Lipton, Weinberger & Husick

Ask Dr. Copyright® About Coffee

Dear Doc:

I understand that under United States Trademark Law, you can’t register marks that are “primarily geographically descriptive” as you can in other countries, but you may register “geographic indications” as certification or collective marks. For example, in France, champagne has to actually come from Champagne and Roquefort has to come from Roquefort. The designation of “Appellation d'origine contrôlée” means that a St. Julien wine must come from that small area of Bordeaux. In Italy, the “DOC” designation means that regional names such as “Tuscan” must originate in Tuscany. However, US courts have ruled that “brie” and “gruyere” are generic for cheeses, even though they once designated cheese from a particular place. Is there any way to make sure that goods genuinely come from a particular place under US law?

Signed,
Mark Me Confused

Dear Mark:

Under United States law, Congress may choose to “preempt” state laws when it passes a federal statute, or to leave state laws in place alongside the federal law. For Copyrights, after the 1976 Act, Congress preempted all state laws that are similar. There is no state copyright, and all rights come under the federal law and are decided in federal court and in the Copyright Office.

The same is not true of trademark law. The United States Patent and Trademark Office explains, “Geographical indications (GIs) are indications that identify a good as originating in the territory of a country, or from a region or locality within that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin. Examples of GIs from the United States include "Florida" for oranges, "Idaho" for potatoes, "Vidalia" for onions, and "Washington State" for apples.” See our newsletter article on the subject. In addition, the Lanham Act, which encompasses trademark law, does not preempt state common, trademark and unfair competition laws, and those laws remain viable. In some instances state laws even provide greater rights than the federal law, and for geographical marks, this may turn out to be especially true where the origin of the product is an issue.

The most recent case in point of this is a Hawaii law that has just gone into effect covering coffee grown or processed in Hawaii. At present, there are approximately 436 federally registered trademarks with the word KONA in them relating to coffee! There were many products being sold as KONA coffee, but that contained 10% or less coffee grown in Kona, Hawaii. Most of the content of such coffee wasn’t even grown in Hawaii at all. Trademark law prohibits the use of misdescriptive marks, but litigating where the line is drawn is difficult. Producers were frustrated and consumers, confused. Chasing every supplier proved to be expensive and in the end, impossible for the small coffee farmers and their association. These farmers turned to the State Legislature for help.

Under the Hawaiian Coffee Labeling Act 211, which was enacted in July 2023, all coffee products carrying a Hawai'i geographical reference must include the disclosure of the location where the coffee was grown in Hawaii, and also indicate the percentage by weight of locally grown coffee and coffee grown elsewhere. This means that “Kona” coffee must be 51% grown in the designated region, and that the origin of the rest of the coffee in the package must be disclosed on the label. By 2027, this law will also apply to other coffee products as well as beans and ground coffee. There are other, lesser known coffee growing areas in Hawaii (Ka’u, Kauai, Molokai’i) to which the law also applies.

Because states must give each others’ laws “full faith and credit” the Hawaii law should have reach across the entire country. (Whether labeling that violates the law allows suit in Hawaii is an open question, however.)

The Doc thinks that despite the existence of geographical indication registrations for many products, (for instance, there are 259 registered marks for NAPA involving wine) other states may soon pass similar laws, so look out for genuine origin and content laws for Kentucky Bourbon, Chincoteague Oysters, and so forth.

Have a mark you’d like to protect? Give the attorneys at LW&H a call. They know this stuff.

Until next month,

The “Doc”

Wow! So honored…and so inexpensive if I want one to hang on my wall… only $199 (plus shipping, of course!)

Ask Dr. Copyright® About 'Surname' Trademarks

Dear Doc:

In the United States, you can register just about any trademark on just about anything. Marks that are not okay in foreign countries (like place names such as “champagne”) are routinely used a registered in the USofA. Why, then, did the Supreme Court nix registration of the mark “Trump Too Small”?

