By: Aaron Steinberg, Editor-In-Chief

 

On-demand streaming, is primarily licensed and paid for by the streaming services, such as Spotify and Apple Music. This framework makes on-demand streaming unique since consumers are not paying directly for the licensed works. These on-demand, or “interactive,” streams pay fractions of a penny per stream to the songwriters and music publishers for two different royalties: public performance royalties and mechanical royalties. The combination of the public performance and mechanical royalties are referred to as the “all-in” royalty.

 

The U.S. Copyright Royalty Board (CRB) meets every five years to set both the required mechanical and public performance royalty rate. This rate set by the CRB is referred to as the “statutory rate.” Furthermore, the CRB established the method in which Spotify must allocate revenues earned by Spotify to pay publishers and songwriters.

 

In 2018, the CRB increased the percentage of United States revenue that on-demand digital service providers (DSPs) are required to pay to songwriters and publishers. The royalty rate went from 10.5% to 15.1%. Despite this ruling, the legal battle continued as Spotify, Google, Amazon, and Pandora filed an appeal, disputing the raised rate. However, as of August 2022, the DSPs, National Music Publishers’ Association (NMPA), and National Songwriter’s Association International (NSAI) jointly proposed new mechanical streaming rates for 2023-2027, where the top royalty rate will increase to 15.35%.

When the rate increase reaches 15.35%, Spotify will be required to pay songwriters the higher of either: (1) 15.35% of Spotify’s gross monthly revenue; or (2) 26.2% (or an updated percentage based on CRB ruling) of the sound recording royalties generated from all the record labels that had sound recordings stream that month. Based on this calculation, Spotify then splits the funds between mechanical and performance royalties and accounts the funds to songwriters and Performance Rights Organizations (PROs). The funds are distributed in accordance with the number of times each specific recording has been streamed compared to the total number of streams on the platform that month. This is called the “pro-rata” model.

 

Now, we must wait and see whether the CRB accepts or rejects this mutual proposal from the DSPs, NSAI and the NMPA to raise the top royalty rate to 15.35%.

 

Works Cited:

//www.royaltyexchange.com/blog/mechanical-royalties

https://vi.be/files/research/the-definitive-guide-to-spotify-royalties-by-jeff-price-3.pdf

By: Gavin Dwyer, Senior Editor  

 

Myles Brennan created waves throughout the collegiate football world when he announced his retirement on August 15, 2022. However, the waves were not related to his on-field performance, nor how his retirement would affect the LSU Tiger’s season. Instead, the media focused the spotlight on the name, image, and likeness (NIL) deals he signed while part of the LSU football program. NIL deals allow individuals to profit from their likeness through sponsorships, paid advertising, or other licensing deals. 

 

Brennan signed NIL deals with a variety of companies such as Raising Canes, Smoothie King, GameCoin, Smalls Sliders, and Hollingsford Richards Ford.  

 

 Members of the media, such as Darren Rovell of the ACTION NETWORK, pontificated how Brennan’s early retirement may slow NIL deals across the college football landscape. Rovell pontificates that “Brennan would have still been able to keep the money if, five days after he signed all the deals, he left LSU.” 

 

However, this is not necessarily true. Rovell is correct in saying the NIL deals cannot be predicated around Brennan playing for LSU or any performance incentive bonuses. However, just because Brennan signed these deals does not mean he automatically gets all his NIL money he contracted for.  

 

Like any other contract,  payment is not required if performance is not completed.  Therefore, Brennan keeps the money from any NIL deals where he completed his contractual obligations. However, if Brennan signed NIL deals based upon future endorsements that he did not fulfill, he would not see that money.  

 

Additionally, Louisiana and LSU provide protections to those contracting for the use of collegiate athletes’ NIL rights. Both Louisiana law and LSU NIL policy state contracts for collegiate athletes’ NIL rights shall not extend beyond their participation in an athletic program. Therefore, after Brennan left the program he relinquished all future compensation he could earn under his current NIL deals.  

