Is that the Real McCoy?

Counterfeit products are fake goods designed, packaged, and branded to look like the real thing. They were historically of a lesser quality. For many years, the counterfeit market was considered a problem primarily for manufacturers of well-known luxury or high-end consumer goods such as name-brand clothing, shoes, purses, shoes, watches, jewelry, and electronics.

The fake items were sold by street vendors to persons who might not be likely customers for the genuine products, so actual “lost sales” to the brand owner were questionable. In most of these situations, purchasers would have (or should have) a fairly good idea that they were not purchasing a genuine product, so lack of quality would not be a surprise or blamed on the brand owner.

Maintaining Trademark Rights: A Primer on Use and Termination

Newcomers to trademarks are often surprised (and frequently frustrated) to learn that unlike business names and domain registrations, trademarks must actually be used in order to establish rights and are neither acquired nor maintained merely by registration. United States trademark rights are use-based. Common law rights are established and maintained by actual use of a mark in connection with goods and services. Although an application for a U.S. registration can be filed prior to use (“intent to use”), actual use in interstate commerce is required for the issuance and maintenance of the registration. To maintain a registration, proof of the continued use of the mark is required between the fifth and sixth year after registration and with each renewal of the registration (every 10 years).

“Use” for purposes of establishing and maintaining trademark rights generally means bona fide use in the ordinary course of trade and is the same standard for purposes of obtaining and maintaining a federal registration. The use must be more than nominal. First use should not be a one-off sale created solely for obtaining a registration, but should be initiation of use in the ordinary course for the relevant goods or services. Ongoing use for maintenance purposes should be regular and continuous in the ordinary course, although temporary non-use may be excused for reasons such as a change in governmental regulation or authorization, product modification or redesign, supply line disruption, labor dispute, etc., provided that the owner of the mark at all times has a bona fide intention to resume use.

An owner’s rights in a mark may be terminated, and an applicable registration cancelled, at any time for non-use of the mark. Under federal law, non-use for three consecutive years creates a presumption of abandonment placing responsibility on the owner to prove bona fide use or an excusable suspension for the relevant period in question. Historically, the risk of the loss of rights for non-use has been limited to private action, either as a defense to a claim of infringement, or through a proceeding to cancel the registration of a “confusingly similar” mark blocking a new applicant’s registration. However, four years ago this month, the United States Patent and Trademark Office (USPTO) implemented a post-registration audit program intended to pro-actively rid the USPTO register of marks that were not being used as required by law.

Trademark registrations are issued for use of a mark in connection with specific goods and services grouped in different classifications. Where an application is filed for a mark covering multiple goods within a class, a specimen showing the use is required for one item within each class. To maintain the registration, similar proof must be filed between the fifth and sixth year after registration, and for each renewal. Although these submissions include a declaration of the applicant/registrant that the mark is in use on all listed goods and services, the fact that specimens are not required for all goods within a class make it relatively easy to inadvertently or intentionally submit an inaccurate declaration for goods or services that were never used under the mark or discontinued without any intention of reviving.

For years, unsupported claims of use in registrations have gone mostly unnoticed, discovered only if a subsequent applicant, upon being refused registration because of likely confusion, discovered the nonuse and could prove it to the USPTO examiner, or undertook a cancellation proceeding against the prior registration. Under the new audit program, the USPTO randomly selects registrations with required maintenance filings to prove use of goods and services covered by the registration that are chosen by the USPTO. A registrant unable to prove use of the audited goods or services will be required to delete them from the registration and may receive a second demand for proof of all of the remaining goods or services in each class for which the owner has been required to delete goods or services initially identified by the USPTO. A per-class fee is charged each time goods or services are deleted, so it is advisable to remove all goods or services for which proof of use cannot be provided - not just those chosen for audit – in the first response. Failure to respond to an audit will result in cancelation of the registration.

Since commencing the program, the USPTO claims to have canceled or removed goods or services from registrations in more than 50% of audited registrations.

Prior to the adoption of the audit program, even responsible registrants would typically remove goods and services from their registrations only at the time of making a maintenance filing. However, to avoid incurring fees, registrants are now advised to delete goods and services prior to the opening of a maintenance filing window.

