initial commit for LP 2017 speaker slides repo

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Rock and roll bands
and free software projects:
A comparative analysis


<span size="x-small">Pamela Chestek, Chestek Legal</span>

--

Introduction

--

<i>Videos!</i>

#I am showing videos!

-- 

    the purpose and character of the use
 
 

--

✓ the purpose and character of the use

<b>It's educational!</b>
--

   the nature of the copyrighted work
 
 

--

X the nature of the copyrighted work

<b>(Oops)</b>

--

   the amount and substantiality
of the portion taken
 
 

--

? the amount and substantiality
of the portion taken

<b>Not so much</b>

--

   the effect of the use upon
the potential market
 
 

--

How many are attending
the session just so you
can watch music videos?

#You have to leave.


--[transition=page-curl]

How many of you came for
the big hair and Vincent Price
with an 80’s glam band?

--[Ratt.mp4]

#play 1:11 

--

✓the effect of the use upon
the potential market

<b>None I hope.</b>

--

Why bands?

#A lot of similarities

#Can come together casually
#but also can be formally operated businesses.

#There are individual contributors but there is a
#collective identity at the same time The name is
#the crux of the question; it represents both the
#collective and the product, the musical
#performers and the records; in software it is
#the members of the group and the software name

--

Who owns the "project"?

--

It might be the employer

#Who could forget the spectacular hit by the
#Righteous Brothers?

-- [RighteousBros.mp4]

#play 50 secs

#I apologize for the quality of the next, but it's
#worth it. I love Dick Clark's introduction of the
#upcoming song, where he is remarkably tactful
#about it, in an "it's ... interesting" kind of
#way

-- [VitoUnchainedMelody.mp4][duration=165]

#play 2:45

#"You walk about nine miles"

#Vito and the Salutations was a band that left one
#manager and started with another manager. The
#original manager was able to hang on to some of
#the original members and put together a new
#arrangement of "Vito and the Salutations," so
#there were competing groups called "Vito and the
#Salutations."

#22 people performed with the group and “Vito” as
#the lead wasn’t always the original member named
#Vito, it was 10 different people.

#Rick, as manager and promoter of "Vito and the
#Salutations," conceived of the group's
#performance as an "act" in which each member
#played a particular role. As individuals left
#the group, others were found to replace them and
#to assume their respective parts.


-- [Vito5.jpg][fit][transition=swing]

-- [Vito4.jpg][fit][transition=sheet]

#But who could forget the most famous act that
#didn't start out as a band...

-- [Monkees.mp4]

#play 52 secs

#Monkees - no lawsuit, but they were a band put
#together for a TV show. But they have toured in
#the past few years

--

Or, it might not be, if the
association is with the group

-- [NewEdition.webm]

#play 1:26

#Recognize the place?

#Four of the five plaintiffs performed locally as
#“New Edition.” They performed in a talent show
#organized by Maurice Starr. As far back as 1972
#Starr had an idea for “80’s black bubblegum
#music,” “essentially the Jackson Five updated by
#the addition of modern elements like synthesizers
#(electronic instrumentation) and rap (speaking
#parts).” Starr thought the boys were short on
#talent but used them to demo “Candy Girl.” Starr
#ultimately entered into employment contracts with
#the singers. The contract said that Starr could
#use whatever artists he wanted. The band was
#called “New Edition,” although Starr wanted a
#different name. All the employment contracts
#said that Starr owned the “New Editions”
#name. Originally they lip-synced their
#performance and Starr played backup, then they
#started to tour without Starr. The band got more
#successful, touring internationally. The five
#band members were minors and so were allowed to
#disaffirm the contract.

#"They have appeared on television shows, at charity
#events, and -- the crowning sign of success --
#they have even been featured in a COKE commercial."

#The court held that the band owned it resulting
#from their use of it when working for Starr.

