Duke v. Duke

The Daily Mail (UK) has this article about a trademark infringement lawsuit filed by the family of the late Hollywood legend John Wayne. The Wayne family wants to trademark the “Duke” name and image to sell specialty bourbon, since John Wayne was known for years as “the Duke.” But Duke University objects to the Wayne family’s proposed trademark. It will be interesting to read Duke University’s response (if any), but based on the Wayne family’s complaint, the Wayne family appears to have a strong case that their proposed trademark should be granted, since it’s in a different context (international class, in trademark lingo) than Duke University, and consumer confusion would be unlikely.

If my law firm, Johnson Law KC LLC, can help you with your copyright, trademark, or IP litigation needs, call me at (913) 707-9220 or email me (steve@johnsonlawkc.com) for a complimentary, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

The Future of the Music Industry

Taylor Swift has this WSJ op-ed on why she believes the music industry will continue to blossom as an expression of the creative arts. Leonid Bershidsky has this Bloomberg View column on why he believes the music industry is dying.

What do you think? What’s does the future hold for the music industry? Is it dead? Will it live to see another day? Will it live in another emerging or yet-to-be-seen form? Is Taylor Swift or Leonid Bershidsky right?

If my law firm, Johnson Law KC LLC, can help you with your copyright, trademark, or IP litigation needs, call me at (913) 707-9220 or email me (steve@johnsonlawkc.com) for a complimentary, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

 

Dark Horse: Copyright Infringer?

News is circulating of this copyright infringement lawsuit filed in Missouri’s Eastern District federal court (in St. Louis) Tuesday, alleging that pop music star Katy Perry and some of her friends’ song “Dark Horse” (2013) infringed the copyright of a St. Louis based Christian gospel/rap artist song called “Joyful Noise” (2008).

Music Copyright 101

Music copyrights have 2 parts: (1) the actual musical recording and/or performance (what you hear) and (2) the underlying lyrics and/or musical score (what you see). An artist can copyright both parts or just 1 part. The “Joyful Noise” artist argues that “Dark Horse” illegally used his rap/techno beat (part 1) – judge for yourself here (Joyful Noise) and here (Dark Horse). Is the Dark Horse music beat close enough to the Joyful Noise beat to be an illegal copy?

It will be very interesting to see how the defendants – including Ms Perry and Capital Records – respond, and what the Court decides on this copyright infringement complaint.

Joyful Noise Infringing Dark Horse?

The Dark Horse defendants may have a good legal argument that the Dark Horse copyright actually preceded the Joyful Noise copyright. Until 1976, the mandatory registration rule controlled – an artist did not have a copyright until the work was registered with the Library of Congress. But the 1976 Copyright Act adopted the optional registration rule – an artist does has a copyright in the work the moment the work is created and set down on paper, computer, recording, or whatever.

The Registration Silver Bullet

But there’s a catch 22 – registering a copyrighted work with the Library of Congress is prima facie evidence of the copyright (if done within 5 years of publication) and copyright registration is required before filing a copyright infringement lawsuit (Circular 1, pg. 7). The lawsuit (Lawsuit pg. 4, ¶20) says Joyful Noise was created in 2007 and published in 2008 on an album (Lawsuit pg. 4, ¶23). But the Library of Congress registration is still pending, having only been filed last month, on June 3, 2014 (Lawsuit pg. 4, ¶21 – maybe a copyright lawyer’s after thought?), 6 years after the fact, so the 5 year publication deadline (for prima facie evidence) passed in 2013 (Circular 1, pg. 7). And recall Dark Horse was published in 2013 (Lawsuit pg. 4, ¶21). Joyful Noise’s pending registration wasn’t done within 3 months of publication (2008) or before the alleged infringement (2013), so only actual damages and profits are available to Joyful Noise’s owners (if they win), not statutory damages and attorneys fees (Circular 1, pg. 7). Dark Horse was registered on 24 October 2014 with the Library of Congress, so Dark Horse beat Joyful Noise to the punch on copyright registration. Ironically, is Joyful Noise actually infringing on Dark Horse?

If my law firm, Johnson Law KC LLC, can help you with your copyright, trademark, or IP litigation needs, call me (913) 707-9220 or email me (steve@johnsonlawkc.com) for a complimentary, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.