ESPN won’t be the first to take issue with BMI, Broadcast Music, Inc., over their music licensing and royalty collection terms for public performance of music in their artist catalogs. BMI is one of two major professional organizations managing performance royalty rates for musicians and their works, the other being ASCAP, the American Society of Composers, Authors and Publishers with catalogs of thousands of artists and songs. Think you can simply play your iTunes downloaded music in your workplace without a license? Think again. We have addressed this topic before as many a business owners has received the unpleasant demand letter for licensing fees under either BMI, ASCAP, or the smaller performance rights organization called SESAC, originally the “Society of European Stage Authors and Composers”. Now, however, ESPN is forging a battle in the music industry competition referred to as rate-setting and contending that BMI’s rates are disproportionate to EPSN’s payments to performers and publishers and are, therefore, unreasonable. In fact, ESPN has asked the Court to weigh in on this one.
If you haven’t been paying attention, you may have missed the struggle raging over the artist formerly known as Ke$ha, now the face of the #freeKesha movement.
A simplification of the backstage war being waged over the popstar’s music goes like this: Kesha filed a lawsuit against Lukasz “Dr. Luke” Gottwald, claiming he abused the young popstar. Her 28-page complaint alleged that the older man drugged her, sexually abused her, threatened to take away her publishing rights, and verbally abused her to the point of an eating disorder. The suit, filed in a civil court rather than the subject of a criminal investigation, seeks to terminate her contract with Gottwald and his label, Kemosabe Records. Gottwald, in turn, claims that the suit is a way for Kesha to wiggle out of contracts obligating her to his label. The popstar is obligated to six albums; two have been completed. On top of this allegation, Gottwald has filed a countersuit for defamation and extortion (among several others). After a brief stint in California courts, the case was moved to New York due to a forum selection clause. Several of Gottwald’s claims against the star and her management have been dismissed.
This month we tackle on our blog and at our talks in Blacksburg, Roanoke, and Richmond the topic of media licensing in public places. And in this post, Donald Trump, the brash presidential candidate, real estate magnate, and apparent music thief, or so says Adele. Is she right?
Full disclosure: I strongly dislike Donald Trump and I love Adele. My son sings along to “Hello” whenever it comes on the radio. I have an Amazon mix that has “Hello” from Adele followed by “Hello” from Lionel Richie. Which one is better? Hard to say, since they’re both awesome.
The yellow arches, the green and white mermaid, the white script on the red can. You probably can match these descriptions to the brand — and this immediate recognition points to brand and logo strength. Oftentimes, in fact, your logo is your brand. But is it really your logo? In fully developing this core part of their consumer identity, many businesses miss some basic steps they should take to avoid a situation where logo ownership is in jeopardy.
Part of determining who owns the interest in the logo design itself depends on the capacity in which the designer completes the logo development. Most people and businesses look to hire a graphic designer for a one-time project-based job for which they intend to pay that designer a lump sum. Upon making payment, that person or business then owns the work, right? Nope. That’s a copywrong. You see, simply making payment for the logo doesn’t confirm or clear up ownership or associated rights (and limitations).
One step in determining ownership of the logo developed by the designer is to ask whether it is a work made for hire. A work made for hire, under The Copyright Act, is defined as either “(a) a work prepared by an employee within the scope of his or her employment”, or (b) a specially commissioned work (as in the case of a graphic designer hired for a discrete project) in a number of enumerated categories if reflected in a written agreement signed by both parties. If the design work was not completed by an employee, then the work is potentially a work made for hire, but only if the specially commissioned work falls into one of the enumerated categories and the parties have signed a written agreement stating that the work will be considered a work made for hire. If the work is not a work made for hire at all, as with an independent contractor whose specially commissioned work doesn’t fall into one of the categories required under the Act, an explicit written copyright transfer agreement is required to transfer ownership in the logo design from the designer to the person or business for whom it was created.