WHAT ARTISTS CAN LEARN ABOUT BRANDING FROM THE PARTRIDGE FAMILY

In a few words, your brand can be even more valuable than your talent. This is the lesson we can draw from recent litigation brought by the actor David Cassidy against the owner of The Partridge Family. As a star of The Partridge Family, David Cassidy may have been well-compensated for his work on each episode, and he undoubtedly has earned significant residual income from re-runs over the years. Apparently only now, however, has he realized the amount of income he lost because he did not share in revenue received from merchandise sales. He recently filed suit claiming that he is owed a fortune.

Artists should be as concerned about revenue opportunities that may arise beyond their actual work, opportunities such as merchandising or endorsements, as they should about the amount they are paid to perform. They should try to ensure that their talent contracts guarantee them a share in revenues generated from merchandising. And they must then police such uses to be sure they are receiving their rightful share. Better not to be seeking your fortune three decades later.
 

A TRADEMARK SURVEY CHECKLIST

Here is a six-step checklist for trademark infringement litigants hoping to prove likelihood of confusion through survey evidence. Litigants who carefully consider each of these issues should have a better chance of having their survey results admitted in evidence.  It is derived from last year’s summary judgment decision in Competitive Edge v. Staples in the Northern District of Illinois.

1. Universe - Be sure to correctly identify the “universe” of respondents. It should be consumers in the market at issue. If the universe is erroneous or undefined, the reliability of the survey is diminished.

2.  Sample – The sample population must represent the universe, and be neither under-inclusive nor over-inclusive.

3. Clear Questions – Survey Questions must be clear and precise..

4. Filter Questions – The survey should include some open ended questions. Acceptable answers should include “don’t know.”

5. Double Blind – Ideally neither the questioner nor the respondents should know the reason for the survey.

6. Data Collection and Recording – Questions must be asked, and responses recorded, consistently and accurately.
 

BETTER COPYRIGHT REGISTRATIONS REQUIRED IN THE INFORMATION AGE

Copyright owners may now be filing more copyright applications because district courts in New York, Arizona and Alaska have ruled that registration of a compilation does not suffice to register the individual works included in the compilation unless the individual works and authors are specifically identified on the application. For new works, copyright owners should now register new works individually in addition to registering the compilation, or specifically identify each work and author on the compilation application.  For works previously included in a compilation registration, but not specifically identified, copyright owners must either seek individual registration or supplement the original registration. Prior to the three recent decisions, the Copyright Office had permitted, and based in part on that policy courts had allowed, that a single registration for the compilation sufficed to register the individual works included in that compilation regardless whether the individual authors and works were specifically identified.

I see the recent decisions as a product of the information age. The established rule was one steeped in practicality. It was cumbersome for owners to prepare applications, and for Copyright Office employees to file and catalog them. Searching was cumbersome, because one had to go to the Copyright Office to look through the catalog and review hard copy files. Access to deposit copies was restricted. As a practical matter, few were actually searching, and it seemed wasteful to require more burden and paper when a single registration would suffice in many instances.

Now we can now store, and find, almost everything online. Instead of having to send a person to the Copyright Office to look at paper records, one is increasingly able to get information online. And we expect that. We want to be able to access and search all information all the time. Now that logistical impediments to discovering information are being removed, we won’t tolerate faulty inputs. In particular for those who want to license, and therefore benefit from fast and complete access to comprehensive information about prior art, the modification of behavior certain to result from recent court decisions is a boon.