Signed,
Rube Marko

Dear Rube:

After a certain Senator from Florida remarked in a 2016 debate that we should not trust a candidate with “small hands”, a fellow named Steve Elster tried to register the phrase “Trump Too Small” for use on T-shirts that mocked the candidate who assured us that everything was fine in his, uh, pants. The United States Patent and Trademark Office refused, because it has a rule against registration of any mark that identifies “a particular living individual” without their consent. Elster said that this violated his First Amendment free speech rights, and now, the Supreme Court has told us what they think.

In Vidal v. Elster, the 9 Justices wrestled with the rule that a mark identifying a living person could only be registered if the consent of that person was obtained. (Never mind that there may be many living persons named “Trump”, and that the word is common English word…) The issue before the Court was a complex one about whether the restriction is “content-based” (meaning that the mark sought to be registered is being rejected based on what it says) or viewpoint-based (meaning that some marks are allowed while others are not, based on the meaning.) The Court concluded that because the Trademark Office had in the past rejected “Welcome President Biden,” “I Stump for Trump,” and “Obama Pajama”, the rejection was viewpoint-neutral but content-based.

The Court ruled 9-0 against Elster to uphold the rejection even though the Justices differed in their reasoning. Justice Barrett (joined in part by Sotomayor, Kagan and Jackson), wrote separately that the majority, led by Thomas, was “wrong twice over” in how the case was analyzed. Thomas, they said, was wrong to rely only on history to justify the ruling, and in any event, got his history dead wrong. Justices Kavanaugh and Roberts wrote separately that there could be other instances where viewpoint-neutral, content-based restrictions might be constitutional even absent an historical basis.

In the end, the registration was refused, but in the US, registration is NOT required to market goods or services under an unregistered trademark. Elster still gets to sell his shirts, and, the Doc supposes, warn us not to trust people who have “small hands”.

Do you have a trademark in need of registration? Other questions about intellectual property law? Call the attorneys at LW&H. They’re good at this stuff.

Until next month,

The “Doc”

Ask Dr. Copyright About Non-Competes

Dear Doc:

I just heard that the Federal Trade Commission (FTC) has effectively outlawed all “non-compete” agreements. What will that mean for businesses that want to protect their competitive advantages?

Signed,
Every Fatcat, Ever

Dear Mr. Large Feline:

For many years, companies have forced their employees to sign agreements that restrict where and how they work after leaving the company. For instance, engineers were told that they could not work in the same industry for a period of time. Doctors could not open a practice in the same city as the one in which they formerly treated patients. Electricians, plumbers, carpenters…they all had legal restrictions on where and how they could work if they left their employers.

Now the FTC has found that these non-competition agreements are anti-competitive and, except for some very senior executives and in connection with the sale of an entire business, they have been deemed an illegal restraint of trade under federal law (See p. 561) Businesses will have to notify their employees that the agreements are no longer in force, and they may not put new agreements in place. The FTC estimates that this new rule will make it easier for workers to find new jobs, and also to negotiate raises.

The FTC also said that with this new rule:
• New business formation will grow by 2.7%, creating over 8,500 new businesses each year.
• Workers’ earnings will increase by $400-$488 billion over the next decade.
• Health care costs will be reduced by $74-$194 billion over the next decade.
• There will be an average estimated increase of 17,000-29,000 more patents each year.

But, despite these benefits, businesses still need to find ways to prevent their intellectual property from just walking out the door with departing employees. The Doc sees an increased reliance and emphasis on the traditional IP tools in this effort.

For instance, the federal Defend Trade Secrets Act (18 U.S.C. § 1836, et seq.) provides a federal cause of action when a trade secret is misappropriated. Employers will want to be sure that their nondisclosure agreements contain the necessary language and whistleblower clauses to preserve rights in trade secrets, and that they take actual steps to keep things secret. State trade secrecy laws also remain operable, and often overlap with the federal statute.

