Find study materials for any course. Check these out:
Browse by school
Make your own
To login with Google, please enable popups
To login with Google, please enable popups
Don’t have an account?
To signup with Google, please enable popups
To signup with Google, please enable popups
Sign up withor
· Likelihood of Confusion is the key testThis is proven if a senior or first user of amark can show the junior or second users mark resulted in consumer confusion asto the source of the junior users mark. In other words, the consumer publicmistakenly believes the junior users mark is not a separate source, but insteadcomes from the senior user.
Similarity in the marks,
o Similarities of the goods and services
o Strength of the plaintiff’s mark
o Evidence of actual confusion
o Intent of the defendant
o The physical proximity of the goods in theretail marketplace
o Degree of care likely to be exercised by theconsumer, and
o Likelihood of expansion of the product lines.
· Applies to the principle and agent, eg managerto band,
· An agent has a duty, “not to used confidentialknowledge acquired in his employment in competition with his principal”
· This duty “Exists as well after the employmentis terminated as during its continuance.”
· Use of information based on general businessknowledge or gleaned from general business experience is not covered by therule, and the former agent is permitted to complete with his former principalin reliance on such a general publically available information.
· Can’t use persona for commercial purpose withoutwritten consent
o Persona means an inficudual’s name, voice,signature, photograph, image, likeness or disctinctive appearance, if any ofthese aspects have commercial value
VOICE can count
o Commerical purpose, “Means the use of orreference to an aspect of an individual’s persona in any of the followingmanners,
One or in connection with a place, product,merchandise, goods, serves, or other commercial activities not expresslyexempted under this chapter.
§ A literary work, dramatic work, fictional work,historical work, audiovisual work, or musical work regardless of the media inwhich the work appears of is transmitted, that than an advertisement ofcommercial announcement.
§ Material that has political or newsworthy vlueof connection with broadcast of reporting even or topic of general publicinterest.
§ Original works of fine art,
§ An advertisement of commercial announcement fora use permitted by division of this section.
§ The used of an indivual’s name to truthfullyidentify the indivudal as the author of or contributor to a written work of theperformer of a recorded author of or contributor to wa written work or theperformer.
LLC: Limited Liability Companies
· Type of business entity similar to corporation
· An LLC is a “person”
· Formed by filing with the state
· Typical has operating agreement
· Default rules can be changed
· Select tax status
What is the biggestadvantage to an LLC?
· Separates your business assets from yourpersonal assets, limited liability.
What is a contract?
· Mutual asset
· Must have ALL 4! Not enforced without all 4.
Anexpression of absolute and unconditional agreement to all the terms set out inthe offer. It can be oral or n writing. The acceptance must exactly mirror theorinigla offer.
, is not the sameas an acceptance, a counteroffer extinguishes the original offer, you can’tmake a counter offer and then decide to accept the original offer.
· Each party to the contract must receivesomething of value
· So consideration is the price paid for theother’s promise.
· Past consideration is not good consideration
· The consideration given must by sufficient, butit need not be adequate.
· You also must have
General rules ofconstruction
· Construed against the drafter
· Contract interpretation: Courts will look atintent if not clear within” four corners of agreement” if ambiguous, can lookat intent of the parties and parole evidence. If clear or unambiguous, plainmeaning of crantract
· Rule, Contract Interpretation:
o The language of a contract is to govern it
· Personal managers
· Business managers
· Agents – booking and touring
· Tour managers (road managers)
· Record label
· Music publisher
What are rights granted to the label?
Exclusivity and recording
Term of contract
Example: 1 contract period and 4options
Compulsory Mechanical License
· Applies only if all of the following:
o Non dramatic musical work, and
o Previously recorded, and
o Distributed and
o No change
o New recording only used in phonorecords
IS A COMPLETE TRANSFER OF OWNERSHIP OFA copyright
Grant of the rights to one or more ofthe exclusive rights
Can be verbal
Can be exclusive or non exclusive
Can be for limited term or perpetual
Used in commerece
USED in Commerce
· Must be USED
· Abandonment if not
· TM rights can be perpetual, unlike copyrights
· Must be IN COMMERCE
Identification of Source
Mark must be used in connection with goods or
Not just a business name
The owner of copyright under this title has the exclusiverights to do and to anthorize any of the following. 1. To reproduce the copyright work in copies orphonorecords,
2. To prepare derivative works based upon thecopyrighted work
3. To distribute copies or phonorecords of thecopyrighted work to the public by sale or other transfer of ownership
4. In the case of literary, musical, dramatic, choep
Using Individual’s Persona For commercial PurposeWithout Authorization
A) Except as otherwise provided inthis section, a person shall not use any aspect of an individual’s persona fora commercial purpose:
1) During the individual’s lifetime
2)For a period of sixty years afterthe date of the individual’s death, or
3) For a period of ten years after thedate of death of a deceased member of the Ohio National Guard or the armed forcesof the US
First Rule of Law
Form of strict, secondary, liability that arisesunder the common law doctrine or agency, respondant superior, theresponsibility of the superior for the acts of their subordinate or in abroader sense the responsibility of any third party that had the right abilityor duty to control the activities of a violator.
· Limited liability
· Definded business structure/operating agreement,contractual rights
· Potential tax benefits
· Band ownership issues: member of the band,employees, souse, or just individual?