 

Without being privy to Brennan’s contracts and the language contained within each of them, it is impossible to say what money he will keep and what money he will never see. In any event, the retirement of Brennan is unlikely to affect the growth NIL deals at any substantial rate like Rovell claims.  

 

According to On3, Brennan had an NIL valuation of $327,000, ranking 112th among all collegiate football players. This is a drop in the bucket when you look across the NCAA and see that players like Jaden Rashada allegedly signed an NIL deal worth $9.5 million. Until a major deal like that is affected by retirement, there will be no measurable impact on NIL deals in college athletics. 

 

Since NCAA v. Alston, NIL deals have allowed collegiate athletes to profit from their own NIL rights. They finally get a sliver of the billion dollar enterprise they devote years of their lives to. Brennan’s retirement will not slow the growth and expansion of this new arena. Attorneys will likely carefully draft these agreements in such a way where all the compensation is not due up front if the contract is likely to extend for multiple seasons or endorsements. 

 

Brennan’s situation should not be viewed as a cautionary tale to entities contracting to use collegiate athletes NIL rights. Instead it should be viewed as a success of Alston, finally allowing athletes who will never get a paycheck professionally to profit off of their dedication and participation in a billion dollar arena. 

 

Works Cited: 

 

https://www.sportsbusinessjournal.com/Daily/Issues/2022/08/16/Marketing-and-Sponsorship/Myles-Brennan-NIL.aspx#:~:text=Brennan%20signed%20a%20car%20deal,money%2C%20which%20he%20did%2C%22  

https://afrotech.com/jaden-rashada-said-to-have-inked-largest-nil-deal-in-history-at-9-5m  

https://www.on3.com/college/lsu-tigers/news/darren-rovell-details-how-myles-brennan-retirement-will-affect-his-nil-deals-lsu-tigers/   

https://www.actionnetwork.com/ncaaf/lsu-qb-myles-brennans-retirement-could-slow-speed-breadth-of-nil-deals-across-college-football 

Sen. Bill. SB60, 2021 Reg. Sess. (La. 2021). https://legiscan.com/LA/text/SB60/2021  

https://www.lsu.edu/bos/docs/policies/policy_name-imagelikeness-2021-june.pdf  

By: Katie Hinkle, 3L Member and Managing Editor

In early Summer 2022, The Ohio State University made headlines that were much different from many other newsworthy events. OSU filed a patent for the word “The” and the United States Patent and Trademark Office finally accepted it after a failed previous attempt. 

Generally, a trademark in the United States means “any word, name, symbol, or device, or any combination thereof used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter [the Lanham Act] to identify and distinguish the individual’s goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”  

There are four categories of trademarks: 1) generic 2) descriptive 3) suggestive and 4) arbitrary or fanciful. Generic marks belong in the weakest category, therefore never deserving of a trademark registration. Arbitrary or fanciful marks belong in the strongest category and deserving of registration. 

So, how did Ohio State receive a trademark for this seemingly “unfanciful” mark? 

Three years ago, the institution applied for a trademark for “The”. If you are familiar with Ohio State University, you know the use of this word runs deep within the rich traditions of the school. These traditions run deep enough to where many retailers sell t-shirts, posters, home décor, stickers and other pieces of apparel embellished with “The” in scarlet and gray, along with buckeye leaves, footballs, football helmets, and other symbolic ties to the school’s illustrious sports history. 

This decision by the United States Patent and Trademark Office to grant OSU the trademark leaves a sour taste in the mouths of many, particularly because many view the use of “The” in the name of the institution as pretentious. However, trademark scholars point to a common layperson misconception reminiscent with this same situation. The layperson may believe once a mark, phrase, or word is trademarked, no one else can use that mark at all, no matter the context. However, trademark protection is highly contextual, therefore just because an individual registers something that does not meanwhatever they registered cannot ever be used again.  

