Thursday, December 5, 2019

Obama, Higher Ground and the Patent and Trademark Office

Everybody has problems with the Patent and Trademark Office. Even former President Barack Obama has problems with the Patent and Trademark Office.  I read an interesting story recently about how the former president and his wife, Michelle are setting up an entertainment production company.  In the course of organizing the new venture, Higher Ground Productions, they attempted to register a federal trademark for the name Higher Ground Productions.  The Trademark Office refused registration because of an earlier registration for a company known as "Higher Ground Enterprises" owned by Hanisya Massey.

The Trademark Office routinely rejects trademark applications when the examiner believes the marks are too similar and could cause confusion in the marketplace.  This can be extremely frustrating to the trademark practitioner because you cannot always predict when the Trademark Office is going to determine that marks are too similar – often their reasoning is unclear.  But there is no denying that "Higher Ground Productions" and "Higher Ground Enterprises" are pretty darn similar.

There has been some pretty funny reporting on the saga as the parties attempted to negotiate some kind of settlement.  According to the New York Times, at one point Massey requested screen rolls in some of the Obama's forthcoming productions.  However, the dispute appears to have become ugly with the Obamas now seeking cancellation of Massey's trademark on technical grounds based on alleged non–use.  This can occur when a trademark owner can be shown not to be actively using a mark. However,  in my experience there's a pretty low threshold needed in order to prove continued  use. 

 Maybe the Obamas just like the Stevie Wonder song-- but perhaps they should contemplate coming up with a new name…

Tuesday, November 19, 2019

Gimme Some Lovin'

            Sometimes I am  oblivious to the battles being fought by giants in my  own backyard.  I have just  aware of a case that was disposed of in the Middle District of Tennessee involving Willa Dean Parker and the widow of Homer Banks suing, among others, Stevie Winwood, his brother, Muff Winwood (real name "Mervyn" – who knew?) and Spenser Davis over the alleged copyright infringement of the song "Ain't That a Lot of Love" by the Spenser Davis Group's "Gimme Some Lovin".  There are a number of side issues in this case, as there often are, but the facts boil down to the following:

            1.         Willa Dean Parker and Homer Banks wrote "Ain't That a Lot of Love" in 1965.

            2.         The Spenser Davis Group created "Gimme Some Lovin" on April 5, 1966, and began recording it on June 9, 1966. And released it on October 28, 1966. 

            3.         “Ain't That a Lot of Love” was first released in the United Kingdom by Homer Banks on October 7, 1966 (prior to the famous Sam and Dave version). Sam and Dave did not release their version of the song until 1968. 

            In order to prove copyright infringement of a musical composition, the burden is on the Plaintiff to prove that the Defendant had "access" to the work and that the two works are "substantially similar" enough to prove that the second work was copied from the first work.  In this case, access seemed impossible to prove, since the Sam and Dave recording had not been released in England at the time the Spenser Davis Group created their iconic song.

            It seems that Parker and Banks tried to circumvent this by proving that there was an earlier version of the song by David Porter which could have been heard in the United Kingdom.  They also tried to introduce newspaper interviews by Spencer Davis, himself, where he allegedly admitted that "Gimme Some Lovin" was based on "Ain't That A Lot of Love".  The court rejected the articles as inadmissible hearsay ("a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted").  Hence, with no proof of access , the Plaintiff's case was thrown out.  There were other fascinating aspects of the case, - like the fact that Universal Music Group was sued as a Defendant, yet it actually had partial ownership of both songs in question and, hence, could not be sued for infringement under settled copyright law.

            It's kind of a strange thing.  I listen to the famous Sam and Dave recording of "Ain't That a Lot of Love" (as well as the Webb Wilder version) and don’t hear any real similarity to "Gimme Some Lovin".  Then I listen to the Homer Banks' version and the famous riff is, in fact, nearly identical. I couldn't find the David Porter version of the song, but Taj Mahal's recording from 1968 utilizes the riff as well.  I don’t know if experts were used in this case to prove that the riff itself could have come from an earlier source, as is often the case.

