Category Archives: Music

HIRING: IP & ENTERTAINMENT ATTORNEY

Our Santa Barbara firm is growing, and we are looking to immediately hire a full-time, career oriented attorney with 3 – 14 years’ experience to join the team. We have an eclectic practice, the foci of which are entertainment (filmed entertainment, music, publishing, and licensing), non-patent intellectual property (trademarks, copyrights, and trade secrets), Internet, business, and litigation in state and federal courts. We work with entrepreneurs, start-ups, and maturing companies, serving as outside general counsel, and represent a wide variety of businesses, including multi-media companies, music publishing companies, film and music producers, artists, photographers, songwriters, and others. We are looking for someone wanting a high quality, high energy, low key environment, who values relationships, innovation, and technology; is resourceful; and operates (or is willing to operate) on the principle that “THERE IS NO BOX.” Law review, great writing skills, and/or equivalent problem-solving and collaboration skills are highly valued here. We are willing and able to mentor the right person in any areas that may be needed. A book of business (small, medium, or large) is welcomed, although not necessary. This position is open now. Please let us know if you are the right person or know someone who is.  You may send resumes and writing samples to miblawgrp@gmail.com.  Please view our website at mbergerlaw.com and our LinkedIn profile at https://www.linkedin.com/in/matthewberger/ for more information about who we are and what we do.

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Are the Turtles Certifiable? Music Industry To Litigate Pre-1972 Public Performance Right

There’s an interesting case percolating in the Court of Appeals dealing with the Turtles and Sirius XM radio. Here is an excerpt from “Copyright Litigation Blog” by Ray Dowd (the entire blog post can be found here: http://archive.feedblitz.com/445362/~5153291/25405111/1462521c88182b58dcf7fc1a6dd57035):
 
Are The Turtles Certifiable? Music Industry To Litigate Pre-1972 Public Performance Right @ New York Court of Appeals In Albany.
 
On April 13, 2016, the United States Court of Appeals for the Second Circuit “certified” the question of whether New York common law provides a right of public performance to owners of pre-1972 sound recordings to the New York Court of Appeals, which is New York State’s highest appellate court.
The “Second Circuit” is a federal court, just below the U.S. Supreme Court, that has appellate jurisdiction over all of the U.S. District Courts in Connecticut, New York and Vermont. The “certification” came about because the band the Turtles complained that Sirius FM radio was copying, caching, and broadcasting their pre-1972 sound recordings.
 
* * *
 
“Certification” means that the Second Circuit asks the New York Court of Appeals to decide an important question of New York law.
Here is what the Second Circuit considers in determining whether to “certify” the question to the New York Court of Appeals:
(1) whether the New York Court of Appeals has addressed the issue and, if not, whether the decisions of other New York courts permit us to predict how the Court of Appeals would resolve it;
(2) whether the question is of importance to the state and may require value judgments and public policy choices; and
(3) whether the certified question is determinative of a claim before us.
 
Here is Judge Guido Calabresi’s explanation of the issue certified:
In 1971, Congress amended the Copyright Act to grant limited copyright protection to sound recordings fixed on or after February 15, 1972, while expressly preserving state-law property rights in sound recordings fixed before that date. See 17 U.S.C. § 301(c). Later, Congress created an exclusive performance right in post-1972 sound recordings performed by digital audio transmission. See 17 U.S.C. § 106(6). Performances of post-1972 sound recordings transmitted by other means, such as AM/FM radio, still do not enjoy federal copyright protection. Because Appellee’s recordings were fixed before February 15, 1972, they are protected, if at all, by state copyright law. While New York provides no statutory protection to owners of pre-1972 sound recordings, New York common law does provide certain rights to copyright holders in these recordings. See Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 563 (2005) (Naxos II). As a result, the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership.
 
Judge Calabresi has left the “policy choice” as to whether to recognize the right to the New York Court of Appeals. Many law professors and folks in the broadcasting industry have filed amicus briefs, guaranteeing that the Amtrak to Albany will be booked on argument day.