Case law explains why allowing registration for “The” is valid. When “The” is used in connection with the institution’s colors and sports teams, the mark has gained secondary meaning. This secondary meaning identifies the source of the goods with the mark “The” with The Ohio State University. The strength of this mark comes from the “intrinsic quality” of the mark , or its public history due to The Ohio State University’s use of “The.” In other words, the traditions carried on by the institution have contributed to the strength of this trademark. 

In the end, the registration of such a seemingly nonsensical mark is a great lesson on the validity of marks and exactly what misconceptions trademark law sparks among the public. 

Works Cited:

1 Gilson on Trademarks § 2.02 Generic Names 

15 U.S.C.S. § 1127 

15 U.S.C.S. § 1052(f) 

Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). 

McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir. 1979). 

National Law Review, “THE” Trademark of the Year? Ohio State University Trademarks THE, (June 28, 2022). https://www.natlawreview.com/article/trademark-year-ohio-state-university-trademarks#:~:text=Ohio%20State%20University%20Trademarks%20THE,at%20sporting%20events%20for%20decades.  

By Noah Zedeck, 2L member

Rapper Travis Scott is making headlines for all the wrong reasons. In November 2021, a massive “crowd surge” left 10 people dead at Scott’s Astroworld Music Festival. Additional injuries were reported, including 11 cases of cardiac arrest, and 23 people were hospitalized. Questions are now mounting regarding who is responsible for this event and how it occurred. Potential plaintiffs are looking for who is liable.

Numerous lawsuits have been filed in relation to the event, but it is still largely unclear who is truly liable as a number of individuals and entities could be to blame. The event itself was held at NRG Park in Houston but it was organized by a number of entities, including Live Nation. The most notable organizer of the event who could face liability is Scott himself.

Scott’s unique position as not only a performer, but also an organizer and supervisor of the Astroworld event, places him in relatively uncharted territory compared to other artists who have faced potential liability for concert deaths. For example, neither Pearl Jam nor The Who were sued when people were trampled to death at their concerts. This was due in part to those bands merely performing at the venues where those deaths occurred rather than organizing and supervising the entire events themselves.

The case against Scott is further substantiated by his history of provoking large crowds, at times by explicitly encouraging attendees to storm the stage. Some lawsuits have even named fellow rapper Drake as a defendant after he appeared onstage with Scott and allegedly contributed to inciting the crowd.

While it is not so uncommon for large events hosting thousands of people to get out of hand and sometimes lead to injuries or deaths of attendees, it has been extremely uncommon for performers at those events to be held liable for such tragic occurrences. Astroworld is perhaps a different kind of event, and Scott a different kind of performer, than has ever been the subject of this type of litigation.

Other performers will no doubt be keeping a close eye on these cases to see if courts will opt to hold Scott even partially liable for the Astroworld tragedy, thus potentially exposing them to future liability as well.

Works cited:

https://www.cnn.com/2021/11/12/us/travis-scott-concert-houston-friday/index.html

https://www.cnbc.com/2021/12/22/house-committee-launches-probe-into-deadly-travis-scott-astroworld-festival.html

https://time.com/6115460/astroworld-tragedy-legal-responsibility/

By Kristen Johnson, Content Editor

A jury on Feb. 15 found the New York Times Company not liable for defaming Sarah Palin. This verdict was returned years after Palin first filed a complaint against The New York Times in 2017.

Reporter James Bennett had published an editorial connecting Palin’s political platform on gun rights to the 2011 mass shooting in Tucson, Arizona that seriously injured then US-Congresswoman Gabby Giffords. Palin argued the paper knew there was no connection between her political action committee and the mass shooting.

However, after an evidentiary hearing, U.S. District Court Judge Jed Rakoff dismissed Palin’s Complaint in 2017, finding Palin had failed to prove actual malice. Judge Rakoff stated, “[I]f political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously.”

