Music Publishing Rights Dispute Throws Lady Marmalade Songwriter’s Royalties into a Black Box, a Lesson in Music Publishing

My mom gave me an AM radio with an earplug when I was 10. There I discovered summer pop music and the positive girl vibe of Lady Marmalade.  While Patti LaBelle’s 1974 earworm of a performance made Lady Marmalade famous, the lyrics and music were created by co-songwriters Bob Crewe and Kenny Nolan. Nolan wrote numerous famous songs during the 1970s as a singer-songwriter, and co-writer with Crewe and other songwriters. Many of the songs, including Lady Marmalade and My Eyes Adored You, the Frankie Valli chart topper, were huge hits. (more…)

Pinkerton Duels with Wild West Video Game Maker in Trademark Infringement Lawsuit

In an unlikely matchup, a new trademark infringement lawsuit pits a 165-year-old brand against the maker of one of the hottest video games on the market. The case shines a spotlight on two key issues: the duration of trademark rights and the notion that infringement claims require “trademark use.”

In less than three months, Red Dead Redemption 2 became the highest selling video game of 2018. Set in the 1800’s U.S. Wild West, Red Dead 2 is as much a film (with a main storyline that unfolds over more than 60 hours) as it is an interactive action-adventure game with over a hundred “missions” for the player to navigate the story. It was released to universal acclaim and several “perfect” scores from leading critics, due in large part to the game developers’ creation of an immersive and complex environment with a relentless commitment to historical accuracy and detail. Red Dead 2‘s developers, Take-Two Interactive Software and Rockstar Games, spent over seven years with the efforts of more than 2,000 people to create a game with more than 500,000 lines of dialog and 300,000 animations.  

Red Dead 2 is widely celebrated for its realism and historical accuracy. The Guardian noted that the developers aim to provide players with a wild west fantasy so authentic that “you can forget it is not real.” Other historically and geographically accurate details (including flora and fauna, music, technology, and wildlife) contribute to the game’s believable and authentic experience. Even the birds are location-appropriate and sing with accurate pitch. Such commitment to realism has garnered attention from unlikely sources: the Audubon Society praised the game’s inclusion of 200 distinct, interactive species of animals and 40 different plant species.

In one of the 100+ “missions” throughout Red Dead 2‘s story, fact meets fiction when the game’s protagonists rob a train. The owner of the train hires Pinkerton security agents to find the culprits. In a cinematic cut-scene, two men introduce themselves to the main character as agents of the “Pinkerton Detective Agency, seconded to the United States government,” and tell him he’s a “wanted man” with a bounty on his head. The detectives are dressed in bowler hats, red vests, ties, and grey coats – apparel typical of the real Pinkerton detectives. They also wear silver shield-shaped badges on their chest, and at times, the “Pinkerton” name can be seen. It is the same badge that the Pinkerton National Detective Agency used from 1850 to 1925. The Pinkerton detectives make appearances in ten of the 100+ game missions.  (more…)

Your Image Here: The NCAA Settles with Athletes Over Rights of Publicity

We’re all familiar with video games involving computer-generated depictions of real-life athletes; they are a multi-billion dollar industry.  Under pressure from consumers to make such games more and more realistic, software companies like Electronic Arts, Inc. have mined team rosters to allow gamers to field virtual versions of their favorite sports teams: a virtual Peyton Manning with the same height, weight, jersey and number, skill set and even facial features as the real Peyton Manning can be fielded alongside the rest of the virtual Denver Broncos®.  The NFL Players Association receives roughly $35 million annually from EA to compensate NFL players for consumers’ ability to tackle a virtual Tom Brady with a virtual Terrell Suggs.  Video games depicting college athletes and teams similarly utilize the likenesses and characteristics of those athletes.  Unlike the pros, though, student athletes are not paid for this.

That is, until last week, when a class-action suit brought by several NCAA athletes settled against the last remaining defendant, the NCAA, for $20 million.  Last week’s settlement followed a $40 million payout by EA and the Collegiate Licensing Co., the organization authorized to manage licensing rights on behalf of NCAA institutions. (more…)

Fan Fiction Gets Weird

Popular author L.J. Smith of the Vampire Diaries series was terminated by her publisher and replaced with a ghostwriter. Some fans are content to continue reading the now ghostwritten series. Other fans are buycotting. What did L.J. Smith do? She is writing new Vampire Diaries stories as “fan fiction”. Fan fiction is understood as meaning stories written by amatuer writers based on their favorite book, television or movie characters.
While some media companies routinely prosecute copyright infringement lawsuits against fan works, others have embraced fan fiction, such as the publisher of Fifty Shades of Grey series. Originally fan fiction (or slash fiction)based on the Twilight series, Random House successfully published the books after the author removed the Twilight characters.
The Wall Street Journal reports that Amazon has been making deals with publishers and fan fiction writers for the rights to use characters and fan writing to identify new blockbusters like Fifty Shades.

No “Happy Birthday” for Trolls? Filmmaker seeks public domain judgement on song’s copyright

“Happy Birthday to You” is protected by copyright? The song is based on the tune from “Good Morning to All,” written in the late 1800’s. Over the years families adapted the tune for singing birthday greetings. Vexed with paying synch fees for use of the song in a film, producer Jennifer Nelson of Good Morning Productions asked a court to determine that “Happy Birthday to You” is in the public domain. Read her story at the NY Times. The case is great news! The “Happy Birthday to You” copyright claim begs several important public domain questions. (more…)

Maryland General Assembly approves $25M in film production tax credits.

Did you hear the roar? Opening Day is not until Friday in Baltimore, but Maryland’s film and television crew base  and hundreds of small businesses are cheering the General Assembly for extending the film production the tax credit, and approving an additional $17.5 million in tax credits for eligible televison and film projects in 2014. The story was different in 2009 when the then-existing film incentive program had all but lost its funding. Maryland’s storied crew base scattered to jobs on productions in Louisiana, Michigan, Ohio and other states with active incentive programs because no film or television projects came to Maryland.  The Maryland Film Production Employment Act of 2011 converted Maryland’s incentive program from a grant program to a better-funded tax credit program, with special incentives to attract television series. The new program was immediately successful,  bringing Maryland’s film and television crew members home to work on great projects like HBO’s VEEP and Netflix’s House of Cards. Senate Bill 183,  sponsored by Senator Ed Kasemeyer and passed today in Maryland’s General Assembly, maintains the current program of up to $7.5 million annually in film tax credits through 2016 and increases the ceiling to $25 million for 2014. OberIPwatch contributor and Maryland Film Industry Coalition chair, E. Scott Johnson, quoted in yesterday’s Business Monthly, said that the increase is

“really a testament” to how successful the previous bill, the Maryland Film Production Employment Act of 2011, has been.” How successful is that? “It’s worked so well that it tapped out,” said Johnson, “and we had to borrow some funding from future years to keep ‘VEEP’ and ‘House of Cards’ shooting here this year.”

Not everyone is a fan. The Sun reports that some legislators like Baltimore County Del. Kathy Szeliga felt (more…)