            The part that I find sad is that this  battle was taking place in 2017, 51 years after the records were first released.  It reminds me of the dispute between the Estate of Randy California and Led Zeppelin over the song "Taurus".  Why didn't the writers take action when the songs were new?  In my cynical moments, I wonder if this is what has become of the music industry and that these type of lawsuits will continue until we have no surviving songwriters of the rock era, just estates suing other estates over ancient riffs. 

Wednesday, October 2, 2019

Come Together: John Lennon and Morris Levy

The 50th anniversary of the release of Abbey Road got me thinking about the most bizarre Beatles related legal battle:  John Lennon's multilayered dispute with the infamous Morris Levy.  Levy was the colorful  and shady music business kingpin whose empire included Roulette Records, the Strawberries Records chain, nightclubs and numerous other enterprises. He was eventually convicted of extortion but was able to escape prison by dying.

 Abbey Road of course starts with Lennon's composition "Come Together," which features the line, "Here come old flat top, he come grooving up slowly".  Levy's publishing company Big 7 Music sued the Beatles' publishing company and Apple Records claiming that the song infringed upon the Chuck Berry classic "You Can't Catch Me," (which contains the line "Here comes a flat top, he was moving up slowly").  Morris Levy had obtained the copyright to the Chuck Berry composition from Alan Freed.  The lawsuit was apparently prepared for trial, witnesses deposed, experts hired, etc. when Lennon and Levy arrived at an ingenious settlement of the case.  Levy would agree to drop the suit if Lennon would  record "You Can't Catch Me," along with two other Big 7 songs for his next album. 

 The idea must have seemed simple to Lennon because he was planning to make his next album a record of covers of great rock and roll songs.  Levy's catalog contained a number of such classics including Lee Dorsey's "Ya Ya" and "Angel Baby" both of which Lennon pledged to record.  Beatle fans know that nothing is simple and it didn't really happen like this.  

 In what should truly become a feature film,  Lennon began the sessions for this album "Rock and Roll" with Phil Spector and there were reports of drug and alcohol fueled drama complete with Spector firing a gun in the studio (a bit of horrific foreshadowing).  Very little was accomplished before Spector abandoned the sessions and absconded with the master tapes.  While Lennon's representatives negotiated with Spector for the return of the tapes Lennon produced an album for Harry Nilsson  and completed his own Walls and Bridges, on which he recorded a charming but insignificant version of "Ya Ya" with his son Julian.  

Apparently Lennon decided to try and salvage the Spector tapes and record additional material for the album in New York.  Because Lennon had technically breached the settlement agreement by not releasing these recordings on his "next" album Levy became a constant presence in his life, flying him, May Pang and Julian to Disney World, taking him and his band to his farm in upstate New York to rehearse and somewhere along the line Levy got the idea that Lennon had given  him the right to sell the forthcoming record through television mail order advertising ("operators are standing by") on his ADAM VII label.  The facts are befuddling and common sense would indicate to  any rational person that the Beatles' exclusive agreement with EMI would prohibit a third party from releasing  any solo Beatle recordings but Morris Levy was not any typical record company owner.  Apparently Allen  Klein is involved in the story too and may have added fuel to the fire.  Unbelievably, Morris Levy took a rough mix of the recordings which Lennon had given him, slapped an out of date 1968 photograph of Lennon on the cover and began selling Roots:  John Lennon Sings the Great Rock and Roll Hits.  This of course to led to Capitol Records rush  releasing the Rock and Roll album,  Capitol and Lennon both suing Levy and Levy suing Capitol, Lennon and everybody else he could think of.  The reporting of the trial, brilliantly captured in Stan Soocher's book Baby You're  A Rich Man:  Suing the Beatles for Fun and Profit is fascinating, showing a side to Lennon rarely captured.  At the end of it all, the trial judge ruled that Lennon had in fact breached his original settlement agreement with Levy by not releasing "Angel Baby"  (it was posthumously released) but Levy  was enjoined from distributing  Roots,  Lennon was awarded damages for Levy's damage to his reputation from releasing substandard product and Capitol Records was awarded damages for lost profits.  