Because continuous use is basic for maintaining rights in a trademark and corresponding registration, owners should regularly conduct a self-audit to verify not only that it is used on the goods and services covered by any registration, but also that the mark is being used consistently and appropriately. For example, always use the mark as an adjective and not a noun (not “keep KLEENEX in every room” but “keep a box of KLEENEX brand facial tissues in every room”) or a verb (not “XEROX your document but “make a XEROX copy of your documents”; avoid using it in possessive or plural form; where practical, the mark should be accompanied by ® (federally registered marks only), TM or SM (for registered or unregistered trademarks or service marks, respectively); and use the mark in a consistent format and as shown in any registration, without alteration or variation (this can be any style of a word mark registration, but without variation in any design registration).

NCAA Athletes May Get an Entrepreneurial Boon

For more than a century, the National Collegiate Athletic Association (NCAA) has sought to protect amateurism in college sports by preventing student athletes from being compensated for or otherwise profiting from their collegiate sports participation. Student athletes have been largely prohibited from receiving any compensation or benefits for playing college sports except for the direct educational benefits associated with the cost of attendance — scholarships, books, room and board, and, more recently, limited stipends for living expenses that could include travel costs. The ability of the NCAA to enforce these rules changed on Monday, June 21, when the U.S. Supreme Court unanimously ruled that restrictions under consideration in the case constituted an unlawful restraint of trade (Alston vs. NCAA). 

The Alston decision addressed only the NCAA rules limiting the benefits schools can provide to student athletes. What specifically will change as a result of this decision is as yet unknown, but we will likely see some creativity among schools scrambling to enhance offerings to attract top athletes. Examples of previously prohibited benefits that may now be available include paid internships and graduate school scholarships, broader definition of what constitutes living expenses for stipends, and the removal of caps on disability insurance for injured athletes. NCAA rules that were not at issue in this case, but which are the subject of a separate antitrust lawsuit (House vs. NCAA), are the rules prohibiting student athletes from the commercial exploitation of their name, image, and likeness (NIL) rights. 

Every person has NIL rights under legal theories of the “right of privacy” and the “right of publicity.” It is the right of each individual to prevent others from using his/her name, image, or likeness for commercial purposes, and at the same time to profit from his/her own exploitation of such rights. While it seems that every other aspect of the multi-billion dollar college sports industry has been exploited for commercial purposes, the NCAA has adhered to a strict prohibition of the rights of student athletes, even entrepreneurial ones, to profit from their own identities. Years of public pressure on the NCAA to relax its rules on this issue have been unsuccessful in bringing about any meaningful change by the NCAA, and now it may have lost its ability to control the issue. 

Trademark Scams: A Different Kind of Pandemic

 

As we near the end of another year, I am sorry to report that the number of misleading solicitations and notices received by trademark applicants and registrants has become so prevalent as to be almost epidemic (maybe a poor choice of words at this time but you all know what I mean).

Information regarding trademark applications and registrations is readily available in the public records of the United States Patent and Trademark Office (USPTO), as well as international and foreign registers. Private companies use this information to send official looking notices of impending registration maintenance deadlines, opportunities for private registry or other database registrations, watch services and similar offerings — all typically warning of an urgent need to act or risk adverse consequences such as the loss of trademark rights. In some instances, the notice may appear as an invoice or bill suggesting that the payment of a fee is the only requirement for satisfying the subject matter of the notice. These notices maybe sent by mail, email or even text message.

At one time, these scams were relatively obvious. Messages sourced from a strange email address, using poor grammar and misspellings to communicate unclear purposes for requested information or payment — all of these were obvious tips that something was not right. Unfortunately, misleading and fraudulent solicitations have increased in sophistication as well as frequency.  

Solicitations and notices for services relating to a registration or pending application usually come from an organization using an official-sounding name such as the “Patent and Trademark Office,” “Patent and Trademark Bureau,” “Trademark Compliance Center” or some other combination of words that appears to be government related. The notice will have accurate information regarding the subject mark and include official looking bar codes and logos in a format that is similar to or could be expected to come from a legitimate government source. Some may even include the official USPTO logo, or that of a legitimate international or foreign government registry. While these notices generally refer to an actual filing requirement, they are not always accurate about the timing of the requirement and the quoted fees are usually high, without specifying applicable government filing fees. 

