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Archive for the ‘Music Law’ Category

Kris Kristofferson and Fred Foster once penned one of my favorite lyrics in the song Me and Bobby McGee, i.e., “freedom’s just another word for nothing left to lose.”  The sentiment is perhaps appropriate for the ongoing war that is being waged against copyright laws as we know them.  The latest battle in this war was fired by the esteemed Lawrence Lessig, famous lawyer and copyright scholar, in his new book Remix: Making Art & Commerce Thrive in the Hybrid Economy.

Remix Lawrence Lessig The main goal of the book is the demolishment of existing copyright laws, which Lessig has described as Byzantine.  He believes our current copyright laws are futile, costly and culturally stifling. The "hybrid economy" is described by Lessig as one in which a “sharing economy” coexists with a “commercial economy.”  See this very humorous interview by Stephen Colbert.  He gives examples such as YouTube, Flikr and Wikipedia, which rely on user-generated "remixes" of information, images and sound to illustrate his point.  This “hybrid economy,” in Lessig-speak, is identical to what he calls a "Read/Write (RW)" culture — as opposed to "Read/Only (RO)" — i.e., a culture in which consumers are allowed to "create art as readily as they consume it."  Thus, the “remix” to which he refers is the concept of taking another persons copyrighted work and “making something new” or “building on top of it.”  This is what us less-published copyright lawyers like to refer to as a derivative work!  And that is the crux of Lessig’s problem:  the copyright law DOES in fact make provision for this type of creative endeavor, provided that the creator of the derivative work gains the permission of the copyright owner.  This is that with which Lessig seeks to do away.

In the Colbert interview, Lessig drolly points out that 70% of our kids are sharing files illegally and that the “outdated” copyright laws are “turning them in to criminals.”  This reminds me just a bit of what my Daddy used to tell me: just because everybody’s doing it doesn’t make it right!   Or, as Colbert blithely responded, “isn’t that like saying arson laws are turning our kids into arsonists?”  The obvious conclusion is that perhaps the law is simply not the problem.

Colbert then comically crosses out Lessig’s name on the cover of his his advance copy of Lessig’s book, draws a picture of Snoopy inside, and then questions Lessig as to whether the book was now his (Colber’t’s) work of art, to which Lessig says “that’s great,” we “jointly” own the copyright.  That’s a point to which Lessig’s publisher, Penguin Press, would surely not acquiesce.  In the final retort to Lessig, Colbert makes the point that he likes the current system, and I quote, “the system works for me.”  I might add that the system seems to be working extremely well for Lawrence Lessig as well.  Lessig is making a fortune exploiting the very system he criticizes as antiquated – the very essence of free speech, I suppose, but in the final analysis, a bit disingenuous.

While I do admire Professor Lessig for working toward a solution to a perceived problem, it’s very difficult to believe that tearing down the entire system of copyright laws in order to accommodate a large percentage of prepubescent teenagers who are too cheap to pay for their music is the appropriately measured response we need in this instance.   Call me crazy.

Here are several good critiques of Lessig’s work and ideas here for further exploration of this issue:

The Future of Copyright, by Lawrence B. Solum (download PDF from this page)

Lessig’s call for a “simple blanket license” in Remix, by Adam Thierer

Copyright in the Digital Age, by Mark A. Fischer

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By Jennifer Bendall, Executive Director of musicFIRST

Did you know that every time you hear your favorite artist’s hit songs over the airwaves he or she doesn’t receive a single penny from the radio stations broadcasting the song? Sounds crazy, right? While AM and FM music broadcasters rightly pay the writers of these songs, they refuse to compensate the performing artist as the performer of the song.

In fact, AM and FM music radio stations earn a cool $16 billion a year in advertising revenue without compensating the artists and musicians who bring MusicFirstmusic to life and listeners’ ears to the radio dial.

The fight for a fair performance right on radio has been going on in the U.S. for more than 80 years. Frank Sinatra was a leader in this fight 20 years ago, and his daughter Nancy carries the legacy today. In 2008, Nancy Sinatra testified before a House subcommittee on behalf of the musicFIRST (Fairness in Radio Starting Today) Coalition, telling members of Congress about the life of an artist:

Imagine struggling in your job, perhaps for years, to make the best product you can – a product made of your blood, sweat and tears. Now imagine people taking that product to use to build their own hugely successful businesses. Just taking it – no permission, no payment, and no consequence.