The Doc naturally believes that copyright law will play a larger role in preventing unfair competition by former employees. Employees who create copyrightable works automatically do so for the employer, but consultants retain ownership unless a written and signed agreement says otherwise. Registration of copyrights gives an important weapon to the owner, and even forms of copyrightable works that may not usually be registered, such as supplier lists, specifications, user documentation, customer lists, and the like may be important in preventing a former employee from taking valuable information to a competitor.

Patent protection will also become a more important tool for preventing a competitor from using the know-how that comes along when it hires away employees and consultants from another company. It will now be more important than ever to have an assignment of rights agreement with each employee and consultant involved in the creation of technology.

Does your business have any non-competition agreements with its workers? Give the attorneys at LW&H a call. You must take action under the new rule within 120 days of final publication in the Federal Register. You should also review your policies and agreements to be sure that you retain the legal tools useful in prevention of unfair competition.

Until next month,

The “Doc”

Ask Dr. Copyright © About Innovation

Dear Doc:

For some time now, we have heard and read that Apple, Inc. has lost its famous ability to innovate. What does that mean, and do you agree?

Signed,
Your College Friend Who Refuses to Use Any Apple Products, Ever!

Dear John:

As you know, the Doc bought his first Apple computer in 1979 (and he still has that Apple ][+, and it still works!) He has owned countless Apple products since then, and now uses an iPhone, MacBookPro, iMac, AppleTV, AirPods, HomePods, Apple Watch, and owns stock in Apple. That said, the Doc also met Apple founders Woz and Jobs (a few times each), and Steve Jobs was a supporter of the Doc’s first startup venture, Infonautics, Inc. The Doc also served as Apple’s first “Legal Fellow”. The Doc has first-hand knowledge about the history of innovation at Apple.

So why do we see published statements like, “Once considered a synonym of innovation and prowess, Apple Inc. is under mounting scrutiny over its ability to sustain the crown of 'tech industry pioneers'. Co-founded by Legendary Tech. magnet, Late. Steve Jobs, the company made its mark with the famous slogan "Think Different," setting the stage for a series of groundbreaking products that reshaped entire industries. However, in recent years, Apple's innovation prowess has come under fire and has made many of its loyal customers wonder – ‘Has their beloved brand lost its Innovative edge?’”

The Doc teaches his students at the Johns Hopkins University Whiting School of Engineering that innovation is both a noun (“tools and toys”) and a verb: a process of creating added value. While most people understand innovating by making new things, they fail to appreciate that creating value from investments of capital is the core of an innovative organization. Apple excels at both sides of the innovation equation, and has managed to do so for a very long time.

Being innovative, however, does not necessarily mean being first. They say that you can usually recognize a pioneer by the many arrows lodged in his back. “First mover advantage” is, in many cases, overrated, because to benefit from it, the innovator needs to overcome many risks: technology, production, market introduction, supply chain, and many more. Doing this requires lots of capital, and a large supply of plain old luck. Apple rarely attempts to be the first in a product category, preferring to allow others to pave the way, and then designing its product to solve problems encountered by the pioneers.

There were personal computers before the Apple ][, but you had to build your own before you could plug it in and use it. There were computers with graphic user interfaces before the Macintosh (the “Computer for the Rest of Us”) but they cost $15,000 (Xerox Star) or $5,000 (Apple Lisa). There were laser printers before the LaserWriter, but no software that turned them into printing presses (AppleWrite and PageMaker). There were cellphones that could email before the iPhone, but they had tiny keyboards and no useful web browser or music player. In each case, what Apple added was a focus on how humans would use the technology to be more creative and more productive. This “human-centered design” philosophy has always been key to Apple’s innovative success.

So, has Apple lost the ability to innovate? Hardly! Apple has, however, taught its competitors how to be better. Just as Windows was a copy of the MacOS, and gradually matured to be very successful (any version before 3.1 was, frankly, terrible), and Android is a copy of iOS (just look at the design PowerPoint from Samsung that was evidence in the law suit between Apple and that company to see how each icon and function was analyzed and copied, the competitive landscape is more innovative than ever.

