Academic Paper Sessions
Saturday 2:00-3:00
Presentation of Academic Papers 10 (Terrace C)
Keith Hatschek, Moderator
Presentation of Academic Papers 10 (Terrace C)
Keith Hatschek, Moderator
How Viable are Legal Claims by Songwriters
and Recording Artists Who Allege They Haven’t Been Properly Attributed
as Creators When Their Music is Distributed?
Stan Soocher
Associate Professor of Music & Entertainment Industry Studies
University of Colorado Denver
Abstract
Stan Soocher
Associate Professor of Music & Entertainment Industry Studies
University of Colorado Denver
Abstract
The Lanham Act is a federal trademark statute
that provides a cause of
action for false designation of origin of goods or services. A party
bringing a false designation claim may allege that a defendant has
caused a “likelihood of consumer confusion” by manufacturing and
distributing goods under the defendant’s name that were originally
created by the plaintiff.
Songwriters and recording artists have brought false designation claims for failure to properly attribute them as the real creators of distributed music. This seems like a particularly useful cause of action in the digital age, where misnamed mp3 files are traded through file-sharing software (i.e., a Jay-Z track is file-shared as an “Usher” track).
In 2003, the U.S. Supreme Court issued its decision in Dastar Corp. v. Twentieth Century Fox Film Corp., which significantly restricted false designation claims. The ruling has since been cited as precedent by numerous courts. In Dastar, the high court decided that “the phrase ‘origin of goods’ in the Lanham Act … refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” Thus, creators of songs and recordings would be barred from prevailing on a false designation claim. The court was concerned that ruling otherwise would in effect allow for a perpetual copyright.
Yet, the Dastar decision left some key issues open, some of which continue to evolve. This MEIEA paper presentation will explore these and related issues, and their impact on the music industry today. For one, the Supreme Court applied its “origin of goods” restriction to tangible, brick and mortar products. How then does Dastar affect the world of intangible online content? Is there a distinction between applying Dastar to authors of works in the public domain as compared to works still under copyright? Can a record label that holds the copyrights in sound recordings nevertheless proceed with a claim of trademark confusion? What is the interplay between claims for false designation of origin and claims of violation of rights of publicity?
Songwriters and recording artists have brought false designation claims for failure to properly attribute them as the real creators of distributed music. This seems like a particularly useful cause of action in the digital age, where misnamed mp3 files are traded through file-sharing software (i.e., a Jay-Z track is file-shared as an “Usher” track).
In 2003, the U.S. Supreme Court issued its decision in Dastar Corp. v. Twentieth Century Fox Film Corp., which significantly restricted false designation claims. The ruling has since been cited as precedent by numerous courts. In Dastar, the high court decided that “the phrase ‘origin of goods’ in the Lanham Act … refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” Thus, creators of songs and recordings would be barred from prevailing on a false designation claim. The court was concerned that ruling otherwise would in effect allow for a perpetual copyright.
Yet, the Dastar decision left some key issues open, some of which continue to evolve. This MEIEA paper presentation will explore these and related issues, and their impact on the music industry today. For one, the Supreme Court applied its “origin of goods” restriction to tangible, brick and mortar products. How then does Dastar affect the world of intangible online content? Is there a distinction between applying Dastar to authors of works in the public domain as compared to works still under copyright? Can a record label that holds the copyrights in sound recordings nevertheless proceed with a claim of trademark confusion? What is the interplay between claims for false designation of origin and claims of violation of rights of publicity?
Stan Soocher is Associate
Professor of Music & Entertainment Industry Studies at the
University of Colorado’s Denver Campus. He is also the long-time
Editor-in-Chief of Entertainment Law & Finance. In addition, Stan
is an entertainment attorney and award-winning journalist. His book
They Fought the Law: Rock Music Goes to Court was recently published in
a Chinese translation edition by the Beijing-based Law Press China.