What’s in a Name?

The NFL team formerly known as the “Washington Redskins” recently announced that it would play the 2020 season as the “Washington Football Team.”

After years of defending the “Redskins” name against claims that the mark was racially insensitive, and vowing to “never” change the name, the team owner reversed his steadfast position after the death of George Floyd in late May, when FedEx threatened to cancel its remaining payment obligations under its stadium naming rights contract if a change was not made. 

Given the timing of the decision, it shouldn’t be surprising that the team wants more time to select a new name. A name change of any kind is a big deal, but even more so with a professional sports team.

Teams often want the name to reflect something about the city or state that they represent (Pittsburgh Steelers, Green Bay Packers, Minnesota Vikings), but may want to consider broader appeal if the name is to have value for a possible move or sale to another location (although that didn’t seem to prevent the New Orleans Jazz from becoming the Utah Jazz or the Minneapolis Lakers becoming the Los Angeles Lakers—even though Utah isn’t known for its jazz scene and there aren’t really any lakes in LA…). Fans appreciate a name that suggests strength or bravery (Pirates/Buccaneers, Lions, Bears), but want something unique that isn’t used by a half dozen high schools and colleges in every state (Eagles, Cardinals, Tigers, Wildcats). True fans of the team will remain loyal regardless of the name, but let’s face it, an interesting name and cool logo can’t hurt sponsorship revenue and merchandise sales. 

On the other hand, considering the lengthy controversy over the name, one would think that the team might have had something on the shelf. 

Pro-Football, Inc. is the owner of the Washington Football Team. Founded in 1932 as the Boston Braves, the team was renamed the Boston Redskins in 1933, probably to avoid using the same name as Boston’s professional baseball team. In 1967, the team was issued its first U.S. trademark registration for its name, and went on to obtain additional registrations during the 1970’s including one for its logo of a Native American warrior. In 1990, the team was issued a registration for THE REDSKINETTES used for its cheerleading squad (which had at least stopped wearing black-braided wigs nearly 20 years prior to this registration). These registrations were granted in spite of long-standing trademark law barring the federal registration of “disparaging,” “scandalous,” and “immoral” marks. 

However, only two years after registering THE REDSKINETTES, a new application to register WASHINGTON REDSKINS for clothing and other merchandise was refused by the USPTO on grounds that the mark was disparaging of Native Americans. The USPTO’s refusal was issued on the heels of a petition filed by a group of Native Americans challenging the team’s existing registrations on grounds of disparagement. While this matter dragged on, a second group of Native Americans filed a petition to cancel the team’s registrations in 2006, which was put on hold pending a final decision regarding the prior 1992 petition which was now dragging through the federal court system. Finally, in 2009, after losing on appeal, the petitioners/plaintiffs on the first action were declined review by the Supreme Court. 

In 2014, the Trademark Trial and Appeal Board (TTAB), acting on the second (2006) petition ordered the cancellation of the Pro Football, Inc.’s six existing registrations (the 1992 application for a seventh registration was suspended pending these court/administrative proceedings). The TTAB decision was upheld by the federal district court, but was on appeal when in 2017 the U.S. Supreme Court, in an unrelated case (Matal v. Tam, regarding registration of the mark THE SLANTS for a rock band), ruled that the “disparaging” clause violated free speech protected by the First Amendment and was therefore unconstitutional. With the Supreme Court ruling, the basis for the challenge to the Washington Redskins trademark registrations was gone, the registrations were reinstated, and the last application filed in 1992 was issued a registration in 2018.  

After more than 25 years of dispute, the team declared victory, but in an ironic twist, it was soon to find out that the mere right to register their marks would not make the public view the marks as any less disparaging. 

It is important to note that the Tam case, which determined disparaging marks were free speech and not to be denied trademark registration, did not address “scandalous” or “immoral” marks. That issue was addressed by the Supreme Court last year (Iancu v. Brunetti,, regarding registration of the mark FUCT – for “Friends U Can Trust” – for a clothing line). Not surprisingly, the Supreme Court followed its Tam decision and held that refusing registration of marks on grounds that they were scandalous or immoral would also violate First Amendment free speech. 

