After reading the FCC v.
Pacifica case, I came across this story about how NYC is banning the use of the “N” word. By no means do I support the use of the word; however, I think this still demonstrates an attempt by government to regulate speech.
In FCC v.
Pacifica, the court looked at the content and the context of the “speech” to determine whether it deserves First Amendment protection. The court looked to see if the speech carries any type of social or political value. I believe this word has social and political value due to its negative connotation and history as a racial slur against African Americans. However, I think the connotation of the word changes depending on the circumstances or the context in which it is used. I believe the “N” word carries a different meaning when used in among the Hip Hop music community. It appears the proponents of the campaign seek to ban the use of the word among rap artists. I believe the strongest argument for the hip hop music community would be the context factor. When used under these circumstances, it is not to demean or offend but rather reflects a meaning established and accepted by the hip hop culture.
http://today.reuters.com/news/articlenews.aspx?type=topNews&storyID=2007-02-28T231559Z_01_N28254477_RTRUKOC_0_US-NEWYORK-WORD.xml&pageNumber=0&imageid=&cap=&sz=13&WTModLoc=NewsArt-C1-ArticlePage2
We covered cybersquatting in class and learned that it is a subspecies of a registered trademark claim. Cybersquatting occurs when a person registers the “trademark” of another person or entity as a domain name. For celebrities, their name does not have to be formally registered and they obtain common law trademark rights to their name due to the popularity they have achieved in becoming a “household” name. Celebrities and others looking to file suit against cybersquatters do so under Uniform Dispute Resolution Policy. This method of arbitration is beneficial and the most economically effective because it helps to reduce litigation costs. To determine whether someone is in violation of cybersquatting the courts look to the Anticybersquatting Conusmer Protection Act requiring the plaintiff to prove
1. The domain name registratn registers a domain name containing a third party trademark
2. the Registrant has a BAD FAITH intent to profit from the domain name. Bad Faith is influenced by 9 factors –
- the registrant’s IP rights in the domain name
- if the domain name contains the registrant’s real name
- the use of the domain name in a bona fide offering of goods/services
- a bona fide non commericial or fair use of the domain name
- an intent to divert consumers in a way that harms the trademark owner’s goodwill
- an offer to sell the domain name without having used it for a bona fide offering of goods/services
- providing false contact info
- multiple bogus registrations
- distinctiveness/famousness of the mark
3. The registrant has registered, trafficked in, or used a domain name that is identical or confusingly similar to the mark or, in the case of a famous mark, dilutes the mark.
After learning about cybersquatting, I thought about the recent websites that demonstrated pictures of Antonella Barba, American Idol contestant, and I wondered if she could ever have a cybersquatting claim against those registrants. Of course, Antonella Barba has not been in the limelight too long but the controversy surrounding her pictures has made her a household name. I did a search of the websites that are registered with her name and found www.antonella-barba.org, which is a fan site in support of the wanna be Idol. However, the website that has caused the controversy and posted the pictures of Antonella in some compromising positions is www.antonellabarbapix.com. Under the ACPA, I believe that Antonella may have a claim against the registrant. From looking at this website, it is clear that the registrant as an intent to divert consumers in a way that harms the trademark owner’s goodwill. Many of Antonella’s legitimate fans may be searching for a website to learn more about her and may come across this website instead. The registrant is aware of Ms. Barba’s popularity and is using the website to promote the pictures and stir up controversy. Also, the registrant is using advertising revenue by posting other commercial websites and therefore the website lacks a bona fide non commercial use. However, it may be difficult for Antonella to win this claim because of the fact that the website may have actually helped to increase Antonella’s popularity. As an American Idol fan, I believe the national attention the website has created may have been a god send for Antonella because unfortunately it is not her singing talent that is keeping her on the show. This is definitely a case of “ANY PUBLICITY is GOOD PUBLICITY.”
I have been thinking of the idea of creating a regulating agency or organization that would provide a certification for managers in the music industry.
Currently anyone can assert they are a “manager” in the business and that is a scary thought. There is no type of training or certification required for people to call themselves “managers”. I believe that some type of regulating agency/organization would help protect artists while granting managers credibility and integrity to the profession. Also, the organization would be beneficial to record companies and other parties that interact with management.
This organization could provide programs for certification to managers. It could also create a ratings system for management companies. Artists could use this information to determine whether to hire a manager or sign onto a management company for representation.
The main advantage of this organization would be to reduce the number of people posing as managers who scam artists and take advantage of their vulnerabilities.
I believe there are plenty of these scams out there… My goal is to research those cases and look to see how realistic a remedy this idea may be….
I am currently a law student at Barry University School of Law and enrolled in the Entertainment Law class. Issues discussed in this blog are inspired by the lecture and discussions from class. A link to Professor Randazza’s class blog is available on this page.
The motivation behind my decision to create the blog was due to my experience working in the entertainment industry. As an Operations manager at a music management company I was able to see how some of the issues we’ve discussed in class can influence an artist’s career. I believe it is important for an artist and manager to be PROACTIVE and understand the potential impact these legal issues can have on their work.
One good tip for artists who want to learn about the good and the bad about the music biz is to READ “ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS.” by Donald Passman. It is an easy read and will help a artist to be proactive in their career development.
I want to be clear that I am a law student and not an attorney and this information is not posted as legal advice.
1. Copyright –
- KNOW the purpose of COPYRIGHT law!!
- Why copyright?
- How do you tell if your work is infringed?
- Look to see whether the person had access to the copyrighted work and for substantial similarity…
- The Fair Use defense to Copyright
- Fair use doctrine §107 – 1976 Copyright Act – the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research,” is not an infringement of copyrighting.
- 4 Factors to determine whether something is fair use:
- The purpose and character of the use-whether it is for commercial use or nonprofit educational purposes.
- The nature of the copyrighted work
- The amount and the substantiality of the portion used in relation to the copyrighted work
- The effect of the use on the potential market for or of value to the copyrighted work: court stated the most important element of fair use.
- (the fact the work is unpublished should not in and of itself bar a finding of “fair use” based on consideration of all the other relevant factors)
2. Trademark -
What is a trademark?
- any word, name, symbol or device of any combination thereof
- Used, or intended to be used, in commerce
- To distinguish the trademark owner’s goods, from those of another
I will update the list as I go through the issues in class… Look for real world examples of the impact of copyright and trademark issues in future posts…