The Roots album has gone on to become one of the holy grails of Beatles collecting.  Originals are hard to find although counterfeit copies are somewhat easier to locate.  

The irony of all this is that I don’t think Levy would have prevailed in his original  lawsuit. Although the statutory defense to infringement known as  fair use was not codified as a at the time of the original 1970 litigation (it was added in the Copyright Act of 1976) it was still a viable defense and one could argue that Lennon's quote of a single line from a Chuck Berry song in his  song "Come Together" was not in fact copyright infringement.  Most of the case law (at least the case law prior to the "Blurred Lines" decision and the recent Katy Perry decision) would tend to support this theory.  On the other hand, Lennon's idea to simply record a handful of Levy songs to make the lawsuit go away makes a lot of sense.  Perhaps he was also thinking about what his former band mate George Harrison was about to endure with the "My Sweet Lord/He's So Fine" litigation.  But those are different songs and different stories.  

Thursday, June 20, 2019

For Those Wondering if They're Really Married

If there was any doubt before, it's now official.  It has been a custom for years for marrying couples to ask a friend to perform the ceremony for them.  I myself performed a number of marriages by becoming a "special judge" for the day.  I think the most common method though has been for the officiant to become a Universal Life Minister, or to be "ordained" by a similar entity.

            For years, the Tennessee statute on marriage has said that marriages may be performed by "all regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than 18 years of age, having the care of souls…" and "(2) in order to solemnize the rite  of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act."

            An opinion from the Tennessee Attorney General theorized that someone who becomes a minister online cannot be doing so by a "considered deliberate and responsible act", thereby throwing the legitimacy of online officiants into question However, until  recently this wasn't an issue; county clerks did not question the authority of the person signing the marriage license and presumably the only time this issue might come up would be in a divorce proceeding (i.e. where one party would argue that there was no valid marriage). 

            The new amendment to the law adds a section stating that "persons receiving online ordination may not solemnize the right of matrimony".  The question appears to be settled although I have read that groups are attacking the new law and it will probably end up in court at some point.  

            The biggest issue that people were concerned about was the question of whether their own marriages performed by a Universal Life Minister were valid.  The law gives some certainty in this area by stating that "if a marriage has been entered into by license issued pursuant to this chapter in whichanyminister officiated before July 1, 2019, the marriage must not be invalid because the requirements…have not been met".  This should cause some relief to those people wondering if they were legally  married.

Friday, June 7, 2019

More Aretha- Holographic Wills

It seems that I spoke too soon when I wrote my blog about Aretha Franklin dying without a will.  ( According to the New York Times she had three wills – or as the reporters described the documents "the scrawled papers which are dated between 2010 and 2014, are at times barely legible, with cross‑outs, marginal notes and some salty tangents".

Apparently two of Ms. Franklin's sons oppose entering the documents as wills in the probate proceeding.  I am not exactly sure why but it appears that in one of the documents she treated her oldest son Clarence differently than her other three children, which may or may not be because he has some sort of special needs.  The article stated that the final document  drafted in 2014 divided the estate between her children and grandchildren.  If  Franklin were to be determined to have died intestate, then the estate would be equally divided between the four sons.  Michigan (where Ms. Franklin resided at the time of her death) appears to have a holographic will statute similar to the statute we have in Tennessee – which provides that if the document is written entirelyin the testator's handwriting and signed by the testator and expresses an intent to operate as a will – it should generally be admissible.

The important point here is that a holographic will is perfectly legal but it must be written entirely in the testator's own hand (i.e. not typed and then signed) – this is a mistake many people make.  Also there must be a witness available who can identify the deceased's handwriting.

