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2019 CSUSA Midwinter Meeting Materials


Main Agenda >> 

 

Friday, February 1

TIME
EVENT LOCATION
9:15 AM

Welcome
Glenn Pudelka, CSUSA President

Continental Ballroom, Mezzanine Level
9:30 - 10:30 AM

Session 1
The EU's Digital Single Market Agenda

Join us for a look at recent EU developments, including:

  • Article 13 - the controversial "upload filter" or "license or co-operate" provision. Has an appropriate balance been struck between rights holders and platforms? How radical is it? How much practical difference will the alternative obligations of taking a license or "co-operating in good faith" make? Will platforms need to introduce upload filters that will herald the end of the internet as we know it?
  • Improving the position of creators through transparency and adjustments to remuneration. How will the practices of publishers, labels, studios and others who exploit works and performances have to adapt? When will creators be entitled to enhanced remuneration when their works become "best-sellers"?
  • A new text and data mining exception -- is this a missed opportunity or a danger for nascent business models?
  • The impact of Brexit and the UK's implementation of these proposals.

Speakers:

Mark Seeley (Moderator)
Principal, SciPubLaw

William Bowes
General Counsel and Director of Policy,
UK Publishers Association

Lauri Rechardt
Chief Legal Officer, IFPI

Materials:

  1. Outline
  2. European Commission's Proposal for a Directive on copyright in the Digital Single Market, 14 September 2016
  3. Council of the European Union's agreed negotiating mandate on the Proposal for a Directive on copyright in the Digital Single Market, 14 September 2016, 25 May 2018
  4. Amendments adopted by the European Parliament on 12 September 2018 on the proposal for a directive on copyright in the Digital Single Market
  5. European Commission Staff Working Document, Executive Summary of the Impact Assessment on the modernisation of EU copyright rules
  6. European Commission Factsheet – A Digital Single Market for the benefit of all Europeans
  7. L’Oréal SA and Others v eBay International AG and Others Case C-324/09 Judgment of the Court of Justice (Grand Chamber) of 12 July 2011
Continental Ballroom
10:30 AM Coffee Break
Mezzanine Lobby
11:00 AM -
12:00 PM
 

Session 2
The Music Modernization Act: An Oral History

The Orrin G. Hatch–Bob Goodlatte Music Modernization Act (“MMA”) was signed into law on October 11, 2018, a major accomplishment for a mostly united music industry. The MMA has many changes in store, including a new royalty collective for the reproduction of songs on digital music services, changes in the treatment of pre-72 sound recordings, and compensation for record producers. 

Stakeholders and observers from across the music industry, including recorded music, publishing and the Copyright Office, will discuss some of the topics and controversies the new law addresses, how so many were able to come together to get to this historic point, and what lies ahead.


Speakers:

Regan A. Smith (Moderator)
General Counsel and Associate Register of Copyrights

Bart Herbison
Executive Director, Nashville Songwriters Association International (NSAI)

Colin Rushing
Senior Vice President and General Counsel, SoundExchange

Shannon Sorensen
Vice President, Government Affairs and Counsel,
National Music Publishers' Association


Materials:

  1. Outline
  2. Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No. 115-264, https://www.congress.gov/115/bills/hr1551/BILLS-115hr1551enr.pdf.
  3. U.S. COPYRIGHT OFFICE, AMENDMENTS TO THE COPYRIGHT ACT AS A RESULT OF THE ORRIN G. HATCH – BOB GOODLATTE MUSIC MODERNIZATION ACT (2018), https://www.copyright.gov/legislation/2018_mma_amendments.pdf.
  4. U.S. COPYRIGHT OFFICE, COPYRIGHT AND THE MUSIC MARKETPLACE (2015), https://copyright.gov/docs/musiclicensingstudy/copyright-and-the-music-marketplace.pdf.
  5. HOUSE JUDICIARY COMMITTEE, BACKGROUND AND PURPOSE OF THE MUSIC MODERNIZATION ACT (Oct. 19, 2018), https://judiciary.house.gov/wp-content/uploads/2018/04/Music-Modernization-Act.pdf.
  6. Class Action Complaint for Damages and Injunctive Relief, Lowery v. Spotify USA Inc., No. 1:16-cv-08412-AJN (S.D.N.Y. Dec. 28, 2015).
  7. Complaint for Copyright Infringement, Wixen Music Publishing, Inc. v. Spotify USA Inc., No. 2:17-cv-09288-GW-GJS (C.D. Cal. Dec. 29, 2017).
  8. Music Modernization Act, H.R. 5447, 115th Cong. (2018).
  9. U.S. COPYRIGHT OFFICE, FEDERAL COPYRIGHT PROTECTION FOR PRE-1972 SOUND RECORDINGS (2011), https://www.copyright.gov/docs/sound/pre-72-report.pdf.
  10. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 2016 NY Slip Op 08480 (2016). We’re providing the public slip opinion.
  11. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 229 So. 3d 305 (Fla. 2017). We’re providing the public version of the opinion, available at http://www.floridasupremecourt.org/decisions/2017/sc16-1161.pdf.
Continental Ballroom
12:00 PM Break  
12:15 - 1:15 PM

