The Future of Cover Versions of Songs Could be Dim

With advancements in technology, the United States Copyright Office has recognized the need to revise provisions of the Copyright Act. Recently, the Office completed its review of the music licensing regime. Among other recommendations, such as ensuring that music creators are fairly compensated and that the licensing process is efficient, the Copyright Office suggested that artists should have the right to preclude musicians from recording cover versions of their songs and posting them on YouTube and selling them on iTunes. Presently, many indie artists perform and record cover songs in order to showcase their musical talents and build their fan base by playing songs that are recognizable. 

Presently, Section 115 of the United States Copyright Act governs compulsory licensing. Per Section 115(a)(2), an individual can make a cover version of a work as long as the individual has obtained a compulsory license. Per Section 115(a)(1), a person may distribute phonorecords of musical works to the public if the person obtains a compulsory license.

In its study, the Copyright Office recommended revising Section 115 to afford songwriters and publishers the right to stop people from posting cover versions of songs on interactive and download sites. Publishers would have the option to negotiate interactive streaming and digital phonorecord delivery (DPD) rights for their song catalogs, which would include the ability to authorize the distribution of cover versions of songs. If a publisher elects to not negotiate interactive streaming and DPD rights for their songs, then a musician who wants to produce a cover version of a song will need to obtain a voluntary license if the musician wants to post the song on a streaming or download site.  The Copyright Office maintains that persons should still be able to record cover versions of songs on physical cds and to play covers on broadcast radio and in live concerts. 

While these are just recommendations at this time, the Copyright Office’s position demonstrates that it is attempting to balance the rights of musicians seeking to record cover versions and publishers who own the copyrights to popular songs. Nevertheless, many indie musicians may not have the resources necessary to obtain voluntary licenses in order to post their cover versions on streaming sites, which may lead the musicians to receive limited exposure.

Bill in Connecticut Legislature Strives to Decrease Marketing on Social Media Sites

When you are using social media sites, are you frustrated by the number of advertisements that ask you to allow the site or application to access your contacts list? Connecticut legislator, Representative Mitch Bolinksy, recently introduced a bill that would limit how often a site could request access to a user’s contacts list in order to send unsolicited email marketing messages to a user’s contacts.

The bill is the first of its kind in the nation and is designed to protect Connecticut’s consumers from deceptive marketing practices. Presently, upon gaining access to a user’s contacts list, social media sites and applications can send unsolicited marketing messages to third parties without the user’s permission. If this bill passes, social media websites and applications that operate in the state and presently request access to customers’ contacts lists will undoubtedly need to revise their marketing approaches.  

Connecticut Bill Could Provide Student-Athletes at Public Colleges and Universities with State Employee Status

Representative Matthew Lesser recently introduced a bill in the Connecticut legislature that would amend the Connecticut General Statutes so that student-athletes attending public universities and colleges would be considered employees for the purposes of entering into and negotiating collective bargaining agreements. As the bill is presently drafted, to be considered an employee, a student would need to receive a scholarship for at least 900% of the cost of tuition; the scholarship would need to be materially related to the student’s expected participation in intercollegiate athletics; and the revenues generated by the institution for the athletic program that the student would be participating in would need to meet a certain threshold. Per the Hartford Courant, UConn football and basketball players would be the only college athletes in the state who would be considered employees if the bill is passed as-is.

 

Connecticut General Statutes Section 5-271(a) provides that employees are protected in the exercise of their right to self-organize by forming, joining, or assisting any employee organization in collectively bargaining to resolve concerns related to wages, hours, and employment conditions. While being able to participate in collective bargaining may be advantageous for student-athletes, there are concerns that the costs associated with supporting unionization could decrease the funding that universities are able to allocate to other sports that do not generate revenue. The NCAA has taken the position that student-athletes should not be considered employees, and in December, Michigan Governor Rick Snyder signed a Public Act banning student-athletes enrolled in public universities and colleges from unionizing.  

What Must the Government Prove to Sustain the Conviction of a Tippee in an Insider Trading Case?

