Lex Indicium

  • Neil Young’s Suit Illustrates Music Licensing IssuesAugust 06, 2020

    On August 4, iconic guitarist Neil Young sued the Trump Campaign, claiming that Trump’s unauthorized use of his songs Rockin’ in the Free World and Devil’s Sidewalk at various rallies, including at the Tulsa rally on July 20, violated Young’s copyrights in those songs.  In filing his complaint, Young joins an elite crowd of artists who have complained about the purported unauthorized use of songs when the artist and the writer were not otherwise aligned politically.  Reagan, GW Bush, and McCain (among others) have all had to defend claims brought by, respectively, Bruce Springsteen, John Mellencamp, and Heart suggesting that use of their songs were unauthorized violations of their copyrights (and other rights) in those songs.

    Fundamentally, Young claims that he owns the copyrights in the songs used by the campaign and the campaign used them without authorization.  Accordingly, he argues that he should be awarded an injunction against continued use, and damages for the prior violations.

    These claims have a simple elegance and on their face.  But anyone who has dealt with music performance rights and licensing knows that there is almost nothing simple about those concepts.  Indeed, the world of music licensing is among the … Keep reading

  • Privacy Shield Struck Down by EU Court as Acceptable Mechanism to Transfer EU Personal Data to U.S.July 21, 2020

    One of the more operationally challenging components of the General Data Protection Regulation (GDPR), was the restriction on transferring European personal data to recipients outside of the European Economic Area (EEA).  Essentially, unless an exception or some additional GDPR-approved mechanism applies, European personal data cannot be transferred to non-EEA countries unless the data is being transferred:

    • within a related multinational group of companies who have adopted an internal code of conduct (called “binding corporate rules”) that applies to restricted transfers of personal data from the group’s EEA entities to non-EEA group that has been approved by an EEA supervisory authority;
    • between an EEA-based data exporter and a non-EEA-based data importer who have entered into a contractual agreement that adopts a set of “standard contractual clauses” adopted by the European Commission; or
    • to a jurisdiction that the European Commission has issued an “adequacy decision,” finding that such jurisdiction has adopted “adequate” data protection safeguards. As of the writing of this article, this list of jurisdictions was limited to Andorra, Argentina, commercial organizations in Canada, Faroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Switzerland, and Uruguay. Importantly, up until last week, U.S.
    Keep reading

  • When Paying for It Doesn’t Mean You Own ItJuly 07, 2020

    The Conundrum of Works for Hire.

    You are a small business.  You’ve hired a web developer to create your website, a marketing expert to author critical passages about your products and services, and you’ve hired a graphics person to design your business cards and signage.  You paid everyone, took delivery of and launched your beautiful new website.  The problem is, you don’t have any paper that confirms your developer, marketing guru, and graphic designer transferred the rights to the work to you.  “But wait,” you protest, “they cashed my checks and I have possession of the files.  Doesn’t that mean I own it?”

    It’s natural to assume that if you engaged a service provider to create something for you, and you paid for it, it’s yours.  But that’s not what the law says, at least with respect to works that are eligible for copyright protection.  In fact, even if you have a writing that says the work shall be considered a “work made for hire,” that might not be sufficient to ensure that the work belongs to you.

    What Does Copyright Protect?

    Copyright protects original, creative works that are set out in a “tangible medium,” meaning they are written … Keep reading

  • Trademark Audits: What Registrants Should ExpectJune 23, 2020

    In 2017, the USPTO initiated an aggressive auditing program of U.S. trademark registrations at the time of maintenance filings. The goal of the program is to ensure the accuracy and integrity of the U.S. register by removing or narrowing registrations that include claims beyond the scope of the registrant’s actual use of its mark in U.S. commerce. The Office is on pace to audit 5000 registrations in 2020 so registrants who have not been tagged as yet should be prepared for an audit in the future.

    By way of background, the U.S. system of protection for trademarks, unlike many non-U.S. systems, requires the trademark owner to actually use its mark in U.S. commerce with all the goods or services specified in the registration. Accordingly, to maintain an issued registration the registrant must declare, under oath, that all of the specified goods or services claimed in registration are being provided under the mark to U.S. customers at the time of filing registrant’s Section 8 Declaration of Continued Use (due between the 5th and 6th and years after registration) and Renewal (due every 10 years after registration) filings are due. This “actual use” requirement applies regardless of the original … Keep reading

  • Supreme Court Helps Trademark Owners: Proof of “Willfulness” Is Not Required To Recover Infringer’s ProfitsJune 10, 2020

    In April 2020, the U.S. Supreme Court ruled that trademark infringers can be required to hand over their profits to a brand owner even if their conduct was not “willful.” The case was Romag Fasteners v. Fossil Group, Inc., 590 U.S. (2020). It is an important case for trademark owners because it lowers the plaintiff’s burden to recover a defendant’s ill-gotten profits.  In fact, after Romag, the defendant’s deliberate and intentional state of mind is no longer the critical factor that courts must consider in order to award profits in a trademark infringement case. Romag can be an important weapon for trademark owners against, for example, infringers that use their mark on goods or services that do not directly compete with the trademark owner, where the trademark owner did not necessarily lose a sale and may have no actual damages in that regard. Profit disgorgement by the infringer allows for monetary compensation even if the trademark owner has not been directly damaged in that way.

    Fossil is a large and well-known distributor of fashion accessories.  Romag sells magnetic snap fasteners for leather goods. For years, Romag and Fossil had an agreement whereby Fossil used Romag fasteners in … Keep reading

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