How the Government Shut Down Affects Me

Like most Americans, I tend to be incredibly oblivious to things that do not affect me directly.  I can complain about Congress but if I don’t personally suffer  because of the current governmental shutdown I might not even notice it.  But I began to wonder, how does the government shut down actually affect me and my clients?  Turns out, a great deal.

  I do a lot of copyright work – registering copyrights, and enforcing my clients’ copyrights.  There is currently a sign on the copyright office web site that reads “The U.S. Copyright Office is closed and www.copyright.gov is not available due to the federal government shutdown … copyright registrations will not be processed until the Copyright Office reopens.”

This has the potential to become a huge problem. If copyright owners can’t register their copyrights, they can’t get into court to protect their rights.

 I also do a lot of trademark work.  I went to the USPTO.gov site and discovered that due to some pre‑planning the trademark office is using “prior year reserve fee collections” to remain open for “approximately four weeks”.  Then the trademark office would shut down except for a “very small staff” that would continue to accept new applications.  However,  presumably the new applications would not be processed. 

  Finally I wondered what the effect of the shutdown would be on the Federal Court System.  I learned that because the Constitution guarantees criminal defendants the right to a speedy trial, the Federal courts must remain open as an essential government service.  However, most commentators think that civil litigation would be suspended and that so‑called non‑essential employees (the people in the clerk’s office—who are pretty essential in my book ) will be furloughed without pay and the system will grind to a halt. 

 If the shutdown continues,  the ripple effects are going to be significant.  I was already disgusted after hearing about Head Start daycare programs being shut down as well as the exacerbation of the problems in the Veteran’s Administration but I did not think that my practice or my ability to serve my clients would be affected.  Apparently I was wrong.  

 This needs to end.  

Don't Mess With Lessig

Lawrence Lessig is not the kind of guy you want to piss off.  Lessig, a Harvard law professor, is one of the world's leading experts in copyright law; more to the point he is one of the pre‑eminent thinkers in the ever-expanding area of fair use and intellectual freedom. 

Lessig recently gave an online lecture and used part of the song "Liztomania" by the band Phoenix to illustrate a point about dance music and global Internet phenomenons. The lecture was posted on You Tube.  Liberation Music, an Australian company sent Lessig a letter claiming copyright infringement and threatening to sue for violating its exclusive rights. They apparently also sent a takedown notice to You Tube, under the DMCA provisions.  Lessig neither ignored the letter nor did he bother to send a reasoned response outlining his position.  He instead filed suit asking for a declaratory judgment that his use was a protected fair use.  He is asking for damages and legal fees

Lessig's suit is one of what appears to be a growing number of copyright cases using the concept of "copyright abuse" to challenge what might be accepted norms in copyright law.  To be sure, few would disagree that Lessig's use of the song in an academic lecture is almost certainly fair use; it's right there in the statue.  What is more interesting is that Lessig is using the courts and assuming the role of plaintiff to prove his point.  Robin Thicke has done the same thing with his lawsuit against Bridgeport Music and the Estate of Marvin Gaye, filed in response to their claims of copyright infringement with his song “Blurred Lines”. The Lessig case, if it goes to trial, may help academics gain a better understanding of what is permissible in the area of fair use and scholarship.  It might also give copyright owners pause before sending cease and desist letters and sending take down notices to YouTube and other outlets. 

The Lawyer/Business Person Dichotomy

             "You are not a businessman."

            " And you  are not a lawyer."

            This was the substance of a spirited "discussion" I had with a client a couple of weeks ago.  The exchange  has stayed with me because I think it illustrates an important and often-overlooked distinction.

            I wish I was more of a businessman.  I think all solo lawyers are by definition entrepreneurial but after three decades of doing this, I know that I lack a number of the fundamentals of business acumen.  However, I am confident that I make up for that deficit by being analytical, by being able to evaluate risk and most of all by being aware of what needs to be done to protect the client.

            There is the rub.  Not all clients want to be protected.  A lawyer (at least the ones who do their job) often gets caught between trying to advise the client to do the prudent thing and the client's other strategic goals.  If you read enough advertising and marketing materials, you will see those ads by lawyers who boast that they excel at "bet‑the-company" litigation.  This always strikes me as foolish.  Only in the most dire of circumstances would a businessperson ever decide that it is worth it to "bet the company".  I have tried to make one of my mission statements :(there, that's a business term isn't it?) that I "help people find solutions to complex problems".  That really is the challenge where law and business intersect. In other words, a lawyer should help to advance a client’s goals while at the same time protecting the client’s interests. Sometimes that means trying to protect the client against themselves.