In its recent decision in United States v. Newman, the Second Circuit held that, in an  insider trading case, the government must prove that the tippee, the individual who received nonpublic, material information from an inside source, knew that the corporate insider received a personal benefit in exchange for disclosing confidential company information. This holding will require the government to prove that the tippee was aware that the tipper, who provided the inside information, received a personal benefit for the disclosure. This holding will also likely limit the scope of liability for individuals, such as financial analysts and portfolio managers, who trade on information that is not publicly accessible but who have no direct relationship with the individuals who provided the inside information.

Todd Newman and Anthony Chiasson made millions of dollars for their hedge funds in 2008 by trading on inside information about the earnings for Dell and NVIDIA.  Newman and Chiasson did not personally know the individual who had originally provided the nonpublic information about Dell and NVIDIA, and they had received information from various sources. Nevertheless, the trial court convicted Newman and Chiasson of securities fraud. The Second Circuit vacated Newman and Chiasson’s convictions because the court found that there was not enough evidence to prove beyond a reasonable doubt that Newman and Chiasson knew that the tipper had received a personal benefit for providing the inside information and that they were trading on information that the tipper had obtained by breaching his or her fiduciary duties to his or her employer.

An individual is not liable for insider trading simply because he or she traded on information that the individual knew was confidential and nonpublic. To be held liable, an individual must know or should have known that the individual who provided the insider information, who is known as the tipper, breached his or her fiduciary duty by providing the inside information and received a personal benefit for the disclosure. Thus, in light of the Newman decision, to convict a tippee of insider trading, the government must prove, beyond a reasonable doubt, that:

(1)  The corporate insider or tipper owed a fiduciary duty to the company that he or she is disclosing nonpublic information about;

(2)  The corporate insider breached his or her duty by disclosing confidential information to the tippee in exchange for a personal benefit;

(3)  The tippee knew of the tipper’s breach, knew that the information was confidential and knew that the tippee shared the confidential information for a personal benefit; and

(4)  The tippee used the information to trade in a security or provided the information to another individual for personal benefit.

Preet Bharara, United States Attorney for the Southern District of New York, has petitioned the Second Circuit for a rehearing in this case and argues that the court’s decision reflects a departure from precedent and may impede enforcement of securities laws.    

New Department of Justice Policy Bans Federal Prosecutors From Asking Defendants to Waive Ineffective Assistance of Counsel Claims Against Defense Attorneys

        The United States Department of Justice recently released a new policy that will ban federal prosecutors from asking defendants to waive any potential ineffective assistance of counsel claims that they may have against their attorneys as a condition of accepting a plea. Previously, federal prosecutors had the ability to ask criminal defendants, who pleaded guilty, to waive their right to bring claims sounding in ineffective assistance of counsel. Now, federal prosecutors may not include language that constitutes such a waiver in plea bargain documents, and waivers included in documents that were executed prior to the implementation of this new policy may not be enforced.

       A criminal defendant’s Sixth Amendment right to counsel may be violated if an attorney did not adequately and competently represent the defendant and the result of the defendant’s trial or sentencing would have been different if the attorney had competently represented the defendant. Attorney General Eric Holder has stated that this new policy is reflective of the Justice Department’s commitment to preserving citizens’ constitutional rights, namely the Sixth Amendment right to counsel and the Fourteenth Amendment right to due process. In addition, this new policy will ensure that individuals receive competent representation as they respond to the criminal allegations stated against them.

          The criminal defense lawyers of Brown Paindiris & Scott can help you navigate the criminal justice system. For more information, visit our website.   

       

City Steam Brewery Café Defending Allegations of Trademark Infringement

City Steam Brewery Café is one of Hartford’s popular restaurant and entertainment venues, but the “City Steam” name may be in jeopardy. As reported in a recent Hartford Business Journal article, Anchor Brewing Co., which is located in California and manufactures Anchor Steam beer, has sued City Steam Brewery Café and asked the court to stop City Steam from using the “City Steam” name because they allege that similarities between the two names will confuse customers. City Steam Brewery Café has used the “City Steam” mark in conjunction with its products and services since 1997 and its bottled beers are now sold throughout New England and New York. In 2012 City Steam registered its “City Steam” trademark in the beverages category, whereas Anchor Steam registered its “Steam Beer” trademark in the beverages category in 1982. In our opinion, these particular marks are different enough so that the public is not likely to be confused, but trademark owners have a right, and an obligation, to enforce (or at least attempt to enforce) their rights in order to maintain protection.  