In 2019, the U.S. Court of Appeals for the Second Circuit overturned the dismissal on procedural grounds, finding that Judge Rakoff was required to accept pled facts as true because he had not converted the NYT’s motion to dismiss into a motion for summary judgment. On remand, Judge Rakoff dismissed the case again on Rule 50 grounds, finding Palin failed to establish the requisite malice at trial.

This actual malice standard was created in another case involving The New York Times. In 1964, the Supreme Court created the actual malice standard for public officials in New York Times Co. v. Sullivan. In this case, an elected commissioner of the city of Montgomery, Alabama, sued the New York Times for libel, arguing the publication inaccurately depicted his actions to control protestors and the arrest record of Dr. Martin Luther King, Jr., among other things.

The court held that public officials may not recover damages for defamatory falsehoods relating to their official conduct unless they prove with convincing clarity that the statements were made with actual malice. The actual malice standard is considered publication with knowledge of the falsity or reckless disregard for whether it was false or not. The reasoning for this standard is that “[i]t is a prized American privilege to speak one’s mind, although not with perfect good taste, on all public institutions.” (Citing Bridges v. California (1940)).

Thus, since 1964, actual malice has been a requirement for public officials seeking to prove a defamation claim. As such, Palin’s case was dismissed because the reporter’s conduct was shown to be an “honest mistake.”

In July, U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch wrote in separate dissenting opinions in Berisha v. Lawson that the actual malice standard needs to be reviewed; now, it appears Palin v. NYT will not be the case the Supreme Court uses to revisit current libel law.

Works Cited:

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Bridges v. California, 314 U.S. 252, 270 (1940).

https://www.hollywoodreporter.com/business/business-news/sarah-palin-new-york-times-legal-1235094885/

https://www.hollywoodreporter.com/business/business-news/new-york-times-beats-sarah-palin-defamation-lawsuit-1033683/

https://www.hollywoodreporter.com/business/business-news/sarah-palin-defamation-lawsuit-ny-times-revived-by-appeals-court-1229572/

By Elizabeth Tirrill, 2L member

The Russian invasion of Ukraine began Feb. 24 for purposes of “de-Nazifying” Ukraine, according to Russian President Vladimir Putin. Putin claimed the war is not actually a war at all, but simply a “special military operation.”

Regardless of terminology, Russia’s actions are leading to detrimental consequences to the people of Ukraine and to Russia’s economy. One such consequence is the amount of sanctions issued against Russia by western nations and international authorities.

It is reported Russia’s assets have been frozen in its central bank to prevent the state from reaching its approximately $63 billion of foreign currency reserves. Additionally, the sanctions on Russia cover multiple industries, including military goods, luxury fashion goods, international departing flights, and oil and gas. Some international businesses have also seized operations in Russia since the invasion.

The Russian government in early March took an unexpected course of action in response to the international sanctions and condemnation of Russia’s actions. Putin issued a decree that “effectively legalize(s) patent theft from anyone affiliated with countries ‘unfriendly’ to it, declaring that unauthorized use will not be compensated,” the Washington Post reported.

“This means that Russian businesses can use intellectual property, such as patented inventions or fashion designs, without having to pay or seek the consent of the rights holders,” The Fashion Law reported.

Under this decree, patent holders outside of Russia will have no recourse if a Russian entity or individual infringes on the patent. “Russia’s decree removes protections for patent holders who are registered in hostile countries, do business in them or hold their nationality,” according to the Washington Post.

While the decree only specifically mentions patents, it is apparent that it applies to trademarks as well. Professionals in the field agree that right now, intellectual property rights holders have no immediate relief available for stolen intellectual property in Russia. “Just how much IP is in jeopardy is unclear,” Yahoo Finance reported.

Normally, international intellectual property disputes could be resolved by the World Trade Organization (WTO). However, that route for relief requires the federal government of the affected rights holder to bring a claim in front of the WTO.

