It may come as no surprise that the entertainment industry is taking the recent lawsuit very seriously and has been in talks with IMDb regarding its practice of publishing sensitive information without the actor or actress’ permission. For some time now, IMDb has been publishing the ages of various actors and actresses and has been refusing to delete or change the published information even when asked to do so by the actor or actress involved.

The Screen Actors Guild (“SAG”) and the American Federation of Television and Radio Artists (“AFTRA”) have been in talks with IMDb regarding its longstanding policy. Unfortunately, a recent press release indicates that IMDb and its parent company Amazon.com stand firm on their position and will continue to publish ages of actors and actresses without permission and despite direct requests by actors and actresses to delete or change the content already published.

Despite the anonymous actress’ lawsuit filed earlier this month, SAG and AFTRA make clear that IMDb and Amazon.com’s obligations here go beyond just legal obligations. Rather, the guilds state that they “strongly believe that businesses like IMDb have a moral and legal obligation not to facilitate age discrimination in employment.” This is because those in the entertainment industry looking to cast actors and actresses would never directly ask the actor or actress her age, but this information is now routinely accessed through IMDb’s website.

The guilds express concern over the fact that the ages of actors and actresses, which are routinely revealed by IMDb, will negatively affect the actors or actress’ ability to procure employment in Hollywood, where ageism prevails, and explicitly states that “[a]n actor’s actual age is irrelevant to casting…What matters is the age range that an actor can portray. For the entire history of professional acting, this has been true but that reality has been upended by the development of IMDb as an industry standard used in casting offices across America.”

I think Amazon.com may want to sideline its legal department and check with its own human resources department. They may quickly discover that asking an employee their age is a no-no, not because it is against the rules, but because it is a red flag to the Equal Employment Opportunity Commission (EEOC) which means extra scrutiny in lawsuits for employers and prospective employers.

You may be wondering why someone may want a compulsory license or why someone would need to use a copyrighted work. Well, there are many education or non-commercial purposes for using another’s copyrighted material.

United States law provides for several different compulsory licenses which include:

• nondramatic musical compositions

• public broadcasting

• retransmission by cable systems

• subscription digital audio transmission

• nonsubscription digital audio transmission (i.e. Internet radio)

The most common use of compulsory license is for nondramatic musical compositions. U.S. Federal Law (the Copyright Act) allows a person to create and distribute a new sound recording of a musical work. In this case, the new recording does not need to be identical to the previous work. The compulsory license allows you to rearrange the work to conform to the recording artist’s interpretation. However, the individual seeking the compulsory license cannot change the basic melody or fundamental character of the work.

You have no choice but to allow another to have a compulsory license in your work. However, an experienced music attorney can help you protect your rights and help you obtain just compensation for that individual’s use of your copyrighted work.

The United States Patent and Trademark Office has its own set of internal guidelines which they use to determine whether or not they will register your trademark. The mere fact that your trademark has been registered with the USPTO does NOT mean that you are free and clear from any future infringement lawsuits by a third party. What your trademark registration does mean is that, based on the USPTO’s internal guidelines, you paid the USPTO your registration filing fee, and the USPTO registered your trademark. In fact, there are instances where the USPTO finds that your trademark is “potentially confusing” with someone else’s mark but still registers your trademark anyway.

The fact that your trademark is “potentially confusing” with someone else’s mark can be a litigation nightmare a few years down the line when you and that third party is continuing to do business and maybe even expanding to additional areas. All the third party needs to prove is that there is a likelihood of customer confusion. Once that third party proves that your actions of using your later registered mark, you are guilty of trademark infringement, along with the huge liability and potential damages that comes with it!

Take the time now to consult with a trademark attorney so that you can rest assured you are building a business with trade and service marks that are in fact yours!

The percentage SiriusXM and other digital webcasters like Pandora pay to SoundExchange is set by the Copyright Royalty Board, and the current amount of 7.5% is set through 2013. Royalties are distributed to sound recording copyright owners, performers, and non-featured performers in varying percentages; the sound recording copyright owner gets 50%, the performer gets 45%, and the non-featured performers get 5%. SoundExchange’s distribution process is transparent: the money gets distributed directly and simultaneously to all parties involved.

SiriusXM’s new direct licensing proposal entails SiriusXM making the full royalty payment directly to the record labels, totally bypassing SoundExchange. The artists will need to get their cut of the royalties from the record labels. In addition, SiriusXM is proposing to pay independent labels a royalty rate of 7% of gross revenues, which 0.5% less than the amount it currently pays to SoundExchange.

