25 September 2004

Markup Problems

For whatever reason, two fascinating—ok, fascinating to an IP nerd—pieces on the music business made the news this morning. The more straightforward of the two concerns bootleg recordings. Under a federal statute not in the Copyright Act (Title 17), sale of bootleg recordings is illegal. Forever. Judge Harold Baer, of the Southern District of New York, decided that this isn't such a good idea. Judge Baer's reasoning was roughly that if it looks like copyright, walks like copyright, and quacks like copyright, it must be copyright. The antibootlegging statute therefore fails on two grounds under this reasoning. First, mixed constitutional, treaty, and statutory doctrine indicates that copyright applies to fixations, and bootlegs by their nature are recordings of live events that are most emphatically not fixed. Leaving aside two obvious holes in this reasoning—that many live performances are, in fact, recorded by somebody authorized to do so, even if in poor quality, and that the bootleg itself may cause problems with the mechanical rights section of copyright law, which is a much more even-handed means of dealing with the issue—Judge Baer found a much more compelling, purely constitutional reason for rejecting the § 2319A: It has no time limit, while the IP Clause requires that Congress's provision of copyright protection be "for a limited time."

The real problem with bootleg recordings is now, and always has been, designation of origin and quality of goods—that is, trademark. One need not try to figure out whether bootleg recordings are "fixed" or not. One need only note that actual sale of the recordings inherently impinges on at least three types of marks: The performer's identity; the venue's identity; and any previously made authorized recording's identity. Thus, this isn't much of a loss—except that § 2319A allowed criminal prosecution for violating it, which is not a realistic possibility under the Lanham Act, despite explicit statutory authorization.

A ruling in the seemingly endless battle over J. Marshall Hendrix's estate (not online) appears to split the baby pretty evenly among the various claimants… and add a nice share for the lawyers, too. What a surprise. Judge Ramsdell determined that Jimi's father's will (virtually cutting Jimi's brother out of the estate) was valid, but that Jimi's sister had breached her fiduciary duties in managing the estate for the rest of the claimants, and requires both an accounting and payment of some of the claimants' attorneys' fees. The opinion maintains a rather even-handed approach to the various parties in the end, which is more than I could have done; this case has been tried in the media several times already. And it's not the only case concerned with the rights in question, as the disinherited brother is suing the sister in a separate action. All this before we get to the interesting question of who actually owns the recordings in question under some questionable recording contracts… In any event, the total legal fees when all is said and done will probably approach seven figures. I can think of an awful lot of prominent authors, artists, and musicians who would have like to earn that (inflation-adjusted) over a lifetime.

Today's Guardian includes Nicholas Clee's "The Bookseller" column, which manages to confront two critical trademark issues in publishing without ever saying the word. The more obvious one concerns closing of several longstanding imprints (think of GM's recent closure of Oldsmobile); the less obvious one… well, it's for another time, as even teasing the issue out of the column requires knowledge of some fairly abstruse publishing practices.