Commenters believe that this is unlikely to happen as nations such as the United States are probably not very concerned for intellectual property rights at the moment with the current state of the world. Additionally, if Russia is expelled from the WTO because of the war on Ukraine or otherwise, the organization would no longer have jurisdiction over Russia’s actions.

While a war on intellectual property is unexpected, the strategy is not completely unprecedented.

An action like this has not been taken since World War I and the Trading With the Enemy Act when the now-famous Aspirin patent was seized by the United States and then later shared with France, Russia, and the United Kingdom after the Treaty of Versailles. However, unlike the Trading With the Enemy Act, Russia’s decree threatens intellectual property on a much larger scale.

The effects of Russia’s decree are already apparent, especially on trademarks. Trademark applications have already been filed in the past week for close resemblances to IKEA, Instagram, Starbucks, and McDonald’s in Russia. Additionally, trademark applications have also been filed for marks resembling if not totally copying Nike, Puma, Chanel, and Christian Dior.

A Russian court has already ruled in favor of an alleged Russian infringer because of the decree. The judge dismissed a copyright and trademark infringement claim brought by the creators of British children’s television show Peppa Pig. The judge cited on the record that the unfriendly actions of the United States and other foreign nations toward Russia gave influence to his decision.

Intellectual property rights holders are at risk for theft in Russia, and under this decree, those rights holders have no possibility for redress in the near future. It is unclear how this issue will unfold in the coming weeks and months.

Works Cited:

https://www.bbc.com/news/world-europe-56720589

https://www.bbc.com/news/world-europe-60125659

https://www.washingtonpost.com/business/2022/03/09/russia-allows-patent-theft/

https://finance.yahoo.com/news/mc-donalds-starbucks-and-others-have-no-recourse-for-stolen-ip-in-russia-174530523.html?guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaanz6w6yerxhrwmhtj-i8jov01p3upbmk8hiysw1yu0cwyrqf6yn8kqzig4_-umixkhetuy2xnasrgebizy8gbzjob3baqdywiu7t_ohabzfvmdhqq87gk2ahxi6kowr5h12wfeubmaratpxizmg3r0meiq4yn8xxhr_onxy-x3vc

https://www.thefashionlaw.com/how-russia-is-using-intellectual-property-as-a-war-tactic/

https://www.thefashionlaw.com/chanel-dior-among-brands-targeted-in-russia-trademark-filings/

By Katherine Hinkle, 2L Member

“Does anyone even buy CDs anymore?” is a comment I’m sure is overheard by many in bookstores, department stores or any retailer that carries the works of many artists we all love. The answer to that can be complicated, or you could just say “Streaming is where it’s at.”

Streaming giants such as Spotify and Apple Music have taken over the music scene within the last few years, so much so that it is hard to find individuals who do not have a streaming subscription from either platform.

This presents a different outlet for artists to share their works than what was available to them before the rise of streaming services. Streaming allows for a much more streamlined process for emerging artists to promote their music.

However, how much are artists actually making from their streams? Business Insider reported in February 2021 that Spotify streams are only worth about $.003 to $.005 per stream.

To calculate payout rates for artists, Spotify takes the money it makes overall from ads and subscriptions each month and pays that out in proportions to each artist on the platform. The proportional shares are based each artist’s share of total streams across the entire service for that particular month.

For example, an artist that has 10,000 streams out of a total of 1 million streams across the entire platform would receive one percent of Spotify’s overall revenue share. To put that into perspective, even the big-name artists of today would not make as much as many in the general public believe they do from their music alone.

This misconception of the entertainment industry leaves many artists asking “Where are my royalties?” or, “Why am I not getting paid?”

Unfortunately, aspiring artists and even emerging stars who have at least stuck their toes in the water are taken advantage of. Many sign extremely vague contracts or they have absolutely no understanding of the terms and conditions within their contracts.

