July 2007 Archives

Radio Performance Royalties

President Bush Visits Nashville, Discusses Budget (Doesn't know that artists and labels earn no royalties from terrestrial radio broadcasts, unlike songwriters and publishers.)

Q Mr. President, music is one of our largest exports the country has. Currently, every country in the world -- except China, Iran, North Korea, Rwanda and the United States -- pay a statutory royalty to the performing artists for radio and television air play. Would your administration consider changing our laws to align it with the rest of the world?

THE PRESIDENT: Help. (Laughter.) Maybe you've never had a President
say this -- I have, like, no earthly idea what you're talking about.
(Laughter and applause.) Sounds like we're keeping interesting
company, you know? (Laughter.)

Look, I'll give you the old classic: contact my office, will you?
(Laughter.) I really don't -- I'm totally out of my lane. I like
listening to country music, if that helps. (Laughter.)

Maybe creating a performance royalty may not be a bad idea if radio listeners do buy less music than non-radio listeners. The NY Times reports, Radio Listeners Seem to Buy Less Music: "Very roughly, an hour’s worth of radio listening per person per day, over the course of a year, corresponded with a 0.75 drop in the number of albums purchased per capita in a given city."

Here's the full paper on SSRN: Stan Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry (March 2004)

"The reason for the weaker copyright protection on sound recordings relative to movies appears to be that radio broadcasters have argued, and it is generally accepted, that radio play benefits record sales and thus there is less need for radio broadcasters to purchase the rights to broadcast the sound recording. This impact of radio play on record sales is commonly referred to as a 'symbiotic' relationship between these two industries and is often mentioned by radio broadcasters as a reason for keeping rates low, at hearings to set copyright payments. Yet there appears to be no systematic examination of this relationship. In this paper I present evidence indicating that radio play does not appear to benefit overall record sales."

Sue Everybody!

Could Apple be held liable for infringing material on YouTube that is displayed through the YouTube viewing application on the iPhone? News.com: Could YouTube drag Apple into copyright fight? : "[Robert Tur is] irked at Apple now because the new iPhone has a feature that allows users to view YouTube videos."

How is Apple's liability for infringing videos on YouTube viewed on the iPhone any different than its liability for infringing videos viewed on a Mac? Or Microsoft and Dell? Heck, we can add in Sony, because its DVD players could be used to watch pirated movies!

Pearls before Eds

Here is the complaint in the Pearl Oyster Bar v. Ed's Lobster Bar suit:
Powerful Katinka, Inc. v. McFarland

Ed' Lobster Bar copies each and every element of Pearl. Ed's Lobster Bar's meny consists almost entirely of dishes created by Charles that currently appear or have appeared on the Pearl menu or which were prepared for special events while McFarland worked at Pearl. On information and belief, Ed's Lobster Bar prepares and plates the dishes in the same manner as Charles does at Pearl. Moreover, Ed's Lobster Bar serves Pearl's food in a virtually identical setting. Ed's Lobster Bar totally mimics the look and feel of Pearl as well in its color scheme, eschewing of reservations, lighting, bar area, seating, service style, and streamlined menu and wine list. Even the batroom and wait stations at Ed's Lobster Bar are clones of Pearl's.

The look and feel claim is based in §43(a) of the Lanham Act. The complaint details the similarities in trade dress:


  • in a city filled with a variety of restaurant layouts, sizes and shapes, defendants have selected a long, thin space almost exactly like Pearl's.

  • a long bar with 20+ seats topped with a white marble countertop

  • a long white counter on the wall opposite the long bar to maximize seating

  • wheat back barstools

  • silver colored pendant lights above the bar, a mirror being the bar and a chalkboard

  • a simple silver-colored beer tap at the center of the bar

  • wood flooring stained the same color

  • wainscoting around the entire dining room, waist high

  • gray wainscoting, sea grass green bathroom doors and accents, cream/white walls, a cream/white painted brick wall and silver/silver-colored accents around the room

  • long thin wall cabinets installed behind the bar

  • the Pearl's bathroom "down to the vanity"

  • a window seat in the front window

  • the same silver double coat hooks under the bar

  • "understated artwork referring to Maine and piscine themes"

  • a wait station consisting of two wheat straw back chairs next to a wooden cupboard painted the same color as the wainscoting and containing glassware, coffee mugs and condiments

  • Deliberate omission of expensive menus and wine lists changed daily or weekly, tablecloths, bartenders and busboys, designated hosts, reservations, large parties, host station, and uniformed staff with rigid staff assignment to particular responsibilities

  • place settings are identical-- with a cloth napkin, simply folded, topped with a knife and fork, a packet of Westminster Oyster Crackers and menu/wind (sic) list 'placard' menus

  • service "with an air of informality and conviviality"

The complaint alleges that there is actual consumer confusion, citing a number of reviews from the internet. In addition, menus and photos of Pearl, Ed's and competing restaurants are attached to demonstrate that it is possible to create a different restaurant based on the same inspiration.

One of the interesting aspects of the complaint is the argument that a Sous chef is a fiduciary of the restaurant. McFarland had asked Charles to become a partner and open more incarnations of Pearls, and she had declined. But by taking the menu, style and recipes from Pearl and using them to create a competing restaurant, Pearl alleges that McFarland breached his duty as a fiduciary of the restaurant.

Previously: Lobster Rolls and the Lanham Act