Let us Now Praise the Boy King Of Tokyo

I can’t remember the exact year I actually met Bill Lloyd but I remember that I heard him before I met him.  Vanderbilt’s radio station played his song “Feeling the Elephant” often.  Having just moved back to Nashville to begin a career in entertainment law, I took this as a good sign.  Nashville was producing power pop – with great lyrics and lots of guitars and I was in the right place.

                I finally met Bill through my dear friend Mary Divney.  For some reason we ended up at Bill’s apartment and I admired his record collection – just like my own, only on steroids.  Since that time I cannot tell you the number of artists Bill has introduced me to or increased my appreciation of (the Beach Boys for starters). 

                But all of this is kind of insignificant next to the fact that Bill has been a great friend for the past 25 years or more and I’ve had a rare vantage point to see his development as an artist and a song writer.  Bill has had a fascinating parallel career as a successful country song writer/artist and as an indie rock solo artist. The music that Bill has recorded with Foster & Lloyd is cool (and I think has developed an almost archetypal sound in country music) but for my money, its Bill’s solo albums (five proper albums plus scads of compilations, etc.) that set him apart.  I was always proud of the fact that my law partner and I were able to negotiate a “solo indie rock” exclusion into Foster  & Lloyd’s RCA recording agreement and that his first solo album came out about the same time as his major label country debut.

                Bill’s solo records have never really varied sonically over the years, and that’s a good thing: lots of guitars, drums and smart insightful lyrics. Part of the reason for this is that he’s used many of the same cast of characters on his records.

                Which brings us to the new album: “Boy King of Tokyo”.  The difference on this album is that Bill plays all of the instruments as well as handling all of the vocals.  This of course puts him in that unique camp of overachievers like Paul McCartney, Todd Rundgren and Emmit Rhodes.  It’s also astonishingly tight – you’d never know this was one guy.  The instrumentation does not detract from the quality of the songs.  “Boy King Tokyo” is a wry  bit of autobiography (dig the cover art), “The Best Record Ever Made” is a nice sequel to the earlier “Cool and Gone, “ and the songs “Let It Slide,” “Up in the Air” and “Where Nobody Cares at All” all feature that  rare combination of rock and roll sensibility and (God help me) maturity. 

                There’s a lot more here.  You need to own all of Bill’s records but if you don’t have them this is a good place to start.  The CD is available through Bill’s web site (billloydmusic.net) and through all the usual download sites.  Here’s to another 25 years of friendship and great records.

Those Official Looking Trademark Notices

I think that this is what the social medial folks call “trending”. I have had three calls in the last couple of weeks from clients who wanted to know why they were being asked to pay additional fees to the Patent and Trademark office after I had already quoted them the exact fees for their trademark registration applications.

After some investigation I learned that there are companies out there – I hesitate to call them scam artists – who send letters to trademark applicants (whose names and addresses are readily accessible from the trademark office online data base) on very official looking letterhead in a very official looking envelop informing them they need to pay additional fees for a variety of services. None of this is necessary. These fees don’t go to the U.S. government but instead to a private corporation who offer a variety of services none of which have anything to do with registering or maintaining your trademark.

The small print on the letters is instructive. On the one I reviewed it actually says “This is not a bill. This is a solicitation. You are under no obligation to pay the amount stated above unless you accept this offer. This product or service has not been approved or endorsed by any governmental agency and this offer is not being made by an agency of the government”. You would think that this would convince most people of the non-official nature of the communication but right next to this in bold print it says “FEE $375 Reply By: NOW DUE.”


There are some companies that offer the one service that I wish the trademark office would find a way to offer – monitoring the time periods and alerting applicants as to when they must file their renewal documents (this is a struggle for both applicants and law firms to keep up with). I have no idea how reliable these firms are or if they will even be around in five years – or whenever the applicant needs to remind the trademark office that they are still using the mark.