By the way, with each new product that Apple introduces, it seems that the world has the same reaction: “It’ll never work.” Just look at the press about Apple’s newest product, the VisionPro. That response is best summed up in the Doc’s favorite quote about innovation, from a book about telegraphs by Abraham Edelkrantz, published in 1796:

It often happens, with regard to new inventions, that one part of the general public finds them useless and another part considers them impossible. When it becomes clear that the possibility and the usefulness can no longer be denied, most agree that the whole thing was fairly easy to discover and that they knew about it all along.

So if you’re an innovator, give a shout to the attorneys at LW&H, each of whom is an innovator, as well as a student of innovation. They can help to protect that value you create.

Until next month,

The “Doc”

Dear Doc:

How can a person tell if one stuffed toy infringes the intellectual property rights in another stuffed toy? Asking for a friend.

Signed,
J. Sinestvet

Dear J:

When the Doc was about to graduate from law school, he was interviewed for a job at a prominent Philadelphia patent law firm. The Doc has a degree in chemistry, and had done graduate studies in microprocessor computer systems, and had worked in a patent law practice for two years. During the interview, the senior partner at the law firm abruptly marched the Doc out of his office and down the hall, and disappeared into a walk-in closet. The senior attorney emerged brandishing two stuffed mouse toys, which he held up to the Doc’s face and demanded, “INFRINGEMENT???”

The Doc, being a chemist, computer guy, and general technology nerd, replied, “How should I know?” Needless to say, the Doc did not get the job!

Even today, the Doc still has trouble understanding the plush (that’s what the toy folks call them) toy wars. Case in point: Squishmallows owner Kelly Toys is taking Build-A-Bear to court. Both Kelly Toys and Build-A-Bear filed lawsuits on the same day after Build-A-Bear started selling its Skoosherz line of plushies. (Kelly Toys Holdings LLC, et al. v. Build-A-Bear Workshop Inc., Case No. 2:24-cv-01169, in the U.S. District Court for the Central District of California and Build-A-Bear Workshop Inc. v. Kelly Toys Holdings LLC, et al., Case No. 4:24-cv-00211, in the U.S. District Court for the Eastern District of Missouri https://www.scribd.com/document/705525753/Build-A-Bear-lawsuit-via-Polygon.) For Kelly Toys, the problem is that Skoosherz look too much like its Squishmallows.

Kelly Toys filed its trademark infringement case in California, while Build-A-Bear filed a declaratory judgment of invalidity of trade dress case in Missouri. Kelly Toys outlined the Squishmallows history: They were released in 2016 with distinctive designs — they’re oval, usually animals, and have cute faces. Most importantly, they’re very soft and squishable. (Kelly Toys, by the way, is owned by Jazwares, which acquired the Squishmallow maker in 2020. Jazwares itself is owned by Berkshire Hathaway.) They were one of the top-selling toys of 2022. The company alleged that its Squishmallows line, of which there are more than 3,000, made $200 million in 2022, a 300% increase above the prior year So, when Build-A-Bear first revealed its Skoosherz line, the first thing people did was compare them to Squishmallows.

You can see why from the photo, no? Build-A-Bear said in its lawsuit that they aren’t copycats — they’re round, pillow-like versions of its own original plush toys. Noting that Build-A-Bear hired the same Chinese factory that manufactures Squishmallows, Kelly Toys asserts:

"Rather than competing fairly in the marketplace by creating its own unique concepts and product lines, Defendant Build-A-Bear, a company worth over $300 million, decided that it would be easier to simply copy, imitate, and profit off the popularity and goodwill of Squishmallows, all in the hopes of confusing consumers into buying its products instead of Squishmallows."

On the other hand, Build-A-Bear lawyers wrote. “From a toy designer’s perspective, each of these claimed trade dress features is necessary to either depict the various characters or animals, or is necessary to create this category of pillow-type plush that is currently trending.”

