Legendary Talking Heads frontman David Byrne is steamed, and he’s not going to take it anymore! No, it’ has nothing to do with his passion for bicycling. It has something to do with copyright infringement.

It seems that Florida governor Charlie Crist, an independent candidate for the Senate, had used one of Byrne’s songs, the Talking Heads classic “Road to Nowhere” without Byrne’s permission.  From Billboard:

“Byrne is seeking $1 million in damages from Gov. Charlie Crist, who’s also Florida’s former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. Crist has since changed his campaign and is running as an independent candidate.

The suit (Case Number 8:10-CV1187-T26 (MAP)) was filed early Monday afternoon in the United States District Court for the Middle District of Florida in Tampa.

Byrne tells Billboard.com that he became aware of the Crist ad from a friend in New York, where the Talking Heads co-founder resides. “I was pretty upset by that,” says Byrne, who had Warner Bros. Records contact the Crist campaign, which subsequently stopped using the ad. But, Byrne contends, “in my opinion the damage had already been done by it being out there. People that I knew had seen (the ad), so it had gotten around. The suit, he adds, “is not about politics…It’s about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for.”

“Road to Nowhere” appeared on Talking Heads’ 1985 album “Little Creatures.”  It reached No. 25 on Billboard’s Mainstream Rock Tracks and was nominated for Best Video of the Year at the 1986 MTV Music Video Awards. It also appears in several films, including “Reality Bites” and “Religulous.” None of the other Talking Heads members are involved in the suit.

Byrne’s attorney Lawrence Iser — who also represented Jackson Browne in his successful suit against 2008 Republican presidential candidate John McCain’s illegal use of his song “Running on Empty” — says that the Crist campaign did not obtain either a synchronization license required to use Byrne’s composition or a master use license for the Talking Heads’ recording. The ad also violates the Lanham Act of the U.S. Trade Statue, implying a false endorsement of Crist by Byrne.

“I was fairly astonished that this soon after the settlement of Browne vs. McCain, yet another politician with national aspirations is doing this again,” Iser says. “We just a year ago settled Browne vs. McCain, and the defendants there — including the Repbulican National Party — made a pledge…they would respect artists rights and license copyrighted works. To have it happen again in January is fairly shocking. They can’t say, ‘We didn’t know that you have to get a license to use songs in commercials.’…They absolutely did know.”

Iser says the $1 million damages claim is based on previous offers Byrne has received for use of his songs in commercials.

Iser says he’s not sure how long the Byrne case will take to resolve. Browne vs. McCain took about nine months.

Byrne isn’t the only musician to have a song involved in Florida’s hotly contested senatorial campaign. Rubio used the Steve Miller Band‘s 1976 hit “Take the Money and Run” for a YouTube ad attacking Crist. Miller issued a statement saying that, “The Steve Miller Band and Steve Miller do not endorse Marco Rubio’s campaign or any political candidates and respectfully request that Mr. Rubio learn more about publishing law and intellectual property rights. I also ask that in the future he extends me the courtesy of asking permission before using my songs.” The ad was subsequently stopped, and a spokeswoman for Miller says the matter has been settled to his satisfaction.”

The take-home message is, always ask for permission. Politicians have been getting caught in this trap since Ronald Reagan used Bruce Springsteen’s “Born in the U.S.A.” One would think that, as lawmakers, most of whom are lawyers, they’d be sophisticated enough to understand this.

"Road to Nowhere" · Billboard · Boston Copyright Lawyer · Charlie Crist · copyright · copyright infringement · David Byrne · infringement · intellectual property · music · Talking Heads · Worcester Copyright Lawyer

Do you download music from file-sharing or P2P (peer-to-peer) networks? If you do, a recent ruling by the Second Circuit Court of Appeals may make you rethink doing so.

In Arista Records, LLC v. Doe 3, the Second Circuit upheld a district court ruling rejecting the defendants’ request to quash the plaintiff record companies’ (Arista, Atlantic, BMG, Capitol, Elektra, Interscope, Maverick, Motown, Sony BMG, UMG, VIrgin, Warner Bros., and Zomba) subpoena to the defendants’ Internet service provider (ISP) for confidential information which would identify the defendants. The defendants argued, among other things, that the First Amendment’s right to privacy and right to anonymous speech protected them from such disclosure. The Second Circuit disagreed, holding that, when such anonymous use of the Internet involved copyright infringement, the copyright holders’ need for the infringers’ identities to enforce their intellectual property rights outweighed the defendants’ First Amendment right to anonymous Internet use. To paraphrase the court, the First Amendment is not a license to infringe copyrights.