The bottom line is this – if you are pursuing a trademark application and you get something sort of official looking in the mail – ask your trademark attorney before writing a check

Golan v. Holder

I am not going to pretend to understand the intricacies of the Supreme Court’s ruling in Golan v. Holder but I am interested in any copyright case that makes its way to the United States Supreme Court.

This case involves the Supreme Court affirming Congress’s 1994 amendment to the Copyright Act which retroactively restored copyright protection to certain foreign works previously thought to be in the public domain in the United States. The rationale was to bring the United States into compliance with the Uruguay Round Agreements Act treaty and cause United States’ works to be awarded reciprocal protection overseas.

The bottom line is that works by Prokofiev, Stravinsky and Shostakovich, books by J.R.R. Tolkien, H.G. Wells and George Orwell as well as paintings by Picasso are still protected by U.S. copyright. I get this (although as an aside, I am always amazed to discover that many so-called classical Russian composers actually were products of the 20th Century). What confuses me is how this U.S. law intersects with the laws of many European countries which inject copyrights such as sound recordings into the public domain after 50 years. This has always seemed inconsistent to me. It does appear that copyright law continues to erode the concepts of limited duration and public domain and extend the period of protection for creative works.

The Miller Music Case: Correct but not Fair

Sometimes copyright law is correct but not fair. The U.S. Court of Appeals for the Sixth Circuit issued its ruling in the closely watched copyright case Roger Miller Music, Inc. v. Sony/ATV Publishing last week. The opinion, which I am sure comes as a tremendous disappointment to the Miller family clarifies an important question in copyright law; that is what happens when an author of a pre 1978 copyright dies before the renewal right in the copyright as vested.

The holding in this case is not abstract – it relies on a straightforward reading of 17 USC Sec. 304(a)(2)(B)(i). However the court's opinion does disturb what might have been a long-held belief about the Copyright Act’s application to pre 1978 copyrights and their renewal terms.

The great Roger Miller had a long-term professional relationship with Tree Music, the predecessor to Sony/ATV. Among the songs that are at issue in this case were those registered for copyright in 1964 including "King of the Road" and "Dang Me". The renewal terms for these works commenced January 1, 1993. Miller died on October 25, 1992. The facts of this case show that Sony applied to register the renewal copyrights in 1992 before Miller's death. The aforementioned section of the Copyright Act provides that if an application to register the renewal copyright is filed in the renewal year, the renewal copyright shall vest, upon the beginning of such further term, in any person who is entitled under Paragraph 1(c) to the renewal and extension of the copyright at the time the application is made".

The result, as the court said, is that "Roger Miller was entitled to the renewal copyright because he was living at the time an application for registration was made. Sony was in turn entitled as Miller's assignee and thus took ownership at the time the renewal vested on January 1, 1993.

This is the correct reading of the statute of course and on a purely philosophical level, it appears to be the correct result. However it seems to expose one of the vagaries of the Copyright Act and the commonly held belief that if an author died before the commencement of the renewal term, the rights went to his heirs automatically. The entire concept of the renewal term, which existed from the time of the Statute of Anne until the Copyright Act of 1976, was intended to give authors the proverbial "second bite at the apple" and to correct deals made when the author had an uneven bargaining position. The fact that publishers began to abuse this system by requiring authors to assign both the initial term and the renewal term of the copyright appears to have been an un intended consequence with was only remedied by the 1976's Act introduction of the 35 year termination of assignment provision and the introduction of the unitary term of copyright. However for authors who assigned works up to the end of 1977 the bizarre operation of the whole renewal concept remains murky and unfortunate. It seems unforgiving to require the operation of a renewal term to depend on something like the author's time of death and to have even that trumped by a publisher filing an application for renewal just seems inequitable.

Al Delory

I was saddened to learn about the recent death of Al DeLory. When my former law partner and I established our fledgling law practice many years ago, Al was one of our first clients (#7 to be exact). He did not seem to care that we were young and inexperienced. We of course were thrilled that we were working with the producer of all those incredible Glen Campbell records.