This new proposal by SiriusXM leaves many in the entertainment industry wondering if record labels will engage in some “creative accounting” or simply reduce the royalty percentage from the 50% artists have been receiving through SoundExchange to the typical royalty rates of 15 – 20%. I’m leaning in the direction of the later, but probably in the form of merely a contractual definition change on those already overly complicated record contracts.

SiriusXM attempts to justify its direct licensing proposal by stating that a direct licensing arrangement would provide for more functionality, i.e. SiriusXM users would be able to record programs and rewind or fast-forward through programs. However, SiriusXM’s new proposal takes away the transparency created by Congress’ 1995 Digital Performance Right in Sound Recording Act and, in the end, will likely be another way for many record labels to take a bigger cut of gross revenues.

The basis of Righthaven’s lawsuit was essentially that DiBiase, who maintained a nonprofit website on murder cases, including suspected murder cases where no body has been found but authorities suspect the cause of death is murder. Last year, Righthaven filed suit against DiBiase claiming DiBiase posted a murder story on his website without authorization by the Las Vegas Review-Journal. Righthaven claims it had standing to file the suit against DiBiase on the basis of its lawsuit contract with Las Vegas Review-Journal owner Stephens Media LLC.

DiBiase’s attorneys, at the Electronic Frontier Foundation, argued that DiBiase was performing a public service by posting information on his nonprofit website, i.e. that DiBaise’s website assisted law enforcement in bringing justice to crime victims, and that DiBiase’s online postings are protected by the fair use exception in copyright law.

Federal Judge Roger Hunt ultimately dismissed the case on the basis that Righthaven did not have standing to file the suit against DiBiase and made no findings on DiBiase’s fair use argument. However, Judge Hunt did rule that Righthaven had wrongly been claiming it had the right to seize DiBiase’s website domain names, which is a standard lawsuit demand often criticized by attorneys as simply a way for plaintiffs to push early settlement.

Unfortunately, for Righthaven, the Copyright Act states that the prevailing party may recover reasonable attorney’s fees and costs. Since the court granted DiBiase’s motion to dismiss earlier this summer, DiBiase is deemed the prevailing party. Judge Hunt made clear that his decision ordering Righthaven to pay nearly $120,000 in attorneys fees was based in part on various factors including “frivolousness”, “motivation”, and “objective reasonableness.”

An individual’s right to publicity is defined by the state in which the celebrity lives and is different from state to state. In California, an individual’s right to publicity allows that individual to control how his or her name and likeness is used in a commercial setting. California law makes clear that everyone has a right to publicity, but this right may be of particular value to those few who are celebrities, those who often make a (very handsome) living endorsing products for corporate America.

California makes it illegal for anyone to use another person’s name, voice, signature, photograph, or likeness to advertise or sell goods or services. In fact, California Civil Code Section 3344 requires any person who is found liable for interfering with an individual’s right to publicity to pay the injured party a civil penalty of $750 or actual damages suffered by the injured party, whichever is greater.

All the injured party has to do to obtain his actual damages is present proof of the infringer’s gross revenue that is attributable to his unauthorized use. The injured party is also entitled to punitive damages, attorney’s fees, and costs.

Federal registration places huge liability on others for deliberately using your mark. Because when you registered your mark, you are entitled to actual economic damages suffered by the owner as a result of your infringement or amount of your profits earned while using the purloined mark, punitive damages three times the amount of damages or profits awarded to the owner, attorney’s fees incurred by the owner, and the court may order them to stop using the mark, which may result in large retooling expense and the need to rebuild the company’s goodwill.

An experienced trademark attorney can help you safeguard your business and ensure your business can continue to grow, expand, and reap the benefits of all the hard work and effort you put into it. With businesses continuing to increase their online presence, registering your trademark with the United States Patent and Trademark Office is more important now than ever. You need to know that your business can continue and expand for many years to come. Taking the time now to properly secure your business’ most important asset, its goodwill, can ensure that other parties will not use your business name, logo, or (worse yet) try to pass their business off as yours.

There is no real difference between a trademark and a service mark. A trademark refers to any name, logo, symbol or other device used to distinguish a product from competing products in the marketplace and to identify the product’s source. However, a service mark is any name, logo, symbol or other device used to distinguish a service from others in the marketplace and to identify the source of the service.

The typical timeframe for obtaining a trademark or service mark is 12-18 months. It is always best to get the process started as soon as possible. If another party does a trademark search, the search will disclose to them that an application for registration is already pending. Thus, potential infringers are put on notice that you claim an ownership in that mark or have superior rights to that mark, which is a major deterrent to them. When filing an application for trademark or service mark it is important to remember that one trademark per application, i.e. A logo, name and slogan are three separate trademarks.