The heart of the Second Circuit’s decision rested on the lower court’s analysis of the plaintiffs’ copyright rights versus the defendants’ First Amendment rights under the five Sony Music Entertainment Inc. v. Does 1-40 (326 F.Supp.2d 556 (S.D.N.Y. 2004) factors:

(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for the subpoenaed information to advance the claim, . . . and (5) the [objecting] party’s expectation of privacy.

Sony Music, 326 F. Supp.2d at 564-65.

The defendants argued that the plaintiffs did not make a sufficiently particularized showing in order to overcome the defendants’ qualified First Amendment privilege. The lower court and the Second Circuit disagreed, given that the plaintiff record companies provided a detailed record of the alleged copyright infringement, as well as specifying exactly what information they sought from the defendants’ ISP, the State University of New York at Albany (SUNYA).

This case touches on many big issues: the First Amendment versus intellectual property rights, the extent of the fair use doctrine, the record companies versus the “little guy.” If anything, Arista Records, LLC v. Doe 3 clarifies exactly what a copyright plaintiff will need to show in order to pierce the First Amendment’s qualified right to anonymous Internet use. It will be interesting to see if this case advances to the Supreme Court.

h/t – Leagle.com

Arista Records · Atlantic Recording Corporation · BMG Music · Boston IP Lawyer · Capitol Records · Copyright Act of 1976 · copyright infringement · Elektra Entertainment Group Inc. · fair use · file sharing · First Amendment · infringement · intellectual property · Internet · Internet service provider · Interscope Records · ISPs · law · Leagle · Maverick Recording Company · Motown Record Company · music · music downloads · P2P · right to anonymous speech · right to privacy · Second Circuit Court of Appeals · Sony BMG Music Entertainment · Sony Music Entertainment Inc. v. Does 1-40 · State University of New York at Albany · subpoena · SUNYA · UMG Recordings · Virgin Records America · Warner Bros. Records Inc. · Worcester IP Lawyer · Zomba Recording LLC

Are you a musician in a rock band? Are you pursuing music as a serious career? Do you have a band agreement?

Cue the sound of a record screeching to a halt.  ”What’s a band agreement?” you may be asking. You’re not the only one. As someone with experience as a musician, I can attest that a band agreement can clear up uncertainties and is an important way to head off any difficulties for you and your band down the road.

A band agreement is a contract formally embodying the band and each member’s relationship to the band and to each other. For example, many bands formally incorporate as a corporation, a limited liability corporation (LLC), or some other business entity. And that’s just the tip of the iceberg. Effective band agreements include many key terms and provisions, comprehensively detailing how the band will work. Common terms in a band agreement include the ownership of the band name and likeness; the percentages by which profits will be shared; procedures for voting on band decisions; hiring, firing, and quitting; amending the agreement; and buyouts. Additionally, band agreements may delineate the how the songwriting and publishing moneys are distributed.  I know, I know: this all sounds too formal for a free-spirited rock n’ roll band to consider, but if you are looking to make a career out of music, a band agreement is essential. You have to treat your band like a business, and a band agreement is a great way to start.

On April 20, Volunteer Lawyers for the Arts is hosting a seminar on band agreements at the offices of Goodwin Procter, located at Exchange Place, 53 State Street in Boston.  The speaker is attorney Valerie Lovely, a musician and highly experienced music attorney. All information about registration and pricing can be found here on the VLA website. And so you know, the price has been reduced from $60 per person to $30, with each additional band member paying $10 for admission. It’s a bargain, and it’s a great opportunity to learn, so check it out!

If you are in a band and are interested in learning about band agreements, I highly recommend that you speak with a music attorney and attend this seminar. Who knows, you may find out that even musicians need to learn about contract law after all!

band agreements · Boston Music Lawyer · Goodwin Procter · law · music · Valerie Lovely · Volunteer Lawyers for the Arts · Worcester Music Lawyer