It was only later that I learned about Al’s role as one of the keyboard players in the famous Wrecking Crew-working with everyone from the Beach Boys to Phil Spector to countless others. It was only this week that I learned that Al wrote “Mr. Custer,” one of the staples of my childhood. He created so much music that he was once surprised to get a check from Europe for a song he didn’t remember writing.

I am sure that Al was a little bitter about the way record companies treated staff producers back in his day or about how when he moved to Nashville in the early ‘80’s there was no real demand for the kind of glorious arrangements he created. However, I was always impressed by the fact that instead of grousing or resting on his laurels, he created a salsa band which brought this music to Nashville and beyond way before it attracted the kind of cultural cache it has today.

So, rest in peace Al. It was an honor to have worked with you.

books v. ebooks round two

It is always interesting when you think a legal issue has been settled, only to see someone take another run at it. Such is the case with ebooks and the digital rights to certain author’s back catalogues. As the Wall Street Journal recently reported, Harper Collins has filed a copyright infringement lawsuit against Open Road Integrated Media, a leading digital publishing firm (and a company whose business model I find fascinating). Most people thought that the issue of digital distribution rights had been settled by a 2001 case in which Random House lost a battle to keep Kurt Vonnegut, Robert B. Parker and others from entering into agreements with Rosetta Books, one of the first ebook publishers.

The reason, of course, is that older publishing contracts were silent on the issue of digital rights much like the fact that many old recording agreements were silent on the issues of royalties for digital distribution. Apparently, Harper Collins is now trying to expand the traditional contractual definition of books to include ebooks. If this case goes to trial, the court is going to have to carefully examine the exclusive rights of the copyright holder (i.e. the author) under Section 106 of the Copyright Act and determine whether Harper Collins actually acquired rights that might not have been imagined at the time of the original agreement. I am not really sure how this case will be resolved but I think that some of the digital publishers I have talked to have some intriguing ideas and I would hate to see such innovation stifled and while I am still a pretty traditional reader myself, I see real exciting possibilities for authors whose back catalogs are either out of print or nearly so.

Read on.

On the Legal Status of Concert Tickets

I routinely overuse the cliché “you learn something new every day” but in my case it’s often true. Last weekend, while doing some research for a client, I learned a great deal about the legal status of concert tickets and what a ticket holder’s legal rights are.
Brian A. Rosenblatt wrote a great law review article about the topic: “I Know It’s Only Rock and Roll But Did They Like It? An Assessment of Causes of Action Concerning the Disappointment of Subjective Consumer Expectation Within the Live Performance Industry” (13 UCLA Ent. L. Rev. 33).

Amusingly, the article focuses on a Creed concert in 2002 when lead singer Scott Stapp was allegedly too incapacitated to perform. When a group of understandably angry concert goers sought to file a class action lawsuit against the band, the promoter and all involved, the judge basically said “it’s a rock n’ roll show, what did you expect?” This reminded me of seeing Joe Cocker in concert as a teenager, when he spent most of the show throwing up behind a row of speakers. He was still great.

But I digress. Rosenblatt sums up the relevant case law as follows,” both historic and current case law indicate that the purchase of a ticket to an attraction allows the ticket owner to enter or remain in a specific seat or area within the venue subject to the Seller’s policies, terms and conditions.” As one might expect, the situation is more complex with respect to outright cancellations. Cases such as Miami Dolphins, Ltd. v. Gender & Bach, P.A., have established the concept that there is a contractual element to the actual event-the seller promises that an event will take place and in the event the event does not take place, he must refund the ticket holder’s money. I note that some states actually have statutes dictating how this must be handled.

There have been other causes of action asserted by disappointed concertgoers such as unjust enrichment and consumer fraud but it seems that as long as the event occurs and no one gets hurt neither the artist nor the promoter is responsible for the relative quality of the performance.

All of this made me decide to dig through my 40 + year collection of ticket stubs and indeed, I found that many of them say much more than “No refund No Exchange” on the face of the ticket. I have a new respect for the microscopic boilerplate language on the back of those tickets. Read one sometime