#!/usr/bin/env pinpoint [font=Sans 100px] [R&RHallofFametrans.jpg] [text-color=black] [text-align=center] [shading-opacity=0] [fill] -- [text-color=white][text-align=left][bottom-left][R&RHallofFame.jpg] Rock and roll bands and free software projects: A comparative analysis Pamela Chestek, Chestek Legal -- Introduction -- Videos! #I am showing videos! --     the purpose and character of the use     -- ✓ the purpose and character of the use It's educational! --    the nature of the copyrighted work     -- X the nature of the copyrighted work (Oops) --    the amount and substantiality of the portion taken     -- ? the amount and substantiality of the portion taken Not so much --    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 None I hope. -- 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" OK! ##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 And thanks fair use! --[font=Sans 100px][text-color=white][R&RHallofFame.jpg] Thanks!