 

Out of curiosity, I did some non-scientific research in the USPTO records and could not discern any noticeable increase in applications for “disparaging” marks following the Tam decision, but there are more than a few recent applications that would clearly have once been considered “scandalous” or “immoral.” While it may be difficult to identify what may be disparaging, I thought a good start for scandalous marks would be George Carlin’s “Seven Words You Can Never Say on Television.”   All of these words can now be said on cable, and some are even reasonably common on network stations, but it is still surprising to see that they are being considered for brands.

If you think about doing your own research, I recommend you stick to the USPTO records. If you do a general browser search, you will plant cookies that attract ads you do not want to see.

Entrepreneurialism in the Age of COVID-19: from the Sublime to the Ridiculous

Necessity is the mother of invention. We’ve all heard that common phrase. When your need for something is imperative, you will find a way to get it.

While researchers around the globe scramble to meet obvious needs, including new or improved diagnostic tools and methods for detecting the COVID-19 virus, pharmaceutical preparations and devices for treating the disease and — ultimately — a vaccine to prevent it, others have responded to immediate and urgent needs by modifying or re-purposing existing devices and technology to address immediate and urgent concerns.

Methods of cleaning face masks to allow repeated use and modifications of ventilators for multi-patient support may have been developed as temporary fixes, but will likely evolve into longer-term solutions, now that we have experienced the need. Over time, inelegant “MacGyver fixes” birthed in crisis will be improved and institutionalized, but only because their usefulness or benefit was first proven through critical need.

My Valentine to the Presidents

It is February. Entrepreneurs are all about competition, so while we celebrate the birthdays of Washington and Lincoln, and enter the 2020 presidential election season in earnest, let’s have some fun and test your knowledge about our past presidents. (Answers are below)

Family Relations
1. Two pairs of father-son presidents.
2. Grandfather and grandson presidents.
3. Distant cousins.
4. Related to 11 presidents by blood or marriage (according to genealogists).

Birth
5. First American-born president
6. First president born outside of original 13 states
7. First president born west of the Mississippi
8. Presidents that were adopted
9. First president born in a hospital

Physical Attributes/Age
10. Tallest president
11. Shortest president
12. Youngest president (at time of taking office)
13. Oldest president (at time of taking office)

Marriage
14. Only bachelor president (never married)
15. Three presidents married while in office
16. Three presidents whose wives died while they were in office
17. First divorced president

Children
18. Only president to have a baby while in office
19. Most children
20. Only president with twins

Education
21. Nine presidents who did not go to college
22. President taught to read and write by his wife
23. First president to hold a doctorate degree

Luck of the Irish?

It is March and St Patrick’s Day is just around the corner. My mother was proudly Irish — possibly full-blooded, although family lore has it that there might be a little French in the mix. With the DNA capabilities these days, I could maybe get some clarity, but part of me likes the mystery. 

My Irish ancestors were so poor that several left Ireland in the early 1800s, before the potato famine. Some came in through Canada because Canadian ship fares were often cheaper; others came through New York. They didn’t linger long on the East Coast, but got jobs building the canals and railroads going west. They were settled in Ohio, Iowa, and Minnesota by the time the potato famine forced other family members to leave Ireland.

I remember events with my mother’s family, which at the time of my childhood still included grandparents and great uncles and aunts that were the first generation born in America. The gatherings were noisy and animated — a constant cacophony of “discussions” regarding current events, politics, and religion. In the midst of the din, it was not uncommon to witness a spontaneous recitation of some well-known poetry, or occasionally something more obscure or even original. It was a time for books to be recommended and shared. My uncle Johnny played the guitar and sang what songs were acceptable having spent 20+ years in the navy. The food was mediocre. 