            This can play out in many ways.  In transactional work, it could mean knowing approximately how much you can ask for without blowing a deal.  In litigation it is much more complex.  Any lawyer will tell you that settlement is always preferable to risking a trial; there are too many variables.  Sometimes there's a lot of posturing, like an expensive game of chicken.  We like to think that the world is a rational place.  The older I get,  the more I realize that this is a fallacy.  In the end, there's going to be a constant struggle between the particular kind of mindset it takes to succeed in business and analytical lawyerly risk evaluation.  This is not a bad dichotomy, it keeps us all employed.  Sometimes though,  it is startling to realize that it is in fact a very real dichotomy and one that can often cause tension in lawyer-client relationships.

Disclaimer of the Month

Disclaimer of the Month:

"This artwork does not constitute  any affiliation with, sponsorship or endorsement by any celebrity that the artwork may resemble."

From the creepy Dead Ringer Look-Alike Contest sponsored  the otherwise excellent Moe's Southwest Grill.

Battling Beatles Tribute Bands- can you copyright a wig?

I could probably spend all of my free time reading about lawsuits involving the Beatles.  Here’s the latest.  The producers of the Broadway Beatles’ tribute show Rain have just sued the producers of another Broadway tribute show, Let It Be alleging copyright infringement among other cause of action.  The complaint apparently claims that the second production contains similar musical arrangements, between song patter, background artwork and (wait for it) wigs.

The lawyer in me has to ask – how can the producers of Rain claim a copyright in any of this?  It is four guys, dressed as the Beatles, acting like the Beatles, playing Beatles’ songs.

Digging into the case. I see it goes deeper than that: the producers of both shows were working together in some sort of joint venture that went bad so the suit may be more about the contractual relationship than anything else but the copyright claims are certainly odd.

From a casual observer, it seems that the world of tribute bands in general can be fairly litigious.   I came across an interesting law review article on the subject a while back: http://tripaldredgelaw.blogspot.com/2010/08/more-on-tribute-bands.html

 It almost seems like a strange kind of sub culture, but having seen more than a handful of these groups one has to appreciate the skill and work involved in learning how to replicate the Fab 4, or any other band for that matter. Still, I don’t think there is much original expression (for copyright purposes) going on here.

It will be interesting to see how this plays out.

Bob Dylan, Cliff Richard and UK Copyright Law

I have been reading some interesting articles lately about the changes in English and European copyright law and how different copyright owners have dealt with them.  Until recently, British law provided that sound recordings entered the public domain 50 years after their initial release.  I sort of noticed that the last time that I was in the HMV Store in London and saw a number of dodgy-looking CDs featuring early jazz artists and rock and roll from the 1950s.

            It appears that artists and record companies led an appeal to change the law.  Their symbolic leader was Sir Cliff Richard, who became a figurehead for the new law much like Walt Disney did for copyright extension in the United States.  As Evan Marshall writes in Record Collector "and so it came to pass that Cliff's law is about to take effect and this year should see a change to the legislation governing copyrights which extends the protection to recordings from 50 years to 70 years."

            To dig a little deeper, artists like the Beatles, Bob Dylan and the Rolling Stones essentially escaped by the skin of their teeth.  For example while the much bootlegged Beatles recordings from the Star Club, the Decca auditions from 1962, the Beat Brothers recordings and even the single "Love Me Do" and "P.S. I Love You" are technically in the public domain in the United Kingdom, the remainder of their catalog is safe for another 20 years.

            The most interesting development from this UK copyright law change came from the Bob Dylan camp.  Recognizing that the new law would protect only recordings that were released within the last 50 years – and was not retroactive, Bob Dylan's label Sony released what looks to be its own bootleg, called The 50^th Anniversary Collection (in France and Germany it's called the Copyright Extension Collection Volume 1).  The collection is apparently comprised of four CD-R's with a paper insert listing the tracks.  I haven't seen a complete track listing but the set appears to include 24  outtakes from the Freewheelin' Bob Dylan plus some well-known live recordings like the Finjan Club and the so‑called Minneapolis Hotel Tape.  Dylan fans know that there is a treasure trove of this stuff floating around out there.

            This collection was allegedly limited to 100 sets per country so the purpose was not to make money.  Also the very process of releasing the material (some of which was truly unreleased and unavailable before) makes it available to the legendary enormous Bob Dylan bootleg audience.  Thus Sony must have felt that the security of copyright protection for these songs was worth letting them get into the hands of Dylan enthusiasts.  As such, this is a fascinating example of a copyright owner taking a calculated risk to be able to secure the benefits of copyright law.  I'm sure there will be more developments in this area.