Copyright Silver Lining at Supreme Court?

As a musician, you may not think that the Supreme Court affects you. Well, think again. Lawrence Hurley at Reuters noticed that the evenly divided Supreme Court may have picked more IP cases this term to avoid 4-4 splits as they continue to serve with only 8 justices. Compared to issues like abortion, gay marriage, the death penalty, IP does seem a more likely area to for the justices to find common ground and perhaps issue majority opinions. More IP cases may mean good news for musicians as the court settles some questions in copyright and other intellectual property law. Three cases look particularly interesting to me.

Did you know that you can’t register a “disparaging” trademark? Section 2(a) of the Lanham Act, or 15 U.S.C. § 1052(a) for you legal eagles out there, prohibits the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” So who gets to decide what is disparaging? Well, usually the examiners at the United States Patent and Trademark Office. But what if you disagree with them?* And how does this law fit in with free speech under the first amendment? And is this law too vague? The Supreme Court will hear two cases this term from both sides regarding these questions. One likely-non-disparaging application was denied; another likely disparaging mark has remained protected–for now. The trademark application for the dance rock band, The Slants, was denied as offensive.  The band members are Asian American and choose their name to reappropriate a term typically used disparagingly.  Also, The Washington Redskins‘ trademark will be up before the court. Trademark law is a crucial way to protect your public identity; it is hugely important for artists in particular. These will be fun cases to watch.

Another case will decide whether owners of copyrights can face liability if they incorrectly issue a take-down notice when a use qualifies under the “fair use” exception under copyright law at 17 U.S.C. § 107. This case is about a video of a baby dancing to Prince’s song, “Let’s Go Crazy.” Zooming out from this particular case, there is currently a big political tug-of-war going on right now about whose responsibility it ought to be to police the copyright status of user-generated content. A victory for the baby might make it harder for artists to protect unauthorized postings of their songs. Or it might help emerging artists post covers and fans post content to positively spread the word about their favorite band. There is a push right now in the US (and a similar one in the EU) to get rid of the good faith exemption in the American Digital Millenium Copyright Act, Section 512(c), which allows web-based, user-generated content companies like YouTube to avoid liability for infringing content posted to their site if they, among other things, comply with take down notices.  This would seemingly put a huge burden on YouTube to police all its videos, and bring in more revenue for artists, but imagine the hurdle for new music start-ups and other competition to YouTube? How will the next SoundCloud grow up under such rules? I am currently not sure where I stand on the broader issue yet, but Julia Reda’s article was an insightful essay that swayed me a bit from pro to con. For the standard take on it, check out Billboard’s article.

Look for more thoughts in the weeks to come. I hope to change it up and talk about my own musical experiences, my take on the music industry, a few in-depth thoughts on legal issues in music, and if you’re lucky, a few interviews. Stay tuned. For now, I am planning to post once a month.


*You don’t get to go straight to the Supreme Court, though. Here, Simon Tam of The Slants had to appeal first to The Trademark Trial and Appeal Board, then the Court of Appeals for the Federal Circuit, then again at the Court of Appeals for the Federal Circuit but with more judges because one judge requested it, then finally, asked the Supreme Court to take the case. Another crazy fact: Simon Tam filed his application 5 YEARS AGO!