Letter from AmeriKat: August Bits 'n Bobs

The AmeriKat will be taking advantage of the quiet August month in litigation to have a break for the next two weeks. Save for a massively important IP event to occur in the meantime, she will be scampering back to her weekly Letter in early September.

A little known fact about the AmeriKat that rarely surfaces during her legal work is that she plays the piano. Since the very elementary phases of her kittenhood she has enjoyed marching her paws up and down the keyboard for hours to Gershwin, Chopin and Beethoven. There was and still is nothing the AmeriKat loves more then grabbing a stack of brand new unseen sheet music and sight-reading pieces for hours. This ability to sight-read anything frustrated her teachers as it inevitably meant the AmeriKat spent less time practising one piece than reading them all, but it was unstoppable guilty pleasure. In the earlier days of the Internet she would try to find sheet music available on-line but there was little there of interest. In the rare instance music was available, the hollow printouts lacked the soul of the thickly bounded music books that the AmeriKat so enjoyed.

Don't steal this sheet! - Apparently things have progressed since the days the AmeriKat tried to find sheet music on-line. Although not breaking news, some food for thought recently came to the AmeriKat's attention via National Public Radio on this issue. NPR recently reported on the issue of sheet music piracy after Tony Award-winning songwriter, Jason Robert Brown, engaged in conversations with members of a peer-2-peer network who were sharing his sheet music. This followed his discovery of around 4,000 individuals offering his sheet music up for the taking. Brown estimates that about one-third of his income comes from the sale of his sheet music and called the discovery of the 4,000 individuals an "epidemic". Brown wrote to 10% of the "epidemic" asking them to stop sharing his music - all of whom reportedly agreed. He published the correspondence on his blog, including the exchange with an individual known as Eleanor who engaged the composer with an economic justification for the file-sharing, i.e., one instance of piracy can result in more exposure for the artist and thus more business.

A Stanford Law School fellow in IP, Alex Feerst, wrote to Brown following the exchange and says that the music publishing industry, like the recording industry, is living in the past:
"The existing copyright law directs a lot of money to the middlemen in this question. In the past, that was appropriate, because printing music, distributing music, pressing CDs - these are expensive, have been done on a large scale and they cost money. Now that the costs have really gone down, because of the Internet, those types of costs need to re-examined. And the best thing that could happen to enrich artists, by passing more along to them, and to empower consumers, to have lower prices and choice over how they want to interact with this art."
NPR reports that in doing so Brown could obtain $3.99 per song instead of the $1.50 he gets now. But Brown told NPR that he liked the support he gets from a large music publisher and ASCAP. Economic justifications for stealing sheet music may be weak, but, says the AmeriKat, what is the economic justification for the support that comes at a cost to an artist of $2.49 per song? Will Brown ever see a return on that money in his lifetime?

Barbie better watch her back, Bratz is back - IPKat readers may have been following the fight between Barbie and Bratz (here and here) where in brief, Barbie sued Bratz for copyright infringement last year and won. The injunction to stop selling the Bratz dolls and to transition the line to Mattel was finally overturned at the end of July. Now last Monday, the owners of Bratz, MGA Entertainment, filed a counterclaim alleging that Mattel conducted an elaborate corporate espionage scheme in which Mattel employees, including general counsel Robert Normile and their attorneys from Quinn Emanuel, engaged in a racketeering conspiracy in order to gain access to MGA's private showrooms to obtain confidential information of Mattel's competitor's plans. (picture, left - Did Barbie's expertise as a Secret Agent come in handy during the alleged espionage?) According to Am Law Litigation Daily, Quinn Emanuel partner Michael Zeller said that MGA's recent claims were "second-rate tactics by desperate lawyers" that "won't survive the pleading stage." To read more about this hilarious new suit, see this article in Corporate Counsel.

PepsiCo stops stealth drinking - Two weeks ago, the world's largest snack-food manufacturer, PepsiCo, sued two Connecticut manufacturers for trade mark infringement for their "camouflage beer can wraps." The wraps, produced by Outrageous Ventures and PrankPlace.com, disguise the alcoholic beverage contained within with their mimicking of PepsiCo's Pepsi and Mountain Dew labels. PepsiCo said that the association of the Pepsi and Mountain Dew marks with illicit alcohol consumption is "abhorrent" and likely to "upset" consumers. Millions of frat-boys disagree...

Material Girl gets sued - According to Hollywood gossip site, TMZ, Madonna and her daughter's "Material Girl" clothing line (picture, right) is allegedly facing trouble and not just from the fashion police. Clothing company, L.A. Triumph, has allegedly file a trade mark infringement law suit against Madonna claiming she misappropriated the "Material Girl" trade mark that they claim to have been using on their clothing line since 1997. Madonna's song "Material Girl" was released in 1985. For more information see this article in CNN.

Harry Potter can't protect you now - Last week Warner Brothers filed an action in Switzerland to stop the trade mark registration and use of "Harry Popper" for condoms. The imagery includes the use of Harry Potter style glasses and a wand being wielded by the prophylactic (click here to see the image). The Harry Popper brand was launched in 2006 and has already been successfully challenged in other jurisdictions including Germany and Austria. For more information see these articles in The Hollywood Reporter and Telegraph.

Oracle sues Google - US software company, Oracle, filed a copyright and patent claim against Google two weeks ago in California alleging that Google's android mobile phone operating system infringe seven of its patents. These patents were acquired by Oracle after it acquired Sun Microsystems this past January. Google says they have yet to be served with the court documents. For more information see this article in Wired.

And now for something different - Courtsey of @Ivoryblossom comes a hilarious little tale of rudimentary trade mark infringement. The AmeriKat would hate to ruin it for you, so asks you to click here.
Letter from AmeriKat: August Bits 'n Bobs Letter from AmeriKat:  August Bits 'n Bobs Reviewed by Annsley Merelle Ward on Sunday, August 22, 2010 Rating: 5


  1. Dear Amerikat:

    You may know this already but there is a phenomenal website called www.imslp.org hosted in Canada which describes itself as:

    The free public domain music library.
    Online since February 16, 2006 · 28,195 works · 69,995 scores · 677 recordings · 3,968 composers · 37 performers.

    There's an enormous trove of PD sheet music there. Enough to keep Norah busy for a very long time...

    Even quite a lot of Gerswhin, because Canada has not yet gone to life + 70 and George's stuff is PD in Canada - unless it was a joint work with Ira who lived until 1983....or some other still protected co-composer.

    www.IMSLP.org has been hissed at by at least one overly assertive publisher - but has stood its ground. See:


    Now, do you think that there is a counterpart skill in the legal world to being a good musical sight reader?

    Or a good improviser?

  2. The Wired article on Oracle v Google opens (predictably?) by stating: "Oracle’s suit against Google over its Android mobile operating system signals a major reversal in the stewardship of Java under new management...", calling it an "attack" on open source software.

    I don't suppose anyone looks to Wired for quality unbiased journalism on this topic, but Oracle is only acting on a licensing strategy that Sun initiated years ago. It astounds me that anyone would think that a for-profit corporation would just "give away" software without any underlying business strategy. Or that a company like Oracle would buy Sun unless it had intellectual assets from which value can be extracted.

    Sun always had a strategy to derive revenue from the embedded and mobile markets for Java technology. Android is eroding that market. This is business, not politics or philsophy!

    My take on the case can be found on my blog here.


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