Live have shown little loyalty to their fans Options

[themaestro]

In HEC Enterprises, Ltd. vs. Deep Purple, Inc., [6] the management company for the rock group Deep Purple brought suit to enjoin a former member of the band from using the names DEEP PURPLE and NEW DEEP PURPLE in connection with live musical performances. Notwithstanding the fact that the “original” Deep Purple had ceased performing several years prior to the former member’s resurrection of the name, the court found that the mark DEEP PURPLE was still in use given that the group’s recordings remained in distribution. Having established that the original group’s management owned valid rights in the name, the court enjoined the defendants from making further use of the names DEEP PURPLE and NEW DEEP PURPLE, and awarded damages and attorneys fees to the plaintiffs.

In Brother Records, Inc. vs. Jardine, [7] a corporation (BRI) formed by members of the Beach Boys and which owned the rights to the THE BEACH BOYS trademark sued Beach Boy Al Jardine to stop him from using the following names: Al Jardine of the Beach Boys and Family & Friends; The Beach Boys “Family and Friends”; Beach Boys Family & Friends; The Beach Boys, Family & Friends; Beach Boys and Family; as well as, simply, The Beach Boys. This case provides an example of a situation where a band used an agreement to create a corporation, the corporation owned and licensed the rights in the band’s name, and the corporation was able to stop an unlicensed band member from using the band’s name.

Most notably, the Brother Records court addressed the issue of nominative fair use, which Jardine raised as a defense. This doctrine allows a defendant to use a plaintiff’s trademark to refer back to the plaintiff’s goods and services in situations where (1) the product or service at issue is not readily recognizable without use of the trademark; (2) only so much of the trademark is used as is reasonably necessary to identify the product or service; and (3) the user does nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. [8] The court held that Jardine’s use of his former band’s name infringed BRI’s trademark because Jardine’s use indicated that the Beach Boys sponsored or endorsed his concerts. For example, some of Jardine’s promotional materials displayed “The Beach Boys” more prominently than “Family and Friends,” and Jardine’s management testified that they recommended using the THE BEACH BOYS name to create or enhance the value of the concert tour. Finally, the fact that some promoters and concertgoers were actually confused – they could not differentiate between a Jardine concert and Beach Boy Mike Love’s nearby, licensed “The Beach Boys” concert – worked strongly against Jardine’s case.

[themaestro]

How the Band Protects Its Brand:
The Use of Trademarks to Protect
and Promote the Musical Artist
BY CHRISTOPHER R. CHASE, ESQ. OF FRANKFURT KURNIT KLEIN & SELZ, P.C.
Mr. Chase is an intellectual property and entertainment attorney with Frankfurt Kurnit Klein & Selz, P.C. in New York. He can be reached at cchase@fkks.com. The author thanks Marc Handelman, Brian G. Murphy and Alexandra VonHockman for their insightful comments.

Also, when confronted with the issue of departing group members who use the name of their former group, courts have determined that members of a group do not retain rights to use the group’s name when such members leave that group. However, the former members may properly refer to themselves as a “former member of [group]” or “original member of [group]” when advertising his or her new entertain- ment services or sound recordings.
Because of the difficult issues that face dissolved groups or the departing members of groups, it is important to have an agreement among the members of the artist regarding the use of the group’s name. Often a group will be a partnership or incorporated entity; therefore, all group partnership or internal corporate agreements should specifically outline the rights to the group name and what will happen to that name upon dissolution of the group or the departure of a member. Another way to prevent the problem of departing members using the group’s name is to have the group, as a partnership or incorporated entity, federally register the name as a mark. If the group as a whole owns the registered mark, then the group can prevent any departing member from using such name, while continuing to protect the name of the group against other third party uses.

[Bremang]

Not only did Ed violate the trademark for the name "Live", he also violated the copyright by selling bootlegs of Live-owned music without paying the other three guys who are 3/4 owners of the copyrighted material.

Of all of the claims, the bootleg claim seems to be the best one to me.

The $1,000,000 advance issue seems weird to me. It may just be that I am not familiar with how he allegedly got the $1M, but in general, if an advance is supposed to be paid to the band as a business entity, it would have been made payable as such, deposited into the corporate account, etc.. If it was supposed to be paid to the 4 guys individually, there would be a check issued to each. So how did Ed get a hold of the entire $1M? It doesn't make sense. I'd need more facts to know for sure.