An example of this situation is shown by the lawsuit rapper when Megan Thee Stallion filed against her label, 1501, for fraud, breach of contract, and negligent misrepresentation.

Artists are led to believe that they are guaranteed a running start to fame and stardom, but they may not even receive any of the money from their discography. Their streaming revenues could go straight back to their labels, manager or agent. Without legal representation, many artists do not understand this.

In Section 114 of Federal Copyright law, 45 percent of performance royalties are paid to the artists on the track being streamed, while five percent are paid to artists not featured on the track. Finally, the remaining 50 percent of the performance royalties are paid to the owner of the rights of the track.

Many artists have signed an agreement that subjects them to royalty deductions. Labels use the money gained from the mechanical royalties of each artist to pay for that artist’s upfront costs, such as production expenses.

Those artists sign deals without knowing they could never see the money gained from their streams. It’s a never-ending, hurtful cycle for artists. Some artists never see the fruit of their labor, simply because they have no idea how much their streams are really worth as that money is taken from them.

Overall, the glamor of the music industry casts a dangerous façade for emerging and aspiring talent. Streaming payouts are the harsh reality that go completely under the radar.

Works Cited:

Jon M. Garon, Entertainment Law and Practice 547 (3rd ed. 2020).

https://www.vice.com/en/article/y3gmjw/bad-deals-are-baked-into-the-way-the-music-industry-operates.

https://www.businessinsider.com/how-much-does-spotify-pay-per-stream.

https://www.reviews.com/entertainment/streaming/music-streaming-royalties/

By Melissa Bergmann, 2L member

Tattoos, once thought of as taboo, are now a generally accepted and popular form of expression and adorn the bodies of musicians, models, athletes, and movie stars. Likewise, video games, such as the NBA 2K series, that feature depictions of real athletes have also gained increasing popularity. These two trends lead to the question of who owns the copyright to a tattoo inked onto the skin of an athlete featured in a video game.

Tattoos are capable of copyright protection as copyrights protect original works of authorship (e.g., pictorial or graphic, such as an image in a tattoo) that are fixed in a tangible means of expression (e.g., inked on skin). This concept is supported by Whitmill v. Warner Bros. Entertainment Inc. (E.D. Mo., 2011). In this case, a tattoo artist attempted to stop the release of The Hangover: Part II because of alleged copyright infringement based on a tattoo he inked on Mike Tyson’s skin.

The presiding U.S. federal court stated, “Of course tattoos can be copyrighted… I don’t think there is any reasonable dispute about that.” The application of such copyrights to tattoos depicted on an athlete’s skin in video games complicate this concept.

The United States District Court for the Southern District of New York dealt with this issue in the novel case, Solid Oak Sketches, LL v. 2K Games, Inc. and Take-Two Interactive Software, Inc., (2020). The plaintiff alleged copyright infringement in relation to the reproduction of five tattoos that were depicted on NBA players Lebron James, Kenyon Martin, and Eric Bledsoe in the Defendant’s basketball video game in versions 2K14, 2K15, and 2K16.

The court granted summary judgment for the defendants on three different grounds.

First, the court found that the use of the tattoos in the video games was de minimis because the tattoos are rarely in the game, and when they are featured, they are so small and distorted that they are unrecognizable.

Second, the court found that the tattoo artists gave the players an implied license for unrestricted use of the tattoos as elements of the players’ likeness. Accordingly, the court held that Solid Oak could not license the tattoos because they are affixed to the player’s bodies and Solid Oak does not have the publicity rights to the players’ likenesses, which include the tattoos.

Finally, the court found that the tattoos featured in the game constituted fair use because the tattoos had previously been published and the designs are more factual than expressive.

Other courts have taken a more forgiving stance as to a tattoo artist’s copyright protections, such as the United States District Court of Southern Illinois in Alexander v. Take-Two Interactive Software, Inc., (2020). In this case, a tattoo artist alleged that Take-Two infringed her copyrights in a tattoo that she applied to WWE wrestler Randy Orton by depicting the tattoo on Orton’s character in Take-Two’s video game WWE 2K.