What I don’t remember are conversations about business, industry, careers, or even work. In fact, I’m not really sure what most of my Irish relatives did for their livings. It simply wasn’t a topic of conversation. Was it because it didn’t matter or because they had no historical connection to "business?” Their families came to America with no money, education, or skills. They were looking for jobs — not business opportunities. The same persons that could quote Yeats or Wilde or Joyce never spoke of great Irish industrialists or inventors.

“Those who cannot remember the past are condemned to repeat it.” - George Santayana

I’m going to depart from discussing my usual intellectual property and technology subjects and step on my colleague Dave Morehouse’s toes with discussion of a book. Actually three books—Ken Follett’s Century Trilogy.  

The first book, “Fall of Giants,” follows five interrelated families from Wales, England, Russia, Germany, and the U.S. as they experience social and political issues at the time of the First World War. The second book, “Winter of the World,” continues with these five groups through the rise of the Third Reich, World War II, and the beginning of the Cold War. The third and final book, “Edge of Eternity,” continues the families’ stories in the 60’s, 70’s, and 80’s.

I first read these books as they were published between 2011 and 2014. While I don’t often reread books, particularly when they are this voluminous, I was recently drawn to them for a second look. If you have read Follett, you are familiar with his creative and interesting use of fictional characters and occurrences to illustrate and explain actual historical events. But unlike dry historical narratives, he gives you a sense of the human side of why things happened. In my initial read, I found the human stories to be most compelling, but viewed them largely in their historical context—things that happened 100, 80, and 50 years ago. In my second reading, I am drawn to the broader backdrop and some striking relevance to current social and political behavior.  

Prepare to Pay More for Tunes

Due in large part to the active policing of performing rights organizations (PROs)—American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), and Society of European Stage Authors and Composers (SESAC)—most businesses understand that music is protected by copyright, and using it for commercial purposes, even if only as background sound for a photography studio, likely requires the payment of royalties.
 
Music licensing is complicated. Copyright interests attach to the composition itself (notes and lyrics), as well as any sound recording of the composition. It is one license if you want to perform the work (maybe more if the composition was created by persons holding joint interests, or you want to perform a specific arrangement, etc.) and two licenses if you want to use/play a sound recording for commercial purposes. 

Identifying applicable copyright interests and negotiating individual licenses for even a limited playlist would be maddening—for both copyright owners and consumers. PROs have substantially eased that burden by creating a one-stop shop that both issues blanket public performance licenses and collects the public performance royalties on behalf of the copyright owners. Unfortunately, each PRO covers different music/artists, and although they have online searchable lists, it is rare that a business will be fully covered by the repertoire of a single PRO.  And while business owners have generally accepted (often grudgingly) that they probably need a license from all three mainstay PROs—ASCAP, BMI, and SESAC—a fourth is now actively on the scene.

Look Before You Link

How often each day do you send an email, post a Facebook message, or tweet? Add content to your business website? Write a blog?

In those communications, how often do you include a link to third-party material that directs someone to information or an image that is referenced in your communication, supports your conclusion, illustrates your point, or is simply interesting or beautiful or funny?

If you are paying attention to the congressional testimony of social media giants regarding questionable political advertisements and phony accounts, you may (should) now pause before you insert a link to consider whether you are referring to material that is “real” and worthy of repeated disclosure. But how often do you consider whether your linking might constitute copyright infringement?

Early in Internet history, it was accepted that linking to a third-party’s home page did not require permission, and not long thereafter, deep linking (bypassing the home page to go directly to specific material) was generally accepted as not constituting copyright infringement. Ten years ago, the Ninth Circuit determined that in-line linking and framing of photographic images (elements from another site appear on the website being viewed) by Google did not constitute copyright infringement because Google servers did not actually store the images. The Google link merely instructed the user’s browser where to find the images that were then displayed directly from the third-party server(s) on the Google page. Under this “server test,” only the third party is actually displaying and distributing the material directly from its server. The party that merely provides the link is therefore not liable for copyright infringement. The Court expressly noted that it didn’t matter if users thought they were viewing the images from the Google web page as unlike trademark law, copyright law does not protect against consumer confusion.

How to Enjoy an IP-Safe Big Game

For only the second time in NFL history, Minnesota will host a Super Bowl game.