A trademark violation requires the plaintiff to demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion. There is no requirement that actual damages be demonstrated. The "likelihood of confusion" is the issue IMHO. Advertising your solo show as "Ed K. of Live" kind of puts a foot on either side of the line. He mentions Live, but also its pretty clear that its not a Live show, its a solo show. I'm no trademark lawyer but I would think that a defense could be formulated out of that.

The copyright violation is a slam dunk. I assume the Live material on the bootlegs is copyrighted by Live, 3/4 of which are not Ed. They are entitled to a certain royalty for every copy of those songs that is sold, and that includes these sold by Ed. The fact that Ed alone is performing them is irrelevant, as there are TWO copyrights, one for the writing, one for the performance. He can sell his performance all day long, but he still has to pay for use of the copywrittn song that was performed. He recorded them, advertised them, and sold them. If he didn't pay Live (i.e. CCP's 3/4), then he is clearly in violation of the copyright. Assuming anyone bought the bootlegs, I am sure someone did.

I don't know what the royalty rate is nor the amount of copies sold, so I can't say whether this is a $5 claim or a $500,000 claim, but liability-wise, I think its the strongest argument.

Thanks, I was hoping you would respond!

I forget just about everything I learned in IP. How do you figure out which law is applied? I have access to westlaw & nexus

[Bremang]

thanks maestro....

It seems like CCP have solid claims.....I wonder what the heck Ed's camp was thinking. Do you think Ed would have done all of these things without having the green light from his lawyer first?

This post has been edited by Bremang: Apr 21 2013, 4:39 pm

[Bremang]

He can sell his performance all day long, but he still has to pay for use of the copywrittn song that was performed.

Do you mean copyrighted instead of copywritten? What's the law say about performing music in concert? Would an artist need to pay another artist for performing their copyrighted material?

[themaestro]

thanks maestro....

It seems like CCP have solid claims.....I wonder what the heck Ed's camp was thinking. Do you think Ed would have done all of these things without having the green light from his lawyer first?

Great question. I really don't know. Seems all he had to do was use former as he is doing now. There remains that whole period of time when he wasn't and I think he will be held accountable for that.

[SJN1279]

Great question. I really don't know. Seems all he had to do was use former as he is doing now. There remains that whole period of time when he wasn't and I think he will be held accountable for that.

I could understand bringing Ed to court to change billing, but the 2 million dollar figure is beyond any level of ridiculous. How they feel they are entitled to anything close to that figure is insanity.

[Bremang]

Great question. I really don't know. Seems all he had to do was use former as he is doing now. There remains that whole period of time when he wasn't and I think he will be held accountable for that.

but it seems likely that he would have thought to get legal advice before selling bootlegs, and taking a 1 million dollar advance. I assume Ed could just sue whomever gave him this legal advice, if there was any.

[Bremang]

I could understand bringing Ed to court to change billing, but the 2 million dollar figure is beyond any level of ridiculous. How they feel they are entitled to anything close to that figure is insanity.

Everything will be audited during discovery i presume.

[SJN1279]

Everything will be audited during discovery i presume.

Unless they storm out again....

[SinfulEyes]

Unless they storm out again....

It tends to happen when you are dealing with an egomaniac who thinks he can do no wrong.

[SJN1279]

It tends to happen when you are dealing with an egomaniac who thinks he can do no wrong.

None of us were in there and know the exact details. All we know is that CCP stormed out because the tweeted it for some reason.

[Hoodstock]

I could understand bringing Ed to court to change billing, but the 2 million dollar figure is beyond any level of ridiculous. How they feel they are entitled to anything close to that figure is insanity.

I hope they run it deep enough for Ed!

[SinfulEyes]

None of us were in there and know the exact details. All we know is that CCP stormed out because the tweeted it for some reason.

I've heard from a reliable source that Ed's poor attitude and demeanor caused the walk out. I wish it weren't true but it proves just how self centered and wicked the former front man of Live really is.

[Bremang]

I've heard from a reliable source that Ed's poor attitude and demeanor caused the walk out. I wish it weren't true but it proves just how self centered and wicked the former front man of Live really is.

You and your reliable sources sound biased as shit. Doesn't prove anything. We will hopefully know in the end what the deal is.