The court denied Take-Two’s motion for summary judgment, disagreeing with Take-Two’s defenses that the tattoo use was de minimis, authorized by an implied license, and constituted fair use. The court found triable issues of fact existed as to the existence and scope of the implied license and whether the artist and Orton discussed permissible forms of copying, distributing, and sublicensing the tattoo.

The legal implications of tattoo depiction in video games are still novel to most courts and riddled with underlying factors, such as the fame of the individual being tattooed and what court is governing the dispute. James himself in a Declaration of Support for Take-Two stated that his tattoos are part of his persona and identity, and the use of his image without his tattoos undermines his publicity rights and deprives him of his right to license his own body.

As a preemptive measure in the wake of such disputes, video game creators who depict celebrities should protect themselves by obtaining necessary rights from the tattoo artist through waiver, instead of relying on de minimis and fair use defenses.

Works Cited:

https://www.copyright.gov/help/faq/faq-general.html

https://www.jdsupra.com/legalnews/skin-in-the-game-a-second-take-on-86677/

https://www.thelawyerportal.com/blog/can-copyright-protect-tattoos-reproduced-in-video-games/

https://www.lawnow.org/copyright-no-plaything-celebrity-tattoos-in-video-games/

https://copyrightalliance.org/education/qa-headlines/tattoos-copyright/#:~:text=Yes%2C%20tattoos%20can%20be%20protected,physical%20object%20and%20display%20originality.

https://www.brandsprotectionnews.com/en/recreating-athlete-tattoos-in-video-games-doesnt-infringe-copyright/

By Brad Stephens, Managing Editor

More than 12 years after Texas Tech University fired Mike Leach as its head football coach, he is still fighting the school in court.

Leach sued Texas Tech in December, claiming the school violated the state’s open records laws, ESPN reported. The lawsuit came more than a decade after Leach’s firing in December 2009 for his alleged mistreatment of a concussed player. This suit is only the most recent in a string of legal battles between the coach and the university.

“I think all he really wants is for the truth to come out about what happened 12 years ago when he was terminated,” Julie Pettit, one of Leach’s lawyers, told ESPN of the latest suit.

Leach accepted the position as head coach at Texas Tech in 2000. His Red Raider program produced 10 consecutive winning records, and he was named the Big 12 Conference Coach of the Year in 2008.

However, the coach’s tenure at the school abruptly ended in 2009 when player Adam James accused Leach of locking him in an equipment shed after he suffered a concussion. James’ father Craig, an ESPN analyst at the time, approached Texas Tech about the incident, leading to a school investigation that resulted in Leach’s termination.

Texas Tech asserted that Leach was terminated for just cause, and the school maintained Leach was not owed any money for the remainder of his contract. In response, Leach sued for wrongful termination, maintaining that he was owed compensation.

In 2011, the Texas Court of Appeals ruled for Texas Tech and affirmed the dismissal of Leach’s suit. Leach v. Tex. Tech Univ. (Tex. App. 2011). The court held the university did not waive its sovereign immunity and could not be sued for monetary damages on Leach’s claims. The Texas Supreme Court denied Leach’s petition for review.

Around the same time, Leach separately sued Craig James, ESPN, and a public relations firm on claims of defamation, tortious interference with a contract, and civil conspiracy to tortiously interfere with a contract.

Once again in 2014, the Texas Court of Appeals decided against Leach, affirming summary judgment rulings for the defendants. Leach v. James (Tex. App. 2014).  The court concluded the coach’s termination resulted from Texas Tech’s own investigation into the Adam James incident and was not the result of outside pressure from Craig James or ESPN.