Race, Hegemony and the Birth of Rock &
Roll
Paul Linden
Assistant Professor and Sequence Head, Recording Industry Program
University of Southern Mississippi
Abstract
Paul Linden
Assistant Professor and Sequence Head, Recording Industry Program
University of Southern Mississippi
Abstract
Mckinley “Muddy Waters” Morganfield said it:
“The Blues had a baby and
they named it Rock’n Roll.” Morganfield’s poetic language condenses and
dresses up an interesting moment of transition and evolution in the
history of American Popular music. This study lifts the veil of
Morganfield’s lyric to investigate the converging forces that brought
about America’s Rock’n Roll revolution. In so doing, Elvis Presley
serves as an initial figure of translation necessary for the adoption
of this “troublesome” and largely black art form. During the period
from approximately 1959 to 1961, mainstream America reconsidered its
earlier revulsion and somehow embraced the music that has been the
dominant segment of the popular music market ever since. How was Rock’n
Roll repackaged and cleansed of its troubling associations that had
brought it contempt only a few years earlier?
To answer this question, this study values various socio-cultural media as primary texts that allow for interpretation and critical reading of the Rock & Roll assimilation. These include traditional media such as radio broadcasts, television programming as well as those media that are specific to the music industry, such as musical compositions and recordings of those compositions. In order to respect the fact that the industry depends on the exploitation of the latter, we are compelled to recognize the ownership structures that use traditional media (the first group) as promotional vehicles for the sales of songs and records. We therefore accord a particular value and double status to record companies and publishing companies as both owners of records and songs, as well as mainstream institutions that either support or subvert mainstream values. By the same token, the broadcasting industry is simultaneously paid and contracted by the music industry to promote specific properties while also having the power to support or subvert the status quo.
Guiding questions for the study include the following: beyond the collapse of segregation, what specific threats to mainstream America are posed by rhythm and blues music? By what processes can we see the establishment (government, religion, media, education) re-branding rhythm and blues as Rock & Roll? What specific repercussions does this re-branding have on the development of notions of masculinity within black culture? Significant moments in the history of US popular culture are brought into focus in order to answer these questions, moments like the rise and fall of the Rock’n Roll DJ; the Twist phenomenon and the payola hearings.
To answer this question, this study values various socio-cultural media as primary texts that allow for interpretation and critical reading of the Rock & Roll assimilation. These include traditional media such as radio broadcasts, television programming as well as those media that are specific to the music industry, such as musical compositions and recordings of those compositions. In order to respect the fact that the industry depends on the exploitation of the latter, we are compelled to recognize the ownership structures that use traditional media (the first group) as promotional vehicles for the sales of songs and records. We therefore accord a particular value and double status to record companies and publishing companies as both owners of records and songs, as well as mainstream institutions that either support or subvert mainstream values. By the same token, the broadcasting industry is simultaneously paid and contracted by the music industry to promote specific properties while also having the power to support or subvert the status quo.
Guiding questions for the study include the following: beyond the collapse of segregation, what specific threats to mainstream America are posed by rhythm and blues music? By what processes can we see the establishment (government, religion, media, education) re-branding rhythm and blues as Rock & Roll? What specific repercussions does this re-branding have on the development of notions of masculinity within black culture? Significant moments in the history of US popular culture are brought into focus in order to answer these questions, moments like the rise and fall of the Rock’n Roll DJ; the Twist phenomenon and the payola hearings.
In 2007 Dr. Paul Linden was
granted an assistant professorship in the Entertainment Industry
Program at USM. He has twenty years of experience in the business as a
performer, publisher, promoter, producer, agent and manager for
U.S.-based Blues groups at home and abroad. Touring & performance
credits range from B.B. King to Koko Taylor. A BMI-affiliated
songwriter & Harry Fox-affiliated music publisher, he has produced
albums for indie labels Landslide & Music Maker. Recent
publications include “Coping with Narcissism: Causes, Effects and
Solutions for the Artist Manager” (MEIEA Journal, Fall 2010), an
analysis of the 13th-Century “Song of the Albigensian Crusade” (French
Forum, Winter, 2007-2008).
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