· Vendor’s license for sale of CD’s and othermerchandise
· Good faith and fair dealing Reasonableness/unconsionblitlity
· Constructed against the drafter
· Contract interpretation: Courts will look atintent if not clear within four corners of agreement, if ambiguous, can look atintent of the parties and parole evidence. If clear or unambiguous, plainmeaning of contract applies.
· Basics of the deal
· Artists agrees to provide exclusive recordingservices to label for certain amount of time.
· Delivery requirement , min 5 albums
· All sound recordings owned by label
· All songs controlled by artist licensed to labelat less than statutory rate (controlled compositions clause) Artist may get advance, which is a prepayment ofroyalties. Label recoups all advances out of artist royalty.
Rights Granted to Label:
· What are rights granted to the label?
· Sound recordings are work made for hire, orotherwise assignment if not. This is done BY AGREEMET< as the artists is notan employee.
· What are advances?
· Up front cash given to artist as ADVANCE ONROYALITIS THAT WILL BE OWED.
· Includes expenses even artists doesn’t ask orrealize they are advances.
· Label gets to take this back out of the artist’royalties until fully recouped.
Are video costs recoupable?
Often at 50%
360 deals - the shiny new deal
· Includes multiple rights outside of standingsound recording
· Tour and booking
· Product endorsements, advertisements
· Ancillary rights, books, scripts, speaking,maybe clothing lines,
· Applies from one album to the next
· If first album boms, but 2nd albumdoes well, they can recoup all expense from 2nd album
· Applies when artist has more than one deal withlabel and/or its affiliate companies, eg a publishing company
· Cam apply to mechanical royalties!
· If 2 or more deals each provide for advances orroyalties, label can recouped from EITHER POT.
· Regards songs written by artist
· Artist licenses to label. Akin to mechanicallicense
· Uses standard compulsory license fee as startingpoint
· Standard rate through is 75% of statutory rate
· Limits to total of 10 times than rate on analbum
Exclusivity and recording restrictions
· Can artist make guest appearance on otherperson’s album?
Term of Contract
· How long are record deals?
· Album cycle v. Time
· Example: 1 contract period + 4 options
· Artist may have say 12 monts to deliver an albumin any term.
· Next term starts 12 months after deliver ofalbum for last term
· So it cam be two years per term, can’t deliver albums until next derm starts
· Auto renewal option – occurs automatically unless label terminates in writing prior to epiration of existing term
· Thus option is LABEL’S option
· Role of publisher : deals with composition,dministration rights
· Finds uses for music, recordings, film/TV,Commercials
· Mechanical royalties, paid by label to use songin sound recordings. Licensed through harry fox mostly, Controlled compositions clauses in Artist recordagreements
· Performance income PRO
· Secondary income:
· Sync Licenses
· Foreign sub publishing
· Electronic Transmissions
· Permanent downloads
· Non interactive streaming
· Interactive straming
· Recording agreements class for advance of100,000
· Royalty is 10% of “net sales”
· Producer Royalty is 3%
· Royalty is payable on 90% of sales
· Label spends 800,000 on production and marketing
· Label spends 200,000 on music video
· Advances are recoupable
Except as otherwise provided in this section, aperson shall not use any aspect of an individuals’s persona for a commercial purpose
During the individual’s lifetime
For a period of sixty years after thedate of the individual’s death
For a person of 10 years after thedate of death of a deceased
As used in this chapter:
A persona means an individual’s name,voice, signature, photograph, image, likeness, or distinctive appearance, inany of these aspects have commercial value.
B) Commercial purpose means the useof or reference to an aspect of anindividuals persona in any of the following manners
1. On or in connection with a place, product, merch, goods, services, orother commercial activities not expressly exempted under this chapter.
2. For advertising or soliciting thepurchase of products merch goods services or other commercial activities notexpressly exempted under this chapter
3. For the purpose of promoting travelto a place
4. for the purpose of fundraising
a person may use an individuals persona for acommercial purpose during the individuals lifetime if the person first obtainsthe written consent to use the individuals persona from a person specified insection of the revised code. If an individual whose persona is at issued hasdied, a person may use the individual’s persona for a commercial purpose ifeither of the following applies
) The person first obtains the written consent touse the individuals persona from a person specified in section of the revisedcode who owns the individual’s right of publicity
A literary work, dramatic work, fictional work,historical work, audiovisual work, or musical work regardless of the media inwhich the work appears or is transmitted other than an advertisement orcommercial announcement not exempt under division a 1 d of this section.
Material that has political ornewsworthy value
Original works of fine art
An advertisement or commercialannouncement for a use permitted by division a 1 a b or c of this section.
2) The use of an individual’s name to truthfullyidentify the individual as the author of or contributor to a written work orthe performer of a recorded performance under circumstances in which thewritten work or the recorded performance is otherwise lawfully reproduced,exhibited, or broadcast.
The right of publicity in an individual’s personis freely transferable and descendible, in whole or in part by any of thefollowing means.
Issue : Is a voice a distinctive and personalfeature of a person, which a person has the right to control from appropriationwithout his or her permission?
A popular singer’s voice is part ofher identity and may not be imitated without her consent.
Voic is a attribute of identiy and
Sign up for free and study better.
Get started today!