Despite multiple courtroom defeats, Leach has continued his fight against Texas Tech. Paxton v. Dolcefino Communs., LLC (Tex. App. Sep. 30, 2021). He hired an investigative firm to obtain documents pertaining to his termination, and the most recent lawsuit relates to those efforts.

After years of battling Texas Tech in court, Leach finally faced his old employer on the football field in December. The coach’s current program, Mississippi State University, played the Red Raiders on Dec. 28 in the Liberty Bowl.

Heading into the game, Leach’s long-running legal battle was a primary story because this was his first matchup against Texas Tech since his termination.

Leach reiterated his willingness to settle the feud for $2.4 million and “an acknowledgement that I didn’t do anything wrong,” ESPN reported.

“Some of the (Texas Tech) leadership, at least when I was there, was very sleazy and slimy and dirty,” Leach told the Mississippi Clarion Ledger. “I enjoy naming names on it too, which I might as well. They all know who they are. We should get this thing settled. They should pay me.”

Once the Liberty Bowl kicked off, Leach’s Mississippi State squad took a resounding 34-7 loss – yet another defeat for the coach at the hands of Texas Tech.

Works cited

https://www.espn.com/college-football/story/_/id/32947717/they-owe-mike-leach-ready-face-texas-tech-first-firing.

https://www.usatoday.com/story/sports/ncaaf/2021/12/27/mike-leach-plans-fight-texas-tech-forever-court-after-firing/9029054002/.

By Dani Bhadare-Valente, 2L member

The U.S. Constitution codified the principle that an author, innovator, or artist should enjoy the benefits of her intellectual property. Since the adoption of our Constitution, however, U.S. copyright law has been subject to many revisions, and the Walt Disney Company has been a major player in those transformations.

Congress passed its first Copyright Act in 1790. Under this act, an artist’s work could be protected for fourteen years with a renewal period of another fourteen years before the work moved to the public domain. In 1909, Congress passed its next Copyright Act (“1909 Act”). Artists could now protect their work for twenty-eight years with a renewal term of twenty-eight years, totaling fifty-six years of protection.

Disney introduced Mickey Mouse in 1928 with the release of Steamboat Willie. Pursuant to the 1909 Act, Steamboat Willie’s copyright protection was set to expire in 1984 and fall into the public domain. Once there, anyone could use the character without obtaining permission from, or paying, Disney.

With the 1984 expiration of Disney’s mascot soon approaching, it began intensely lobbying for Congress to reconsider and amend the 1909 Act. The company’s lobbying proved successful, because Congress passed the Copyright Act of 1976 (“1976 Act”) which transformed copyright law.

A piece of work was no longer protected by a term of years with a renewal period. Instead, the copyright extended to the life of the author plus fifty years. For corporations, the copyright protections lasted for seventy-five years from the year of creation. Mickey Mouse’s date of copyright expiration was now extended to 2003.

Again, Disney worked hard to lobby Congress for another copyright extension in the 1990s, and again, its efforts were rewarded. In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, more commonly known as the Mickey Mouse Protection Act.

The Mickey Mouse Protection Act extended works created on or after January 1, 1978, to the life of the author plus seventy years.  For corporations, copyright protections extend for ninety-five years from first publication or 120 years from creation, whichever was shorter.

With the Mickey Mouse Protection Act, today Disney’s mascot is dangerously close to being released into the public domain. Unless the company successfully lobbies another extension, Steamboat Willie is set to expire next year.

Based on its history, we should expect that Disney has been lobbying to keep ownership and protection over its beloved character, but it is unclear whether these efforts have been – or will be – successful. Unfortunately for Disney, the COVID-19 pandemic has affected the country, and Congress, beyond what anyone may have imagined.

Whether Disney will be able to pull the legislature’s focus away from the pandemic to protect its characters is still up in the air, but this time next year, the public may have a new friend added to the mix.

Works Cited:

U.S. Const. art. 1, § 8, cl. 8

https://www.copyright.gov/timeline/