It is possible to cancel a registration if someone else is already using your trademark before you but never registered their use. Usually cancellation is where the trademark is being used by a third party in a nationwide capacity. (i.e. Infringer). Your trademark registration will not protect you from an infringement lawsuit if the first (other) user can establish that your use of the mark is creating a likelihood of customer confusion. If the other person’s use is not nationwide, there is the possibility that you and the other user can share dual ownership of the mark within your respective regions.

Prior to applying for trademark registration, it is important that you conduct a thorough trademark search first for several reasons:

• application for trademark registration is $335. There is no sense in wasting money on a trademark registration application that will be rejected by the Patent and Trademark Office anyway;

• you don’t want to infringe on someone else’s mark. The Patent and Trademark Office may find “potentially confusing” mark during its search but still register your mark based on its internal guidelines. However, keep in mind that you may still be subject to an infringement lawsuit if the owner of the previous mark decides to sue you;

• A Patent and Trademark Office search only covers registered trademarks. It does not include trademarks being used but not registered. Search both registered and unregistered marks to ensure that you are not infringing on anyone’s rights.

Under common law, a trademark is defined as being used to identify a business’ goods or services in the marketplace and has not been federally registered. An individual with common law trademark rights only has the right to exclusive use of the mark in parts of the country where the mark’s being used, the right to recover for harm caused by the infringing use, and the right to recover punitive damages and attorney’s fees if it can be shown that the act of copying was deliberate.

The Court’s judgment was made in reference to two specific cases, one involved French Actor Olivier Martinez (who is reportedly currently in a relationship with American Actress Halle Berry) who filed a lawsuit against Mirror Group Newspapers, the publisher of the English tabloid Sunday Mirror, for the violation of his personality and privacy rights. The court’s ruling which expands the definition of a court’s jurisdiction and the forums where in a celebrity may file a lawsuit is favorable toward celebrities and likely to cause a stir in the entertainment industry.

In coming to its decision, the Court relied on constitutional precedent that establishes jurisdiction in “the place where the harmful event occurred or may occur.” Specifically, a Plaintiff must bring a “claim before the courts either of the defendant’s domicile or of the place where the publisher of the defamatory publication is established.”

The recent Court decision expands the constitutional precedent and embraces the fact that the internet has drastically changed how we view a court’s jurisdiction over a matter or, rather, where a plaintiff has been harmed and where he or she is required to file the lawsuit. The internet has allowed users worldwide to access content regardless of what audience the publisher of the content was looking to reach.

The Court stated “[i]t thus appears that the Internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.”

In other words, a plaintiff is no longer confined to bringing the lawsuit in the state where he or she lives. Instead, as long as the plaintiff is able to show he or she was damaged in the chosen jurisdiction by an online posting (of potentially damaging website content), the plaintiff may bring the lawsuit in that forum. The internet and its ability to spread information to millions of viewers instantaneously is blurring the lines of court jurisdiction. Given the ever increasing presence of the internet in our daily lives, it is likely this is only the beginning.

Several groups have already issued statements supporting the STOP Online Piracy Act, which includes the American Federation of Musicians (AFM), the American Federation of Television and Radio Artists (AFTRA), the Directors Guild of America (DGA), the International Alliance of Theatrical Stage Employees, the Moving Picture Technicians, the Artists and Allied Crafts of the United States, Its Territories, and Canada (IATSE), the International Brotherhood of Teamsters (IBT), and the Screen Actors Guild (SAG).

In fact, the CEO and president of Viacom, which is an American media conglomerate dealing primarily in cinema and cable television and currently listed as the world’s fourth largest media company, showed his support for the bill in a recent statement: “[o]ur creative industries provide good jobs for millions of Americans and represent one of the country’s most important exports. However, we face an increasingly difficult battle against entities overseas that shamelessly steal our valuable products and illegally market them online for their own gain… [The bill] provides the Department of Justice and rights holders critical tools to ensure that the creative work of Americans across the country is protected from offshore internet parasites.”

In addition, the guilds recently issues the following in a joint statement: “[a]s the Guilds and Unions that represent more than 400,000 craftspeople, actors, technicians, directors, musicians, recording artists and others whose creativity is at the heart of the American entertainment industry, we applaud [this bill].”

There is big money at stake for many in the entertainment industry if online piracy is not curbed, but many critics are fast to point out some of the flaws which undoubtedly remind us that big brother is watching.