Kelly Toys has a history of litigating over its Squishmallows line including suits agains Tee Turtle’s Flip-A-Mallows toys, Beanie Babies maker Ty for its Puffies and Squish-a-Boos, and Dan-Dee International for its Squishy line. Several of these were dismissed, Build-A-Bear’s lawyers said. Others were settled, according to court records. Several lawsuits against individual stores remain pending.

INFRINGEMENT??? The Doc still, more than 40 years later, has no idea what infringes what. But the attorneys at LW&H can help you to sort it all out. Give them a call.

Until next month,

The “Doc”

Ask Dr. Copyright © About AI in Movies

Dear Doc:

As I understand it, one of the disputes during the recent SAG-AFTRA actors’ strike was over the use of artificial intelligence-generated actors instead of actual humans in movies and other performances. I think that there ought to be a law against that kind of thing!

Signed,

George Karlin (THE AI VERSION)

Dear George:

You may just get your wish! A proposed bill in Congress seeks to regulate the creation and use of AI-created replicas of actual people. Because these days, every bill simply must have a cutesy acronym, the draft bill is called the “Nurture Originals, Foster Art, and Keep Entertainment Safe Act”, (“NOFAKES Act”). It is being cosponsored by Senators Chris C***s (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC).

The sponsors say that they are responding to concerns about the risk of AI creating images of real people (alive or dead) that portray them doing and saying things they wouldn’t agree to, and/or failing to compensate them for unauthorized uses of their features. This would be the first federal law establishing a “right of publicity”.

Under U.S. state laws, the right of publicity protects against the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial purposes. The right of publicity is protected by state common or statutory law and only about half the states have this law.

As defined in the proposed federal act, the term “digital replica” means a newly-created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that (a) is [nearly indistinguishable] from the actual image, voice, or visual likeness of that individual; and (b) is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear. Of course, anyone would have the right to authorize the use of their image, voice, or visual likeness in a digital replica if they wish to do so. In the case of someone who is dead, the right would pass to the heirs, and this right would be considered a personal property right. The right would last for seventy years after the death of the individual portrayed. This is like copyright, which protects works for the life of the author plus 70 years. After expiration, the persona enters the public domain (so watch out for fake Albert Einstein's popping up everywhere!)

Enforcement against violators is by way of civil lawsuits, and damages would be the greater of $5000 per violation or the damages actually suffered by the injured party. If the defendant acted with malice, fraud, or oppression, the court could also award punitive damages.

Interestingly, the proposed law also has a form of “fair use” exception that provides:

It shall not be a violation of paragraph (1) if, regardless of the degree of [dramatization]—(A) the applicable digital replica is used as part of a news, public affairs, or sports broadcast or report; (B) the applicable digital replica— (i) is used part of a documentary, docudrama, or historical or biographical work; and (ii) uses a representation of the applicable individual as that individual; (C) the applicable digital replica is used for purposes of comment, criticism, scholarship, satire, or parody; (D) the applicable digital replica is used in an advertisement or commercial announcement for a purpose described in subparagraph (A), (B), or (C); or (E) the use of the applicable digital replica is de minimis or incidental.

The NOFAKES Act was introduced in Congress on October 12, 2023. There will, of course, be hearings and testimony from interested parties, including the movie studios, the actors’ union, AI companies, law professors, etc., etc. etc. before the Act is finally put to a vote (if that ever happens). In related news, a number of bills have been introduced that seek to label and/or limit the use of AI in political advertising. It is, however, unlikely that these bills will become law before our next election in November, 2024.

If you’ve been duplicated by AI, or have any other cutting edge intellectual property question, give the attorneys at LW&H a shout. Every one of them is a genuine human, and knows lots about this area of the law.

Until next month,

The “Doc”

Ask Dr. Copyright © About Dance
Dear Doc:

Having just watched “Dancing With the Stars”, and feeling a bit down over Barry Williams’ loss (but happy that Jason Mraz made it to the finals), I got to wondering if dances can be protected by a copyright registration so that they can’t be copied. May just anyone “moonwalk”, or did Michael Jackson register that move? Inquiring hoofers want to know!

