COMING SOON – ADVENTURES OF A JAZZ AGE LAWYER

I am very excited to announce that my new book, Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culturewill be published by the University of California Press on January 15, 2020.

COVER JPGAdventures of a Jazz Age Lawyer is a lively narrative exploring the coming-of-age of institutions, archetypes, and attitudes that define American popular culture. The story unfolds through the career of legal giant Nathan Burkan, whose clients included Charlie Chaplin, Al Jolson, Frank Costello, Victor Herbert, Mae West, Gloria Morgan Vanderbilt, Arnold Rothstein, and Samuel Goldwyn. Burkan was one of the principal draftsmen of the epochal Copyright Act of 1909 and the founder and guiding spirit behind ASCAP—the American Society of Composers, Authors, and Publishers.

The book tells stories of dramatic and often uproarious courtroom confrontations, scandalous escapades of the rich and famous, and momentous clashes of powerful political, economic, and cultural forces from which the United States emerged as the world’s leading exporter of creative energy.

Available for preorder now on Amazon and through IndieBound.

Adventures of a Jazz-Age Lawyer rescues a key figure in early 20th-century popular culture from (relative) obscurity, and tells his fascinating story with insight and style. I don’t know of anyone who writes more knowledgeably, penetratingly and elegantly about popular music than Gary Rosen.” —Ben Yagoda, author of About Town: The New Yorker and the World It Made and The B Side: The Death of Tin Pan Alley and the Rebirth of the Great American Song,

“Gary Rosen is a born storyteller, and this is both a first-rate story and a previously untold one.”—Peter Jaszi, coauthor of Reclaiming Fair Use: How to Put Balance Back in Copyright

“The book reads like a literary novel with engaging characters and an intriguing plot. Rosen gives a clear and moving picture of Nathan Burkan’s character, both his flaws and virtues. In the course of tracing Burkan’s career, Rosen provides fascinating historical background that includes such colorful characters as Victor Herbert, Charlie Chaplin, and Gloria Vanderbilt.”—Philip Furia, author of The Poets of Tin Pan Alley

“While Nathan Burkan is a lawyer you’ve probably never heard of, his courtroom battles on behalf of popular entertainers like Charlie Chaplin and Mae West were often filled with salacious tales of the rich and famous, and the trials involving gangsters like Frank Costello and Arnold Rothstein are an enduring part of American social history. This book is a great read!”—Howard Suber, coauthor of Creativity and Copyright: Legal Essentials for Screenwriters and Creative Artists

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LITTLE GLORIA

At the moment of her death last week, it could fairly be said that Gloria Vanderbilt, at the age of 95, had been a celebrity longer than anyone on earth. My forthcoming book, Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture, recounts the remarkable events, including the custody battle of the century, that first made Gloria Vanderbilt famous.

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COPYRIGHT THEORY IN ACTION – VICTORY IN EUROPE EDITION

Sherman tanks of 5th Guards Armoured Brigade pass an American jeep in Antoing, Belgium, 3 September 1944. BU 392 Part of WAR OFFICE SECOND WORLD WAR OFFICIAL COLLECTION No 5 Army Film & Photographic Unit Laing (Sgt)

This year marked the 70th anniversary of the end of World War II. The commemorations seemed rather muted to me, perhaps because of the inevitable demographic decline of the greatest generation, or perhaps because platinum just doesn’t have the same cachet as silver, gold or diamond. But for copyright mavens 70 years is an especially meaningful number because many copyrights “subsist” for the life of the author plus 70 years. (This is generally the case in Europe, but only for copyrights on works created since 1978 in the United States.) As allied troops were liberating Europe in the spring of 1945, two notable European authors died–Anne Frank of typhus in the Bergen-Belsen concentration camp, and Adolf Hitler by suicide in his Berlin bunker. With the European copyrights on Anne Frank’s diary and Hitler’s Mein Kampf set to expire on December 31, we are once again seeing copyright theory in action.

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LET’S NOT GO CRAZY

babyThe cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background. Universal Music, Prince’s publisher, notified YouTube that it had a “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law” (magic language required by the DMCA) and demanded that the video be removed.  (Fisher-Price, apparently, had no objection to the product placement.)

Ms. Lenz did not take the matter lying down. Although the DMCA takedown provision is designed to protect  third-party internet content services like YouTube from liability for hosting infringing content, it also gives the users of the service who post material subject to a takedown notice certain rights, including the right to demand reinstatement and a cause of action for damages against the copyright owner for “knowingly materially misrepresenting . . . that material or activity is infringing.” Ms. Lenz demanded that the video be “put back” and sued Universal for damages on the ground that it had not, before demanding takedown, considered whether the video was protected under the doctrine of fair use.

Last week, in Lenz v. Universal Music, the Ninth Circuit handed Lenz an important—albeit provisional—victory, holding that a copyright owner is indeed required under the “good faith belief” standard to consider fair use before making a takedown demand.

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HAPPY BIRTHDAY TO GO FREE?