In 1992, Minnesota hosted Super Bowl XXVI at the Hubert Humphrey Metrodome.    Gloria Estefan was the halftime headliner, and Olympic figure skating champions Brian Boitano and Dorothy Hamill skated on Teflon.  The game was played at the end of January and I’m sure it was cold.  I don’t remember much about the game, but I seem to recall that there were a lot of “Super Bowl” events and activities around town – or maybe not.

Super Bowl LII is less than six months away, and will be played in the new US Bank Stadium.  Hosting the Super Bowl presents big opportunities for Minnesotans.  Hotels, restaurants and retail stores in Minneapolis and the surrounding communities will realize millions of dollars from housing, feeding and entertaining participants, fans and the crews covering the event for media outlets throughout the world.  There will certainly be a number of “events” and merchandising surrounding the game, but if you are planning to participate, be careful what you do and how you promote it.

Does your software make you WannaCry?

The recent WannaCry ransomware attack brought back memories of my own experience with ransomware more than four years ago. 

Thankfully, that was the only time I fell prey to this cruel malware that encrypts the user’s files and demands payment for unlocking them.  At the time, I was annoyed. It was an inconvenience to be unable to use my home computer, but it wasn’t a crisis.  I could afford the time to find a way to decrypt the ransomware (or let my husband figure it out while I was at work, although I think he might have preferred that I just pay the ransom…)  

As If We Didn't Get Enough During the Campaign...

If you shop on Amazon, or watch the late night talk shows, you have probably seen the Make America Great Again Red Cap ornament (available at prices ranging from roughly $150 to over $200). It is listed on Amazon as “by Trump”.  Of course it is.

But just to be sure, I checked the United States Patent and Trademark Office records and confirmed that Donald Trump had indeed registered the mark MAKE AMERICA GREAT AGAIN for political action committee services and fundraising in the field of politics, as well as clothing, bags, buttons, bumper stickers, signage and similar items typically associated with political campaigns.  (The mark was assigned to the non-profit corporation Donald J. Trump for President, Inc., which currently owns the registrations, so “by Trump” may not be technically correct, but who really cares so long as the revenues are reported by the correct party.)

So Why Have I Crossed Some Words Out?

The 2016 Summer Olympics are upon us – this time in Rio de Janeiro.  The build-up to these Games has been focused as much on concerns over Rio’s readiness, the Zika virus, terrorist threats, contaminated water and the Russian doping scandal, as on the athletes who will be participating and probable medal contenders.  But as the Games open, I become giddy with anticipation – not just for the events, but the back stories of individual athletes and teams—and for the advertising.

Major sporting events bring out some of the best in creativity, but ads associated with the Olympic Games often have the added characteristics of emotion, pathos and goodwill that make them particularly appealing.

Update on Google Books as Fair Use

In the early 2000’s, Google, in cooperation with certain libraries, publishers and authors, began the monumental task of scanning and digitizing books for the purpose of creating a database that would be publicly available and searchable. It launched Google Books in 2004. Although initially limited to the collections of a few major libraries, Google hoped to eventually include all available publications. 

Google Books is a nifty site that performs full text keyword searches of various works (more than 25 million scanned to date) to provide basic bibliographic information and links to bookstores and libraries where a book may be purchased or borrowed. Complete copies of books that are no longer subject to copyright or for which permission has been granted are available for complete view; sometimes they can even be downloaded. Previews or “snippets” may be available for works that are still under copyright (and included without the author’s or publisher’s permission), and in some cases, only basic “card catalog” information may be available. 

The ‘WeDo’ West Downtown Minneapolis Cultural District Offers Passersby the Opportunity to Stop, Look and Listen

When I visit a city, for business or pleasure, I like to walk.  I like to look at architecture, public art, gardens, parks, shops.  When you walk, you notice things that you miss driving a car, or even as a passenger in a taxi or a bus, such as the decorative carving on an old building, the tiny figurine shop nestled between a bakery and stationery store, the statue of a local judge who was important to the community.  When you walk, you can get an ice cream from a street vendor or a cup of coffee at a walk-up window.  You can step into a café that has an interesting menu or drop into a pub that has live music.  You can sit on a bench to people-watch and pet all of the dogs that go by.