Signed,
Alfonzo and Julianne (no, not them!)

Dear A&J:

The 1976 Copyright Act (17 U.S.C. §101) expanded protection for dance by adding “choreographic works” as eligible for copyright protection. (Before the 1976 Act, “narrative” dance could be protected as a dramatic work, but “abstract” dance could not. Narrative is the kind one sees in classical ballet, and often on the Broadway stage, while abstract is what you’d find on the dance floor at a bar mitzvah.) However, when Congress wrote the law, it did not explicitly say what constituted a choreographic work! Is it Jazz Hands? The Lindy Hop? Sadly, we do not have Len Goodman around to ask anymore!

In a recent case, Hanagami v. Epic Games the U.S. Court of Appeals for the Ninth Circuit has adopted the definition of “choreography” set forth in the Compendium of U.S. Copyright Office Practices: “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” The Court also provided guidelines for lower courts to use when assessing a claim of dance copyright infringement. In that case, Choreographer Kyle Hanagami sued Epic Games, Inc., the creator and developer of the Fortnite video game, for copyright infringement, claiming that Epic Games copied one of Hanagami’s choreographic works. In 2017, Hanagami created and published on his YouTube channel a video depicting a five-minute dance performance (the “Hanagami Choreography”). Hanagami subsequently obtained a copyright registration for his choreographic sequence. In 2020, Epic Games released a new chapter of its Fortnite video game and included virtual animations that players could purchase for their avatars to perform. (The Doc has no idea why one would purchase such a thing, but then, the Doc is old enough to remember when people danced the “mashed potato” and the “frug”.) Hanagami alleged that one of these animations contained a segment of the Hanagami Choreography, and that this particular segment was the most recognizable and distinctive portion of his work.

Epic Games moved to dismiss Hanagami’s claim on the bases that (1) the allegedly copied dance steps were not protectable and (2) the works were not substantially similar. The trial court granted the motion, holding that the steps Epic Games purportedly copied were just a number of individual poses that were unprotectable when viewed in isolation. The court also found that Hanagami was entitled to protection only for the way the dance steps were expressed in the work as a whole, and the collection of purportedly copied steps constituted only a small part of his full work. Based on this scope of protection, the district court compared the Hanagami Choreography to the Epic Games animation and determined that the works were not “substantially similar”.

The Ninth Circuit Court of Appeals reversed the trial court’s ruling saying that the trial court did not properly break down the elements of the choreographic work. They agreed with Hanagami’s argument that individually unprotectable “poses” are not the only relevant element underlying a choreographic work, and the relationship between movements and patterns and the choreographer’s creative approach to composing and arranging them together is what defines the work. The court said that other forms of copyrightable material are also composed of individual elements that are unprotectable when viewed in isolation (such as words or shapes), but that the particular combination of these “building blocks” may be eligible for copyright protection (see, Robert Rauschenberg, “White Painting” [three panel], 1951) The Court held that a choreographer’s original selection, coordination, and arrangement of various dance movements is protectable. It went on to say that the job of the lower court is to compare the selection and arrangement of elements in the plaintiff’s choreographic work with that in the allegedly infringing work to determine whether the two works are substantially similar.

The court went on to do that comparison. A side-by-side video prepared by Hanagami’s counsel showing the allegedly copied counts from Hanagami’s choreography next to corresponding clips of the Epic Game animation was referenced by the court and can be found at: https://www.youtube.com/watch?v=vXYDr9o_FJY. The case now goes back to the trial court where, one may imagine, a dance-off will settle the whole kerfuffle. Perhaps a panel comprising Carrie Ann Inaba, Bruno Tonioli, and Derek Hough will be tapped to serve as the court-appointed experts? One can only hope!

