Gesmer Updegrove LLP

An Introduction to the Music Modernization Act

by Lee Gesmer on December 13, 2018

An Introduction to the Music Modernization Act

Every few decades Congress enacts a major amendment to the U.S. Copyright Act. We are at one of those inflection points now. On October 11, 2018 the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (the “MMA”) was signed into law. (click here for full text of the law)

This is a massive, game-changing law for digital music distribution, and it may take years for it to be fully integrated with the complex U.S. music copyright system. But, if you’re at a holiday party this season and someone insists on discussing the MMA with you, this blog post will give you a few talking points to avoid embarrassing yourself.

The MMA does three things.

First, and most importantly, it completely revamps the U.S. mechanical licensing system for interactive digital streaming services and digital downloads by shifting the burden of identifying composers from the services to the composers themselves.

Second, it requires interactive streaming services to make royalty payments to owners of pre-1972 sound recordings for the first time..… Read the full article

Supreme Court To Decide Whether Trademark License Can Be Rejected In Bankruptcy

by Lee Gesmer on November 28, 2018

Supreme Court To Decide Whether Trademark License Can Be Rejected In Bankruptcy

The U.S. Supreme Court decides very few intellectual property cases. And, it accepts review of few cases from the First Circuit Court of Appeals in Boston (my circuit). So, when the Supreme Court accepts an IP case appealing a decision from the First Circuit, as it has now, I pay attention.

The case under appeal involves a narrow but important legal issue that is of interest to both the intellectual property licensing and bankruptcy communities. Here is a brief summary of what’s at issue.

The decision on appeal is Mission Product Holdings Inc. v. Tempnology LLC (1st Cir. January 12, 2018), and the issue is a mashup of trademark and bankruptcy law.

When a company files for protection under Chapter 11 of the Bankruptcy Code, the trustee or the debtor-in-possession (the “debtor”) may secure court approval to “reject” any executory contracts to which the debtor is a party. An example would be a distribution agreement for a specific term (say five years) that has not run its course.… Read the full article

It’s Probably Not a Good Idea to Sue Glassdoor If Your Employees Diss You There

by Lee Gesmer on October 26, 2018

It’s Probably Not a Good Idea to Sue Glassdoor If Your Employees Diss You There

Section 230 of the Communications Decency Act has, once again, protected a website from a claim of defamation based on user postings.

Simply put, Section 230 of the CDA provides that a website isn’t liable for defamation (or any other non-intellectual property claim) based on user postings. The poster may be liable (if she can be identified), but the website is not. Typically, Section 230 cases involve defamation or interference with contract by the poster — copyright infringement based on user postings is handled by a separate statute, the DMCA.

Craft Beer Stellar, LLC’s suit against Glasdoor ran into this law head-first in a recent case decided by Massachusetts U.S. District Court Judge Dennis Saylor.

Craft Beer complained to Glassdoor over a critical posting by a Craft Beer franchisee (the fact that the post was by a franchisee rather than an employee is legally irrelevant). Glassdoor removed the posting on the ground that it violated Glassdoor’s community guidelines.… Read the full article

Led Zeppelin, Spirit and a Bustle at the Ninth Circuit

by Lee Gesmer on October 8, 2018

Led Zeppelin, Spirit and a Bustle at the Ninth Circuit

The U.S. copyright community will look back on 2018 as an important year for music copyright law. Appellate decisions in music copyright cases are rare. However, this year we’ve seen two important opinions from the Ninth Circuit. In March the Ninth Circuit upheld a jury verdict that found that Pharrell Williams and Robin Thicke’s 2012 recording of “Blurred Lines” infringes Marvin Gaye’s 1976 composition of “Got To Give It Up” (see my blog post, “Blurred Lines at the Ninth Circuit,” here).

Now, in October, the Ninth Circuit has issued an opinion in Randy Wolfe’s copyright case against Led Zeppelin. The jury in that case found that Led Zeppelin’s 1971 recording of Stairway to Heaven did not infringe Wolfe’s composition copyright in the 1968 song Taurus (recorded by Spirit).  However, the appeals court found that the judge made several errors during the trial, requiring that the case be retried.… Read the full article

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