The court in Michigan is going to hold a hearing sometime this month to evaluate the new documents.  Whatever the outcome, it's nice to see that Aretha will probably have the last word. 

Tuesday, May 28, 2019

The Virtues

On the advice of someone I greatly respect, I just finished reading Benjamin Franklin’s Autobiography. It’s a short but fascinating book which I should have read years ago, On the negative side, Franklin must have been the nation’s first self-promoter and he controlled  the media of his time. He was also a racist and something of a misogynist. On the other hand, his clarity of vision, industry and self-motivation are as compelling today as they were nearly three centuries ago. 
I was struck by the fact that Franklin conceived of “The Virtues” as a kind of blueprint for living a good life. He carefully perfected and studied this list and then tried to work on one of the items every day. In that sense, besides his other inventions, Franklin probably created the self-improvement book genre. He was the Tony Robbins of the eighteenth century. Nonetheless, I found this list rewarding and I thought that it might be an interesting exercise to reproduce it here. Thus, here are Benjamin Franklin’s virtues:


            1.         Temperance

            Eat not to dullness; drink not to elevation.

            2.         Silence

            Speak not but what may benefit others or yourself; avoid trifling conversation.

            3.         Order

            Let all your things have their places; let each part of your business have its time.

            4.         Resolution

            Resolve to perform what you ought; perform without fail what you resolve.

            5.         Frugality

            Make no expense but to do good to others or yourself; i.e., waste nothing.

            6.         Industry

            Lose no time; be always employed in something useful; cut off all unnecessary actions.

            7.         Sincerity

            Use no hurtful deceit; think innocently and justly, and, if you speak, speak accordingly.

            8.         Justice

            Wrong none by doing injuries, or omitting the benefits that are your duty.

            9.         Moderation

            Avoid extremes; forbear resenting injuries so much as you think they deserve.

            10.      Cleanliness

            Tolerate no uncleanliness in bodies, clothes or habitation.

            11.      Tranquility

            Be not disturbed at trifles, or at accidents common or unavoidable.

            12.      Chastity

            Rarely use venery[1]but for health or offspring, never to dullness, weakness or injury of your own or another's peace or reputation.

            13.      Humility

            Imitate Jesus and Socrates.

[1]I had to look this one up.

Thursday, May 16, 2019

Small Claims Copyright Court

I just read that  the proposal for a Small Claims Court for copyright violations is gaining traction.  This is a bi‑partisan effort to create an entity called the Copyrights Enforcement Board which would allow a "fast track Small Claims Court for copyright owners seeking damages of up to $30,000.00" according to Digital News.

I was initially skeptical of this idea but now I think it has merit.  Not all copyright infringement cases exist on the same level as the "Blurred Lines" case.  For example, some of the copyright infringement cases I have handled include:

            1.         A photographer for who found his work done for a nonprofit agency used to advertise a radio station.

            2.         Another photographer who saw her self portrait used on a billboard.

            3.         A publisher of legal forms whose work was copied and sold by a small-time competitor.

            4.         On the defense side,  I once represented a record company owner who was sued by a music publisher for copyright infringement based on a song found on a long deleted album.  The plaintiff could only prove that onecopy of the album was available for sale and so he was awarded damages for that one copy.

Each of these cases (except for perhaps the last one) were very real and very important to the litigants but none of them could justify the cost of Federal Court litigation and really couldn't be properly handled without cutting corners, fees, etc.  It would be really useful if content creators had a lower cost way to protect their intellectual property.

I don't know all the details of the proposed Small Claims Court.  Participation is said to be voluntary – meaning that a defendant could opt out of this system and use the traditional Federal Court system.  I also don't know how the appeals process would work – would an appellant follow the usual Rules of Appellate Procedure or would one obtain a trial de novo as is the case in our Tennessee State Courts? There is additional criticism of the proposal in that it might further encourage copyright trolls. Would such a system encourage more frivolous lawsuits?

Either way I think this is an interesting idea which should be thoroughly explored