Chubby Checker Files Trademark Case

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Evans v. Hewlett Packard Co., (S.D. Fl. filed Feb. 11, 2013).

Chubby Checker, famous for "The Twist", sued Hewlett Packard and Palm for, inter alia, trademark infringement in relation to a mobile app available on Palm devices called “The Chubby Checker.”  The app allows users to calculate the size of a man's penis based on his shoe size.

ASCAP Royalty For Mobile Devices Affirmed By 2d Cir.

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ASCAP v. MobiTV et al., Docket Nos. 10-3161-cv(L) (2d Cir. May 22, 2012).


This  appeal  concerns determination  of  the  proper  royalty  that ASCAP is  entitled to  receive  for  a  blanket  public performance license for music in the ASCAP repertory that is embodied in  television  and  radio  content  to  be  delivered  to  viewers  and listeners using mobile telephones.

When the parties could not agree on a price for the performance rights to the music component of Mobi’s offerings, ASCAP sought a reasonable rate in the District Court for the Southern District of New York, acting as a rate court pursuant to  a  consent  decree.  Following  a  bench  trial,  the  District  Court
(Denise  Cote,  District  Judge)  issued  a  judgment  on  July  7,  2010, establishing various royalty rates, depending on the nature of the programming, and designating the revenue bases to which those rates apply. See  In re Application  of MobiTV, Inc.,  712  F. Supp.  2d  206 (S.D.N.Y.  2010).  ASCAP  appealed,  contending  that  the District Court’s rate formulation should have been based on the retail
revenues  received  by  the  wireless  carriers  from  sales  to  their customers, rather than the content providers’ wholesale revenues paid by Mobi.  The Second Circuit disagreed with ASCAP and AFFIRMED.

Copyright Suit Over Ringtones

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WB Music Corp. v. Infospace, Inc., No. 09-cv-0682-ODW (C.D. Cal. complaint filed Jan. 28, 2009).

As alleged in the Complaint (paragraphs 14 and 17):

Defendants...are related companies that, collectively, are (or at all relevant times were) in the business of creating, selling, and distributing cell phone ringtones, including ringtones embodying Plaintiffs' copyrighted musical compositions. Defendants have represented themselves as agents of one another in their dealings with Plaintiffs...

Defendants have unlawfully, and without authority from Plaintiffs, reproduced, distributed, prepared, and sold cell phone ringtones embodying the Musical Compositions.

Music On Your Mobile

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Universal Music group entered into an agreement with Nokia Corp., the worlds largest mobile-phone maker by sales, to offer UNLIMITED music downloads for a year on phones carrying the "Ovi" platform, which allows users to buy music. (The core of the service is based on Nokia's prior acquisition of Loudeye for $60 mil.) Dubbed "Comes With Music", users -- who will get a 1 year free subscription and access to Universal's repertoire of artists -- can also transfer music to their computers, though making multiple copies in violation of Copyright protections is limited (DRM).

The service is sure to compete with Apple iTunes/iPhone, and is part of Nokia's continuing expansion into providing on-line services over its telephones.

The real question is whether mobile is truly the direction music is heading? Yes, the iPhone is cool - having your music and phone handy for on-the-go people is a seeming "must". But is it THE ANSWER? Or, just one path of many?

Working Class Hero

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Capitol Records (EMI) announced that a new John Lennon video album will be released, in collaboration with iTunes, at Starbucks locations around the US. But buyers beware, it is not the actual album/DVD that will be sold at the coffee giant. Rather, it will be a "card", which will be redeemable on iTunes to download the music videos. Think of it as a gift-certificate, for the limited purpose of buying one item on-line.

This seems like very clever marketing, and OTCS approves. The cards will be "collectable" and feature various images of Lennon. And because it is being released during the holiday shopping bonanza, consumers are likely to grab these up along with all the other gift certificates they will already be buying (and not have to carry around all day!).

The real question is: does this create a conflict of interest with Starbucks' Hear Music record label? More poignent is the fact that Paul McCartney, Lennon's former band-mate in The Beatles, is the Hear Music label's signature artist. Notwithstanding any contract disputes with McCartney's former label (EMI), what benefit is there to joining Hear Music if your old label can sell compilations in the same limited venue, with nifty packaging that benefits both your old label, and your former opposition in a trademark dispute (Apple iTunes / Apple Records Ltd.)?

Online Storage/Locker

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This looks interesting: MP3tunes, a company that appears to store your already PURCHASED music on-line, sued by the recording industry. The company offers users a "locker" with unlimited storage and streaming of music, enabling users to listen to their music on any computer, anywhere.

If the user has already purchased the music, what's the problem here? OTCS, regrettably, has not yet read the complaint. However, OTCS assumes this is a section 106 copying claim. Is this what the Copyright Act should protect? How is this any different than a purchaser taking their Case Logic book of CDs from their home-stereo, to their car, to their friend's home, to the office etc.? Music is mobile, and once purchased in one-format (e.g., MP3, 8-track) users should be able to enjoy the music on the corresponding playing -- no matter where. Aren't the labels trying to double-dip?

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Priority Records LLC; Virgin Records America Inc.; Beechwood Music Corp.; Colgems-EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Golden Torch Music Corp.; EMI Longitude Music; EMI Virgin Music Inc.; EMI Virgin Songs Inc. v. MP3Tunes LLC; Michael Robertson. Filed S.D.N.Y. 11/9/2007; 07 CV-9931]