A little over two years ago we noted the filing of Good Morning to You Productions v. Warner/Chappell Music, a class action law suit which seeks a declaratory judgment that Warner’s putative copyright on the ubiquitous ditty “Happy Birthday to You” is invalid, along with the refund of millions of dollars in licensing fees collected by Warner over the past several years. Now, on the very week when we learned that convicted spy Jonathan Pollard will be set free after serving 30 years of a life sentence, there are developments in the “Happy Birthday to You” case that may lead to its release into the public domain long before the expiration of Warner’s copyright in 2030.

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CEASE AND DESIST LETTERS FROM BEYOND THE GRAVE – CONAN DOYLE REDUX ED.

holmes

When  last we checked in on Sir Arthur Conan Doyle’s posthumous intellectual property enforcement activities (“Conan Doyle Estate  Down for the Count“), his estate’s attempt to enjoin publication of a collection of original Sherlock Holmes stories, A Study in Sherlock, was rejected in an opinion written by Seventh Circuit Judge Richard Posner. In that case Doyle’s literary heirs argued that although only the final 10 Sherlock Holmes stories (first published after 1922) remain under copyright, while the remainder of the canon is in the public domain, any secondary work using characters and story elements that were not fully “rounded out” until those final installments–most notably Holmes and Dr. Watson–infringed the still-extant copyrights.

Judge Posner, however, ruled that the copyrights on the final 10 stories protected only those literary elements that were “original” to those stories, for example, Holmes’s late-life change of attitude toward dogs. Using the road map Judge Posner provided, the Conan Doyle Estate has now filed a complaint against Miramax Films seeking to enjoin release of its forthcoming film, Mr. Holmes, which allegedly uses story elements that were first introduced in the Conan Doyle stories that remain under copyright.

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JE SUIS CINDY?

Actress Cindy Lee Garcia unknowingly played a role in the allegedly blasphemous InnoceCindy-Lee-Garcia_Innocence-of-Muslimsnce of Muslims trailer that appeared on You Tube in the Summer of 2012, sparking violent unrest in parts of the Islamic world. A five-second, two-line performance that Garcia gave for a film entitled Desert Warrior (“Is George crazy? Our daughter is but a child?”) found its way into the Innocence of Muslims trailer with a different question over-dubbed by another actress: “Is your Mohammed a child molester?” A fatwa issued against everyone involved in the trailer, and Garcia received numerous death threats.

Garcia sued to have You Tube take down the trailer. For reasons that are unclear to me, out of the many legal theories that may have been available to them, Garcia’s lawyers chose to proceed on the grounds that You Tube was infringing a copyright that their client held in her Desert Warrior cameo. Under Section 102(a) of the Copyright Act, a copyright “subsists in original works of authorship fixed in any tangible medium of expression.”  Does Garcia’s five-second filmed performance meet this standard? Today the federal Court of Appeals for the Ninth Circuit ruled that it does not.  More about the spirited debate between the majority and the dissent after the jump.

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BLURRED LINES IN MORE WAYS THAN ONE

The jury has spoken in the Robin Thicke “Blurred Lines” copyright infringement case, finding that the song infringes the copyright on Marvin Gaye’s 1977 “Got to Give it Up” and awarding the Gaye estate  over 7 million dollars in damages. The case has been framed by music industry talking heads and the press as one which deals with the line between “plagiarism” and “homage.” It is true that this case, like most intellectual property cases that go to trial, is about blurry lines and whether they have been crossed, but neither “plagiarism” nor “homage” is a concept that has any legal significance.

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CEASE & DESIST LETTERS FROM BEYOND THE GRAVE – OLD BLOOD & GUTS EDITION

bgtankHere is a marketing conundrum. How do you brand a $575,000 specialty vehicle, built on a Ford truck chassis, that is designed to look like a tank? If you answered “Name it after General George S. Patton” give yourself a 21-gun salute. But here’s the rub—in one of the most astute tactical moves of his storied military career, Patton died in the State in the California which, as we have seen before, is especially solicitous of the eternal publicity rights of anyone who ever died on its soil. In a lawsuit filed the federal court in Los Angeles, the heirs and assigns of “Old Blood & Guts” have brought this heavy artillery to bear on U.S. Specialty Vehicles.

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A BFD INDEED: FLO & EDDIE HIT PAYDIRT

floLast year the corporate alter ego of former Turtles frontmen Howard Kaylan and Mark Volman—Flo & Eddie, Inc.—filed a class action lawsuit against Sirius XM. Their claim is that pre-1972 sound recordings, such as the Turtles’s classics “Happy Together” and “Eleanore,” which have no federal copyright protection, are nonetheless protected against unauthorized use under California state law. In a post that included our attempt to summarize the byzantine labyrinth that is music copyright law, we noted the “ambitiousness” of the claim and predicted that the case could have “broad ramifications.” If a decision handed down in the their case this week (and see 11/17/14 update below the fold) holds up on appeal, that post will merit a spot in the pantheon of gross understatement.

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