Steve Perry lawsuit provides a glimpse of key points of ente

[tater1977]

Steve Perry lawsuit provides a glimpse of key points of entertainment law

https://jroseattorney.blogspot.com/2019 ... se-of.html

June 04, 2019

The year is 1991, and Stephen Perry and Phil Brown are recording demos on an eight-track recorder in Brown's California home. They write two compositions: "Somebody Somewhere" and "Don't Push the River". Brown shows Perry two other songs he previously wrote, and Perry lays down vocals for all four songs. The two musicians enter into a modest administration agreement designating Perry as administrator in perpetuity of the two co-writes. Perry advances Brown $1500, recoupable against collection of writer and publisher royalties. Brown, in turn, executes a promissory note for payment of the $1500 in the event that the songs do not make Perry's next LP.

The songs do not make the LP For the Love of Strange Medicine, released in 1994. But the tapes remain with Brown. In 2002, attorneys for the two parties exchange terse letters regarding ownership of the sound recordings. But the dispute never makes its way into court.

Fast forward to October 2018, when Perry, following a long hiatus, releases the album Traces. Brown, apparently looking to capitalize on the publicity and his connection to a member of the Rock & Roll Hall of Fame, drops Perry's name and photos on social media in connection with his own band Apaches From Paris. Perry invokes the Digital Millennium Copyright Act of 1998 ("DMCA") to force Facebook take down a vocal clip he recorded 27 years earlier when there was no social media.

And Perry files a federal complaint in the Central District of California in November 2018. The court issues a restraining order preventing Brown from releasing the four 1991 vocal recordings. The court rules on pretrial motions in March of 2019, and Billboard magazine reports this ruling. The case is currently scheduled to go to trial on June 25.

I mentioned the DMCA already. If you're in the music industry and looking for a quick summary of key points of entertainment law during this CMA Music Festival week 2019, look no further than Stephen Perry vs. Phil Brown and the following analysis.

Perry's amended complaint has five claims for relief. I bring to your attention the four claims that deserve your attention:

1. Trademark infringement

Perry owns a musical sound recordings trademark for his own name. This registration serves as evidence of his exclusive right to use his name, to have the temporary court restraining order that is in place, to have a permanent injunction, and to recover the profits of the defendant, the damages of the plaintiff, and the costs of the court action. Additionally, a trademark owner may obtain a court order for the destruction of tangible materials bearing the registered mark. Taylor Swift attracted attention from me in years gone by for her attention to her trademark portfolio and her enforcement of her registrations through orders for the destruction of infringing merchandise.

In this lawsuit, Perry alleges that Brown infringed Perry's trademark through social media and associating Perry's name with Brown's band.

2. False designation of origin

This claim involves use in commerce of a word, term, name, symbol, and/or device with a false designation of origin or false or misleading description of fact which is likely to cause confusion, cause mistake, or deceive as to the affiliation, connection, or association of such person to another person or as to origin, sponsorship, or approval of his/her goods, services, or activities. Its remedies are virtually the same as the ones listed above for trademark infringement.

Steve Perry alleges that Phil Brown is drawing an association between the music of the two and that Brown is commercially exploiting Perry's name.

3. Copyright infringement - sound recordings

The two sides dealt with ownership of the two songs they co-wrote in the administration agreement mentioned above. As to the four sound recordings, two of which embody the songs "Somebody Somewhere" and "Don't Push the River", Perry requests a judicial declaratory judgment that he owns them, and this almost certainly is a winning issue for him. Brown recorded backing musical tracks to enhance Perry's vocal performance. In some instances under the changes recently put into place by the Music Modernization Act, Brown could be entitled to a small percentage of royalties received from the recordings. But Perry will likely be declared as owner of the sound recording copyrights.

Copyright infringement results in a choice for the owner of the copyright: Either actual damages suffered and any additional profits collected by the infringer or statutory damages of between $750 and $30,000 or up to $150,000 for willful infringement - all as the court deems just. Add on the costs of the action and attorney fees.

4. Violation of common law right of publicity

Although it varies somewhat from state to state, the common law right of publicity protects the non-consensual use of a name, likeness, or other indicia of identity for purposes of trade. A viable claim involves a defendant's use of plaintiff's identity; appropriation of the name or likeness to defendant's advantage, commercially or otherwise; lack of consent; and resulting injury.

In this case, Perry alleges that Brown misappropriated his name and exploited and tarnished the same "knowingly, willfully, oppressively, and maliciously" to receive financial benefit. Perry is requesting punitive damages.

So whether you're reading this post during CMA week or during any other week and whether you are in Nashville or in any other town, it is wise to know some points of entertainment law. I will keep you posted on Perry vs. Brown.