishers) thinks so and has filed a lawsuit against ATT to prove the point. Here is a brief article that discusses this issue.

“Catcher In The Rye” is one of the most popular novels of the last sixty years, but it is shrouded in mystery because “Catcher” author J.D. Salinger has become one of the most famous literary recluses since the publication of the book. Now someone totally unconnected to Salinger has decided to publish a “sequel” to “Catcher In The Rye” without Salinger’s approval. The resulting dispute is now in court. Here is an interesting article about the lawsuit. Why is this important? Because the court will have to decide whether a pure literary character like “Catcher In The Rye” protagonist Holden Caufield is subject to copyright protection. If so, publication of the sequel might be stopped unless the author can somehow get Salinger’s approval. Whether or not a literary character like Caulfield is subject to copyright protection will involve an analysis of the “Fair Use” defense to claims of copyright infringement. For a fascinating overview of the “Fair Use” doctrine, see our February 1, 2009 blog entry.

Facebook has just announced that as of 12:01 AM (Eastern) this Saturday, June 13th, it is changing the way it creates and registers user names and their related URLs so that instead of a somewhat random number like “id=592952074” that is associated with a Facebook member’s user name, Facebook will be modifying the format to allow a much cleaner URL that can include the user’s real name or company name. For example, the new user name will appear as “facebook.com/branfmanlawgroup.” Facebook claims that this will allow people to have an easy-to-remember way to find its members.

Sounds ok?

But here’s where it gets interesting and dangerous: Facebook is going to allow its members to register these new user names and URLs on a first-come, first-served basis and will allow the user name to include the user’s name OR someone else’s name or trademark – including yours. Why Facebook just announced this policy this week and is implementing it so quickly without giving trademark owners time to analyze and address the situation is something of a mystery.

We believe this means that trademark owners must immediately register their trademarks with Facebook as a way of stopping someone else from using your trademark as a Facebook username. Here is a link to Facebook’s Form for Preventing Registration of a Username:

It’s free!

Trademark owners must provide a trademark registration number. There is no mention by Facebook of how it will handle a trademark that is represented by a pending trademark application as opposed to an actual issued registration, but we are advising our clients to register marks that are the subject of a pending application by entering the application serial number where the registration number is asked for or to enter into their Fictitious Business Name Statement number if they do not have a pending application. We can all sort out later how Facebook is going to deal with this issue. Presumably Facebook is going to block the use of that trademark as a username by any of its members once the form has been completed and submitted.

If a company misses tonight’s deadline, Facebook will feature a grievance procedure allowing brand owners to report that someone’s username infringes on their intellectual property or publicity rights. How that will work in the real world is anybody’s guess.

The new Facebook username policy is, of course, a two-sided coin: on the one hand trademark owners will want to register/protect their trademarks with Facebook today in order to protect their brands from cybersquatting by unauthorized third parties; on the other hand trademark owners may want to set up their own Facebook accounts in order to take advantage of owning some cyber real estate to promote their products and services on what is currently one of the most popular social networking websites around.

There is more that can be said about all of this, but given the shortness of time we are sending out this brief announcement now. We recommend that you take care of this now by either handling it yourself or assigning it to someone in your organization. If you would prefer that we handle it for you, please let me know. If you are already a client of ours, we obviously have a list of all of your trademark registrations and applications handy and can complete and submit the form fairly quickly and easily for you.

“Any fool can make things bigger, more complex, and more violent. It takes a touch of genius – and a lot of courage – to move in the opposite direction”. – Albert Einstein.

We find ourselves constantly trying to walk that fine line between simplicity and complexity in helping our clients structure their business dealings in general and their contracts in particular. Often times it is a real tug of war. We came across Einstein’s quote today and thought it neatly addressed the challenge.

The video quality may not be that great (click on the HQ button if you can), but try out this little video clip Why is this important? Because great music is timeless, inspirational and transcendent and I defy you not to feel a little bit better after having watched this. By the way, that’s Ron Wood of the Stones in the backup band.

It’s March, so that must mean it’s time for one of the most interesting and happening music festivals and conferences in the country: SXSW (South by Southwest) in Austin, Texas. Click here for a link to a report about SXSW which is set to open tomorrow.

Why is this important? The economy may be in a recession, CD sales may be down, but the world still needs and wants new music. Even in a down economy, there is still great music being made.

Once again I am digressing from my goal of writing about interesting intellectual property and entertainment law matters, but this item seems rather important: it turns out that the “free” credit reports advertised in all those cute TV commercials with the guy working in the fish amp; chips fast-food joint and guys driving around in their old beater car aren’t really free after all. That’s because you have to buy another product like an annual credit reporting service in order to get the “free” credit report. In response, the U.S. government – in conjunction with the three major credit reporting agencies – have created a website that does in fact offer a truly free credit report without any strings attached.

Why is this important? It’s important because these days in particular knowledge is power and knowledge about the state of your credit is particularly powerful.

P.S.: On a lighter note – don’t forgot to check out “Lydia The Tattooed Lady” in my March 10, 2009 blog entry.