Oh. And if you’re wondering, Michael Jackson not only never registered a copyright in the Moonwalk, he didn’t even invent it, as it was a tap dance move called the “backslide”. MJ did perfect it and popularize it, however. He was also a patented inventor of a special shoe that allowed him to give the illusion of leaning far beyond his center of gravity, which he used in the video for “Smooth Criminal” So, if you’ve got the moves, the attorneys at LW&H are here to help protect them, and the rest of your intellectual property. Quickstep on over, and they’ll show you some legal fancy footwork.

Until next month,
The “Doc”

Dear Doc:
Since literally everyone in the Universe is talking about Taylor Swift, I figured that you might want to, as well. So have at it!

Signed,
TK


Dear TK:

The Doc will, unlike literally everyone in the Universe, refrain from peppering his response with the titles of Ms. Swift’s songs, and will instead, stick to the copyright issues pertinent to her career and success. Right away, you can tell that the Doc is an erudite and well-informed expert who does not pander to popular fashion.

If you have not been living in a cave, you probably know that Taylor Swift has spent the past few years recording and releasing “Taylor’s Version” editions of her early albums. These efforts have included additional songs from her “vault” that were not part of the original efforts, alongside re-recordings of her songs from the original albums. In undertaking this effort, she is countering the way in which record companies and private equity firms treat musical artists.

Early in her career, Taylor Swift, like most musical artists, sought a “record deal” with a “major label”. These deals usually transfer the copyright to recorded music to the record company, which pays for studio time, production costs, backing musicians, and the like. In the case of her early albums, this is what Taylor did at age Fifteen when she was Innocent, and her record label, Scott Borchetta’s Big Machine Label Group, ended up owning the recordings, Forever and Always.

In music copyright, there are many separable rights: the recording itself, the score, the lyrics, the arrangement, and so forth. Each of these rights may be separately owned, and Taylor transferred the rights to her recordings to her record company, but kept (as is now customary) all of the other rights. Under copyright law, titles (of songs and of albums) are not copyrightable, and the record company thus can’t own those.

Years after she recorded her albums, and became the biggest thing in music since Mozart, Taylor’s record company sold the copyrights to her records to a private equity company, Ithaca Holdings, headed by a fellow named “Scooter” Braun. Ms. Swift had a dislike for Braun and some of his clients, and reacted negatively to the news that her “master recordings” had been sold to his company. (Braun reported paid $300 million for the rights, and Ms. Swift was not legally entitled to any of that.) (Note that the Doc did not say that there was Bad Blood between the parties!)

This is where things get interesting, in a copyright sense. Taylor Swift decided to Begin Again and to kill the value of what Scooter bought. How? Well, remember that she had sold the rights to the recordings, but still owned the copyrights to the music, lyrics, arrangements, etc. She just went into a studio, hired her own musicians and production staff, and made new recordings of each of the old songs! To each song title, she added the words “Taylor’s Version”. Her fans immediately started listening to, and buying the new versions, and, more importantly, staying away from those owned by Scooter. To many, this strategy seemed Better Than Revenge.

Of course, now being infinitely more famous, as well as more experienced, Ms. Swift negotiated a deal with her new record label that gives her full ownership over her music. This End Game probably gave her Closure. But, Is It Over Now? Has Karma exacted its revenge on Braun, or will he just Shake It Off?

There are, of course, many more messy details, allegations and denials, which are recited here and here.

The Doc always marvels at how the music industry has created a contractual and legal mess from copyrights, and generates so many cases that go to court and get more publicity. Moreover, only music has such a Byzantine set of rights, contractual customs, and interlocking companies, rights management organizations, and hangers-on. Taylor’s Version is just the latest chapter in that evolving soap opera.

Have a question about copyright (or any other intellectual property?) Give the attorneys at LW&H a call. They can unravel a Gordian knot (even if it isn’t named after Berry Gordy!)

Until next month,

The “Doc”

P.S. - The Doc apologizes for succumbing to the popular trend of inserting Taylor Swift song titles into this article.