--

Bands, like free software, have
the concept of the collective

-- [Kingsmen.mp4]

#play 56 secs

#Kingsmen, unincorporated association, sued
#former member Ely who performed on an album as
#the Kingsmen. But he couldn’t use it without the
#rest of the group

#"Moreover, having listened to the recordings by
#The Kingsmen submitted as exhibits to the Court,
#including the #original recording of Louie,
#Kingsmen's music. Although the listener can
#discern the lead singer from the background
#vocals and music on a number of Kingsmen songs,
#the group's "sound" is clearly a collective
#one. No one member of the group can be singled
#out as representing the essence of The
#Kingsmen's performing style."

--[transition=slide-up]

The well-meaning custodian 

#The Intruders

--[Intruders.mp4]

#play 1:04

#Between 1966 and 1976 the Original Group released
#approximately twenty-five recordings that made
#the Billboard Charts. The Original Group
#disbanded in 1976, and no group performed under
#the name "The Intruders" from that time until the
#early 1980's. In 1983 the former members assigned
#all rights in the name "The Intruders" to one
#member Eugene Daughtry and said they wouldn't
#subsequently seek to participate in any group
#called "The Intruders" as a result of their
#membership in the Original Group. Daughtry
#performed with defendant Montgomery. 

#In July 7, 1994, when he was ill, Daughtry
#transferred an undivided right, title and
#interest in the name "The Intruders" to his
#brother Fred and Original Group member Phillip
#Terry as joint tenants, with a right of
#survivorship. Daughtry passed away and his
#brother Fred told #Montgomery to stop performing
#and started his own "Intruders" band with
##plaintiff Mears.

#Fred Daugthry died and purely as a matter of
#estate law Phillip Terry was the owner of the
#trademark but he hadn't been performing with or
#managing either group. He had been named because
#Eugene Daughtry, the original brother, trusted
#him. Phillip #Terry said that Eugene had given
#him and Fred so that the two of them could
#"preserve" the name "the Intruders", and oversee
#the makeup of any band #bearing the Intruders
#name after Eugene's death. Phillip Terry appears
#to have switched sides

--

Bands fork! And they fight ...

--[Drifters.mp4][transition=slide-left]

#play 2:46

#The band was formed in 1953 and the first
#lawsuit filed in 1958, 60 years ago and it might
#be over? (2017 appeals court decision on
#registration of trademark).  Who are the
#real Drifters?

--

The Drifters
Treadwell’s Drifters
The Original Drifters
Treadwell’s Original Drifters
Bill Pinkey’s Original Drifters

#This is not limited to the Drifters. 

--[WaPoclip.png][fit]

#The reference to the inaguration is to President
#Clinton's inaguration

#Larry Marshak bought shares of companies that
#the bands had set up and then later claimed that
#he owned the trademarks and therefore the
#bands. Beware the troll.

--

But sometimes you can
get away with it ...

-- [BlackFlagcomposite.jpg]


#A group of former band members reformed 20 years
#later as a “tribute” band; another of the former
#members not included formed his own band. The
#court found the use of "Flag" and the logo
#dissimilar enough to the original band that they
#could continue to perform as "Flag"


-- 
And you can’t sit on your rights

##Fulanito - 2 photos

--[FulanitoComposite.jpg][fit]

--

How to refer to the former project


--[Steppenwolf.mp4]

#play 1:35
#it just seemed to be time for a musical interlude

--

"Former Original Member of Steppenwolf,"
"Original Founding Member of Steppenwolf"
"Formerly of Steppenwolf"

<span foreground='red' size='xx-large'>OK!</span>

##Steppenwolf ok, Commodores not ok

--[Commodoresname.png][fit]

--[Commodores.mp4]

#play 36 secs

#McClary was lead guitar

--

Who owns the copyright?


#John Fogerty wrote "Run Through the Jungle" in
#1970 but didn't own the rights. In 1984 he wrote
#"the Old Man Down the Road" and was sued by his
#former record company.


--[CCR.mp4]

#play all of it

#There was a jury verdict that the "Old Man Down
#the Road" did not infringe the copyright in "Run
#Through the Jungle." It went to the Supreme
##Court on attorneys' fees, which Fogerty won

--

Credits:

Rock and Roll Hall of Fame,
Rob Zand, CC-BY-SA,
https://flic.kr/p/7qdcTb

<i>And thanks fair use!</i>

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Thanks!