While multiple visits to a city allow you to branch out into lesser known neighborhoods, every city should have at least one district for the first-time visitor as well as the repeaters.  These are areas where you can spend a couple of hours between meetings or spend an entire weekend.  A place that, without having to plan ahead, will surely have something to interest you.  A place within walking distance of your hotel, or a one-stop destination to park and explore on foot.

Truth or Consequences?

I have always been interested in politics.  From the time in junior high school when I had to play the part of George Wallace in a mock debate, I have tried hard to listen to all views.  My parents, debate coaches, law review editors and mock trial partners taught me to think critically and challenge facts.

This is an interesting process in most campaigns, but it has been positively painful with the current flock of presidential candidates – many of whom seem to have only a passing acquaintance with the concept of accuracy. Despite modern recording practices and nearly instantaneous fact-checking capabilities in this electronic age, candidates are rarely being challenged, and within 24 hours are either denying that they made the statement or doubling down by repeating the misleading or false statements.  Being “caught” by fact-checking programs run by organizations such as The Washington Post, the Tampa Bay Time  and Annenberg Public Policy Center doesn’t seem to mean much.

For Artists, Political Use of Pop Tunes Going Over “Like A Rock”

Is anyone else dumbfounded by the fact that we still have political candidates getting called out for the unauthorized use of music in their campaigns?  

In my adulthood, we’ve seen the issue come up again and again with presidential candidates, including  Newt Gingrich (Survivor – “Eye of the Tiger”), John McCain (Jackson Browne – “Running on Empty”) and again with Sarah Palin (Heart – “Barracuda”), George W. Bush (John Mellencamp – “R.O.C.K. in the USA” and Tom Petty – “I Won’t Back Down”), Michele Bachmann (Tom Petty – “American Girl”), Mitt Romney (K’Naan – “Wavin’ Flag”) and Barack Obama (Sam Moore/Sam and Dave – “Hold On, I’m Comin’”).

And now we have Donald Trump using Neil Young’s “Rockin’ in the Free World”  when he announced that he was running for president,  R.E.M.’s “It’s the End of the World as We Know It (And I Feel Fine)” at a Tea Party rally in front of the U.S. Capitol, and Aerosmith’s “Dream On” at recent campaign events.

It is hard to imagine that these campaigns continue to ignore the obvious legal nits.

Use of a recording as theme music for a walk-on at a campaign event is permissible if the venue has a license from the applicable performing rights organization, ASCAP, BMI or SESAC.  While most public venues (hotels, arenas, theaters, etc.) have blanket licenses with these organizations, such licenses may exclude music used for political conventions or campaign events.  Businesses, parks or local Moose lodges likely do not have such licenses.  If the venue does not have the requisite license, the campaign must have one.  If a candidate wants to use a song for a campaign advertisement, website or even a YouTube clip, he or she will likely need to negotiate a synchronization or digital performance license with the song writer or publisher and/or the artist or record label.   

Failure to have the appropriate license is embarrassing – or should be – but is not really at the heart of these disputes.  After all, such violations are easily resolved with the payment of the required license fees or royalties, and maybe some punitive amounts for copyright infringement.

What is really at issue is whether or not the artist wants to be associated with the candidate using the music.  Some artists have claimed trademark infringement (K’Naan’s claim against the Romney campaign was that use of his music hurt his brand), or, as suggested by ASCAP,  they’ve argued that unauthorized use violates their right of publicity or constitutes false advertising by implying a false endorsement.   

None of these are particularly strong legal claims, but if a candidate is not worried about being accused of breaking the law, they might at least consider the potential negative publicity.

For example, when McCain/Palin ignored Heart’s request to stop using their song “Barracuda” and it was used to introduce Palin at the Republican National Convention, two key band members, the Wilson sisters, publicly declared that they did not want their music used to promote Palin’s image because her views and values were not representative of American women. 

Another example: Earlier this year, Scott Walker, Wisconsin’s Republican presidential wannabe, used music by the Dropkick Murphys for his entrance at the Iowa Freedom Summit.  It was DM’s rendition of a Woody Guthrie song “I’m Shipping Up to Boston”.  In response, the group tweeted “@GovWalker please stop using our music in any way…we literally hate you!!!  Love, Dropkick Murphys.”