A fair performance right is not only beneficial for the musicians and artists behind the music, but also for the U.S. economy. Currently, the U.S. is the only member of the 30-country Organization of Economic Cooperation and Development (OECD) that does not fairly compensate performing artists when their songs are played on the radio. This puts the U.S. in the company of countries such as Iran, China and North Korea who don’t pay royalties to performers for their intellectual property. Plus, since we don’t have a performance right here in the U.S., artists lose out on the royalties collected overseas for the play of American sound recordings.

The musicFIRST Coalition, a group of artists, musicians and music community organizations, supports the creation of a performance right on AM and FM radio. The Coalition formed in June 2007 to ensure that all performers – from aspiring and local artists, to background singers and well-known stars – are fairly compensated when their music is played on the radio. On February 4, 2009, bipartisan legislation – the “Performance Rights Act” – was reintroduced in the House and Senate. MusicFIRST supports this measure and plans to remain at the forefront of the fight for fair pay for airplay.

AM and FM radio remains the lone holdout in providing a fair performance right for artists and musicians. All other music platforms – Internet radio, satellite radio and cable television music channels – pay a fair performance royalty for the use of music. It’s time that radio broadcasters are held to the same standard.

Eighty years is far too long for AM and FM radio stations to refuse to compensate performers for their work. Let this be the year fairness is provided to the talented performers who bring to life the music of our lives.

My special thanks to guest author of today’s article, Jennifer Bendall, and Lindsay Dahl for making this happen.  For more information about musicFIRST and the great work they’re doing, go to www.musicfirstcoalition.org, or click on the picture above.

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The interview that I gave to DigimusicTV.com is becoming viral.  Metacafe has it in three parts:

Barry Shrum Entertainment Attorney Part 1 

Barry Shrum Entertainment Attorney Part 2 

Barry Shrum Entertainment Attorney Part 3 

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OUT WITH THE OLD

After over 18 years of service to the organization, Harold Bradley is no longer president of Nashville’s Local 257 chapter of the American Federation of Musicians.  Dave Pomeroy was elected president last week by a vote of 675 to 449.  Out of it’s 2620 members, 1165 votes were cast in this election, which is more than double the number of votes cast in the 2005 election. 

This is most certainly the end of an era for Harold Bradley, for whom Harold I have a great deal of respect and admiration.  He began his long services as president of Local 257 on January 1, 1991 and later became the International Vice President serving the AFM’s International Executive Board, a position he will likely retain until 2010.  He received the AFM’s Lifetime Achievement Award in 2006, the same year he was inducted into the Country Music Hall of Fame.  Bradley was also the first president of the Nashville chapter of NARAS and continues to serve as a member of the Grammy organization’s Board of Governors.

Harold and his brother, Owen, built Nashville’s earliest recording facility, Castle Recording Studio, in the early 40’s. As the architect of the Nashville Sound, Harold was part of Nashville’s original “Nashville Cats,” the A-Team, which included such notables as Boots Randolph, Floyd Cramer, Hargus “Pig” Robbins, Buddy Harman and The Jordanaires. 

He is one of the most recorded guitarist in the world, and has been pickin’ on country albums for over 60 years, including work on such classics as Bobby Helms’ Jingle Bell Rock, Brenda Lee’s I’m Sorry, Roy Orbison’s Only the Lonely, Patsy Cline’s Crazy, Roger Miller’s King of the Road, Tammy Wynette’s Stand By Your Man, Eddy Arnold’s Make the World Go Away, and Loretta Lynn’s Coal Miner’s Daughter, just to name a few.

Harold Bradley will always be considered a formidable force in Nashville’s music industry. 

IN WITH THE NEW

Bradley’s replacement, Dave Pomeroy, is a well known and seasoned musician as well, having played electric and acoustic bass on more than 500 albums during his 34 years in the music industry.  Dave has played with artists including Emmylou Harris, Alan Jackson, Elton John, Peter Frampton and Chet Atkins, including work on 6 Grammy-winning projects.  Dave is also an independent producer and has produced numerous projects which can be found on website.

Pomeroy issued the following statement after winning the election:

"I am humbled to be elected to the office President by the members of Local 257. Thanks to everyone who voted and all those who volunteered to help my campaign.

