Generic Fair Use

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Category: Music (page 2 of 2)

Lady Gaga is not famous – according to the Trademark Office

Lady Gaga is an American recording artist.[1] She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016.[2] As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name.[3] I feel confident in stating that Lady Gaga is famous.

Yet in an opinion dated March 30, 2016,[4] the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…”[5] Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.

If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?

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Stairway to Infringement? Led Zeppelin facing copyright claims

On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others.[1] The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.

How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?

Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial.[2] In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.

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Seek and Destroy: Metallica is antagonizing its fan base over IP rights. Again.

Metallica has always had a love-hate relationship with its fans.  Beginning with its controversial decision to film a music video for the first time for the anti-war song “One” and continuing with the shift from heavy metal thrash to more “commercial” rock songs on the Black Album, Metallica has routinely challenged the expectations of the public.

More famously, on April 13, 2000, Metallica inflamed the good nature of its fan base by suing Napster in federal court for copyright infringement, racketeering, and unlawful uses of digital devices, among other causes of action.[1] As part of this lawsuit, Metallica identified over 300,000 individual users who allegedly copied and unlawfully acquired digital copies of Metallica’s songs through the Napster peer-to-peer (P2P) file sharing service. These users were “temporarily” banned as a result of Metallica’s investigation and lawsuit.[2]  Not surprisingly, Metallica faced a severe public backlash for attacking its purported fans through lawsuits and allegations of copyright infringement. It even inspired a classic South Park episode.

Metallica is accordingly well-known to be litigious. They will strongly enforce trademark rights and all of their copyrights, when necessary. This often does not sit well with music fans that view the band as entitled and out-of touch millionaires. This leads to the most recent unfavorable public relations snafu by Metallica.

On December 30, 2015, Metallica’s lawyers sent a cease-and-desist letter to a Canadian tribute band performing under the name “Sandman.” Why did Metallica go after a tribute band? How is this different from the Napster case?

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Coca-Cola is trying to claim trademark rights to “ZERO.” Billy Corgan must be inconsolable.

Did you know that The Coca-Cola Company applied to register a federal trademark for the term “COCA-COLA ZERO”?  It is true.  Coca-Cola filed the application with the USPTO on March 4, 2005.[1]  The application was published for opposition on April 17, 2007.  Not surprisingly, the companies that own Dr. Pepper and 7-Up immediately opposed this registration.[2]  The battle has been ongoing for over eight years now.

Without going into too much detail, an executive for Coca-Cola testified recently that there are twelve Coke products that use the term ZERO in the product name.[3]  This includes Coke Zero, Cherry Coke Zero, Vanilla Coke Zero and others.  This is consistent with Coca-Cola’s trademark application, which identified the relevant goods and services as “Beverages, namely soft drinks; syrups and concentrates for the making of the same.”[4]  Nevertheless, the “ZERO” part of the mark almost certainly refers to the marketing of these specific products as having “zero calories” per serving size (i.e., one can or bottle).  This presents a series of interesting trademark concepts.

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