Trademarks are critical assets for businesses because they help consumers identify the sources of goods and services. Accordingly, a trademark communicates a business’s reputation and goodwill, so it is crucial for a trademark owner to stop any potential infringement of its mark before customers mistakenly purchase goods from other sources. To prove trademark infringement, an individual or business must show: that they own the trademark; that the allegedly infringing mark is very similar or identical to the mark that is already in use; and that the infringing mark is affixed to similar goods and services as the mark that is already in use.   

In deciding trademark infringement cases, courts evaluate a variety of factors to determine whether there is a “likelihood of confusion” between the two marks. Appearance is an important element, so courts utilize the “sight, sound, and meaning” test to determine whether two marks look the same, sound the same, and have the same commercial meanings. Courts also evaluate whether the goods or services associated with the marks are related. In addition, courts may consider the uniqueness of the marks; the similarity of the marks; whether the trademark holder can offer evidence of confusion, such as through consumer surveys; and the alleged infringer’s reasons for copying the mark.

The lawyers of Brown, Paindiris & Scott can help you to protect your intellectual property and defend against claims of infringement.  For more information, click here.

          

Connecticut General Assembly to Consider Bill to Implement Additional Ski Safety Standards: Will it Reduce Ski Facility Operators’ Liability or is it All Downhill From Here?

       Skiing is a popular winter activity, but hitting the slopes can be a risky endeavor. Connecticut law currently requires skiers and ski facility operators to take certain safety precautions. This legislative session, the Connecticut General Assembly will consider a bill that would require skiers to assume responsibility for properly using restraint bars while riding on ski lifts. Although the proposed legislation would limit a ski facility owner’s liability if skiers are injured by not properly using the restraints, ski facility owners and skiers are still responsible for complying with the current safety protocols. In fact, in a recent Hartford Courant article, Representative Janice Giegler, who introduced the bill, noted that many ski areas in Connecticut already utilize the proposed safety practices, but the legislation is necessary to formally codify the standards. 

            Raised Bill No. 5148, “An Act Concerning Ski Safety,” mandates that ski facility operators install restraint devices on ski lifts, post instructions so that skiers know how to properly use the restraint devices, and post notices stating that skiers are required by law to use the devices. The bill also includes a provision that would require ski facility operators to apply protective padding to hydrant snow-making equipment and lift towers located within the boundaries of the ski area.

            Although this bill would improve ski safety, it would not dramatically alter the current law. This is because the proposed legislation still incorporates all of the safety requirements presently codified in Connecticut General Statutes §§ 29-211 and 29-213. For example, ski facility operators will still need to mark trail maintenance vehicles so that skiers can see them, identify trail and slope entrances with markers, and mark lift towers located on trails or slopes that are not readily visible, among other safety measures. (Conn. Gen. Stat. § 29-211). Similarly, skiers will still be legally required to refrain from throwing objects from ski lifts, interfering with the operation of ski lifts, and placing objects in the ski area that may cause other skiers to fall, among other prohibitions. (Conn. Gen. Stat. § 29-213).

            Despite the implementation of these safety precautions, skiing can still be a dangerous activity, and generally, people participate at their own risk. Specifically, Connecticut General Statutes § 29-212 states that skiers assume the risks and legal responsibilities for any injuries that they suffer due to the “hazards inherent in the sport of skiing,” which may include variations in terrain, trees or objects not located in the boundaries of the ski trail, and collisions with other skiers. Nevertheless, if a ski facility operator is negligent in maintaining its facilities or implementing the legally required safety measures, it cannot necessarily avoid liability. In addition, ski facility operators cannot entirely avoid liability for their own negligent actions by requiring that skiers sign liability waivers.

            If you would like to know more about how the proposed legislation may impact your ski facility, the lawyers of Brown, Paindiris & Scott can answer your questions regarding Connecticut’s laws governing ski facilities and advise you on next steps.