Session 3
The Interplay Between Rights of Publicity and Copyright

The speakers will discuss the different protections afforded by copyright and rights of publicity, challenges in identifying rightsholders, how the respective rights and defenses may conflict and whether and when rights of publicity claims should be preempted by copyright law. 

In exploring the issues, the panel will examine how the nature of the subject at issue (e.g., a real person, a fictionalized version of a real person, a persona, a completely fictional character, and an actor portraying any of the foregoing) may affect the analysis. Additional topics that the panel may address are life rights, dead celebrities, including Elvis Presley and Martin Luther King, Jr., digital avatars and reanimated performances.


Speakers:

Jay Kogan (Moderator)
DC Entertainment

Jennifer Rothman
Professor of Law and Joseph Scott Fellow,
Loyola Law School

Frederick Sperling
Partner, Schiff Hardin LLP


Materials:

  1. Outline - Frederick Sperling, Protecting the Rights of Publicity of Michael Jordan, Pele, and Muhammad Ali. 1 February 2019.
  2. Rothman’s Roadmap to the Right of Publicity. 2019. Available here: https://www.rightofpublicityroadmap.com/news-commentary/copyright-law-blocks-student-athlete-suit-over-sale-game-photos
  3. Maloney v. T3 Media ETW Corp. v. Jireh Pub., Inc., 332 F. 3d 915 - Court of Appeals, 6th Circuit 2003. Available here: https://scholar.google.com/scholar_case?case=4409160425583094683&q=ETW+v.+Jireh+(6th+Cir.+2003)&hl=en&as_sdt=6,33
  4. 17 U.S. Code § 301. Available here: https://www.law.cornell.edu/uscode/text/17/301
  5. Rothman, Jennifer E., Copyright Preemption and the Right of Publicity. UC Davis Law Review, Vol. 36, p. 199, 2002. Available at SSRN: https://ssrn.com/abstract=309659 or http://dx.doi.org/10.2139/ssrn.309659
  6. Outline - Jay Kogan, Legal Protection Available to Characters. Copyright Society of the USA Midwinter Meeting. 1 February 2019.
Continental Ballroom
1:30 - 2:30 PM

Lunch & Excellence in Creativity Award Presentation

2019 Award Recipient:

Steve Cropper
Guitarist, Songwriter and Producer / Booker T. & the MGs; Member of The Blues Brothers

Hernando Desoto Room, Mezzanine Level

 


Saturday, February 2

TIME
EVENT LOCATION
9:15 AM

Welcome
Glenn Pudelka, CSUSA President

Continental Ballroom
9:30 - 10:30 AM

Session 1
Rock of Aging: Music Artist Estates and Planning

Iconic music artists have passed on including George Michael, Tom Petty, Prince, David Bowe, and others. Music creators and other IP owners who die with an estate plan have the ability to manage their legacy and to reduce the tax bite that may consume over half of the estate’s value without planning. This panel will address legal issues that have a particular impact on celebrity estates, estate planning basics, and an overview of recent disputes and cases that are instructive.  

Speakers:

Lindsay Edelstein (Moderator)

Cowan, DeBaets, Abrahams & Sheppard LLP

 

Ken Abdo

Partner, Fox Rothschild LLP

 

Sarah Wentz

Partner, Fox Rothschild LLP

 

Barbara Newman

President & CEO, The Blues Foundation

 

Bruce Newman

Partner, Law & Accounting Offices of Newman, DeCoster

 


Materials:

Cases:

  1. Outline
  2.  Brown-Thomas v. Hynie, No. 18 Civ. 00307 (SVW) (JPR), 2018 WL 3811353 (C.D. Cal. Aug. 7, 2018), appeal dismissed, No. 18-56095, 2018 WL 6046429 (9th Cir. Sept. 5, 2018).
  3. Complaint, MJJ Productions Inc et al v. The Walt Disney Company et al., No. 18-cv-04761-PSG-SK (C.D. Cal. May 30, 2018) (Michael Jackson).
  4. Complaint, NPG Records, Inc. et al v. Roc Nation LLC, et al., 0:16-CV-03909 (D. Minn. Nov. 15, 2016) (Prince).
  5.  Griffin v. Sheeran, No. 17 Civ. 5221 (LLS), 2019 WL 95482, at *1 (S.D.N.Y. Jan. 3, 2019).
  6. Order Granting in Part and Denying in Part Motion for Preliminary Injunction, Paisley Park Enterprises, Inc. v. Boxill, 253 F. Supp. 3d 1037 (D. Minn. 2017).
  7.  Ray Charles Found. v. Robinson, 795 F.3d 1109 (9th Cir. 2015) (Smokey Robinson).
  8.  Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).

Secondary Sources:

  1. Jessica Bozarth, Copyrights and Creditors: What Will Be Left of the King of Pop’s Legacy?, 29 Cardozo Arts & Ent. L.J. 85 (2011).
  2. Ken Abdo & Sarah Wentz, Rock of Aging, SXSW, https://www.sxsw.com/wp-content/uploads/2018/03/Artist-Legacy-Planning-Protection.pdf. 

 

Continental Ballroom
10:30 AM Coffee Break
Mezzanine Lobby
11:00 AM -
12:00 PM
 

Session 2
There's No Crying in Counterstrike!

E-Sports have become major spectator events – video game competitions have filled arenas across the country, and gaming videos are one of the top categories on YouTube. E-sports and gaming generally also have their own unique combination of copyright issues. We will provide an overview.

Speakers:

Arthur Levy (Moderator)
The Levy Firm
 
Delara Derakhshani
The Entertainment Software Association
 
Jennifer Lloyd Kelly
Fenwick & West LLP
 
Scott Pink
O’Melveny & Myers LLP

Christina Scelsi

Wargaming, Inc.


Materials:

  1. Outline
  2. Jennifer Lloyd Kelly and Theis Finlev, Knockoffs, the Nemesis of the Gaming World, April 6, 2011.
  3. Tetris Holding LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (D.NJ 2012).
  4. Spry Fox LLC v. LOLApps Inc., 2012 WL 5290158 (W.D.Wa. 2012).
  5. Jennifer Lloyd Kelly and Leslie A. Kramer, Electronic Arts v Zynga, Real Dispute Over Virtual Worlds, October 4, 2012
  6. Complaint, Solid Oak Sketches, LLC v. Visual Concepts, LLC, No. 1:16-cv-00724  (S.D.N.Y. February 1, 2016).
  7. Complaint, Blizzard Entertainment, Inc. v. Bossland GMBH, No. 2:16-cv-04860 (C.D.Cal. July 1, 2016).
  8. Complaint, AM General LLC v Activision Blizzard, Inc., No. 1:17-cv-08644 (S.D.N.Y. November 7, 2017)
  9. Complaint, PUBG Corporation v. NetEase, Inc., No. 5:18-cv-02010  (N.D.Cal. April 2, 2018).
  10. Complaint, Bethesda Softworks LLC v. Behaviour Interactive, Inc., No. 8:18-cv-01846 (D.Md. June 21, 2018)
  11. Motion to Stay, PUBG Corporation v. NetEase, Inc., No. 4:18-cv-02010  (N.D.Cal. October 30, 2018).
  12. Complaint, Terrence Ferguson v. Epic Games, Inc., No. 2:18-cv-10110  (C.D.Cal. December 5, 2018).
  13. Scott W. Pink, Using and Protecting Copyrighted Works in an Online and Mobile World, Chapter 4, Intellectual Property Law in Cyberspace (3rd Edition)(AIPLA 2017).

Continental Ballroom
12:00 PM Break  
12:15 - 1:15 PM

Session 3
Music Case Law Round-Up

This panel will discuss a number of recent copyright decisions that involve or impact music, touching on topics such as fair use, international moral and economic rights, royalty rates for the interactive streaming of musical works, extrinsic similarity, and the Durham test and remastered sound recordings.

Speakers:

Serona Elton (Moderator)
Director, Music Business & Entertainment Industries Program, FROST School of Music, University of Miami

Steve Englund
Partner, Jenner & Block LLP

David Jacoby
SVP, Business and Legal Affairs, Sony Music

Christine Lepera
Partner, Mitchell Silberberg & Knupp LLP


Materials:

  1. Outline and Summary of Cases
Continental Ballroom

 

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