As for Donald Trump, he may be going for a record in the number of artists annoyed during a single campaign, but it’s unlikely to give him much pause.  In response to his use of Neil Young’s music, Young’s manager announced that Young is a supporter of Bernie Sanders (but, as a Canadian, Young won’t be voting).  Trump’s switch to R.E.M. didn’t get him very far.  Michael Stipe of R.E.M. responded with an obscene recommendation, followed by “you sad, attention-grabbing, power-hungry little man.  Do not use our music or my voice for your moronic charade of a campaign.”  (Isn’t Stipe just talking in a language Trump can understand and appreciate?)  And now Steven Tyler of Aerosmith has sent a letter to the Trump campaign requesting that they not use his music, and has taken advantage of the situation to publicly call for copyright law reform to better protect musicians. Trump has now found a “better” song to replace “Dream On” for his events.    

It isn’t clear whether Young, R.E.M. or Tyler will sue, but you can bet that, if the tables were turned, Trump would.

Chautauqua Institution and Continual Renewal

My friend has a home on Lake Chautauqua, only a few miles from the famous Chautauqua Institution – a not-for-profit community “dedicated to the exploration of the best in human values and the enrichment of life through a program that explores the important religious, social and political issues of our times; stimulates provocative, thoughtful involvement of individuals and families in creative response to such issues; and promotes excellence and creativity in the appreciation, performance and teaching of the arts.” 

Founded in 1874 as an educational vacation experience for Sunday school teachers, it quickly expanded to offer learning opportunities and programs for all ages in music, the arts, religion and recreation. Each summer, it hosts dozens of lecturers on public issues, international relations, literature and science (known as a “season”), in addition to its regular fare of courses and performances.

On the eve of the last day of the 2015 Chautauqua season, it was announced that the Chautauqua Institution was going to seek bids for the “renewal” of its amphitheater – the prime assembly forum of the Chautauqua Institution for 140 years. After studying the matter for five years, it was determined that major reconstruction of this historic gem would best honor the “history of place and purpose” of the Chautauqua Institution. 

I happened to be staying with my friend when the announcement was made, and I read the article in the local newspaper with dismay. The rationale – structural concerns, poor sightlines, seating discomfort, and inadequate backstage facilities, stage and orchestra pit configuration – seemed poor reasons for not preserving this historically significant structure in its “natural” state.

As luck would have it, my friend’s brother-in-law is an accomplished pianist and organist who has had the honor of playing the amphitheater’s Massey Memorial Organ (5,640 pipes) on several occasions. He not only knows the amphitheater, but the Institution grounds, history and programs. On the day after the close of the current season, we visited the Institution, and as I observed the charming homes and other buildings in the village, it was clear that this was a community that was continuously evolving. Homes built in the late 1800s were constructed on platforms originally used for tents in the earliest days of the Institution. Structures were added in the early part of this century to accommodate expanded programs for opera, theater and youth-oriented recreation, and have continued to be added for dance and other arts, as well as for the expanding religious denominations participating in the Institution’s religion programs. Renovation of older buildings, including the amphitheater, has been constant.  

When we finally stopped at the amphitheater, I felt a sense of loss for what may come. But I also saw the limited stage and orchestra space, the steeply inclined ramps going into the bowl of the theater (no steps and no hand rails) and the bleachers placed around the upper rim, outside the cover of the roof, in order to accommodate the ever-increasing audiences. Backstage dressing rooms and rehearsal spaces were cramped.  

As I sat – uncomfortably – in one of the wooden pews that constitute the sole seating option in the amphitheater, I gained a grudging respect for the Institution leaders and their understanding of and commitment to purpose. As with any organization, it sometimes takes leadership willing to make difficult (and sometimes unpopular) decisions in order to continue to grow and remain relevant. Failure to evolve usually is the beginning of the end for any business. If the Institution’s programs constantly evolve to remain relevant, shouldn’t the infrastructure also adjust to accommodate the changing program needs? I just hope they don’t put electronic charging stations at every seat.