On behalf of all members past and present, I thank Harold Bradley for his many years of dedication and service to this Local and the AFM. I am honored to be carrying on the historic tradition of leading Local 257 as we move into a rapidly changing future.

We have one of the most dynamic, versatile, and innovative music communities on earth, and I look forward to representing the best interests of all Nashville musicians, both here at home and around the world."

Pomeroy will begin his three-year term effective January 1, 2009.

In the same election, Craig Krampf defeated Billy Linneman for Secretary-Treasurer by a vote of 570 to 539.  Re-elected to the Executive Board were Bruce Bouton, Bobby Ogdin, Andy Reiss, Laura Ross, and Denis Solee, who were joined by new members Duncan Mullins and Jimmy Capps.

THE CONTROVERY

There is much controversy surrounding the election, which is viewed by some as “revolutionary.”  The scuttlebutt is that a riff has been developing since 2001 between the leadership of the AFM’s International Executive Board and AFM members who were also members of the Recording Musicians Association, the local chapter of which Pomeroy is president.   The RMA, a player conference sanctioned by the AFM, is a 1400-member organization of studio musicians with chapters in Los Angeles, New York and Nashville,  It is arguably one of the most active conferences in the AFM.

Bradley and Linneman, for better or worse, threw their support behind resolution put forth by Thomas F. Lee, the IEB President, and passed by the IEB in Las Vegas in June 2008, which threatened to “de-conference” the RMA at its September conference. 

Lee’s opposition to the RMA derived from stemmed from his promotion of a deal which eliminated so-called backend new usage “buyouts” of musical scores used in video games, something which the AFM was reluctant to do in the past.  Read more about his in this Variety article.

The lines of battle were thusly drawn, and the Local 257 uprising has been building ever since, with tempers flaring on both sides of the disagreement.  (A detailed, though somewhat biased, historical trail can found on the “Sounds” blog).  As a result of the June vote, Pomeroy and over 150 other local members of the AFM presented a resolution at the executive board meeting of Local 257 calling on the members to censor Bradley for his support of the anti-RMA resolution, which Bradley described as “ridiculous” and to which he responded:

This resolution, submitted by RMA President David Pomeroy, is intended to influence my vote! I will continue to vote my conscience (based on the facts before me), and I resent this attempt to force me to vote otherwise.

This statement appeared in an open letter to Local 257 in the July-September 2008 edition of the Nashville Musician, the Local’s newsletter.  This exchange ultimately led to the controversial election of last week.

The waves of discontent were also felt in Los Angeles, where RMA member Vince Trombetta was elected as Local 47’s president earlier this month, also in an apparent backlash against Tom Lee’s anti-RMA leanings.

The principals of democracy are certainly at work in the AFM, just as they were in the presidential elections this year!

SUMMARY

I know Dave Pomeroy and I  believe he will be a caring and effective leader for the AFM.  I congratulate him and wish him the best in the new endeavor, knowing full well that he has some difficult struggles ahead in leading the opposition. 

I also know and respect Harold Bradley.  Harold is a Nashville icon who has been an effective leader of Local 257 for almost two decades.  I believe he wanted what he thought was best for the musicians and I know that he always had the musicians’ interests at heart.  I thank him for his service to the industry.

But no one is perfect.  While I do not intend to take either side in this debate, I will note that perhaps it was indeed time for a revolution.  There is no doubt now that new leadership is the order of the day. Nashville’s musicians are the backbone of our industry and they deserve adequate compensation and representation.  The majority of them now feel that Dave will do that and I commend their choice.  While no one really likes it when it comes, change is often a good thing.   I hope that at least in the Local 257, egos can deflate to normal and tempests can subside, and harmony can once again return to the organization that is at the heart of Music City.

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For those reLORiPhoneaders sporting new iPhones, Blackberrys, Windows Mobile smartphones or even for those diehard Palm fans who own Treos, Law on the Row is extremely pleased to announce that it is going mobile!  The new mobile version loads faster on smaller devices with more limited web browsers.  Just type in the following URL on your mobile device:  http://lawontherow.mofuse.mobi.  You enjoy the same great content, without some of the photos and links.  It’s a great way to keep up with articles on the road.  Enjoy!

By the way, for fellow bloggers, you can create your own mobile website using your RSS feed at www.mofuse.com.

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On August 7th, a lawsuit was filed by Kristen Alison Hall, former member of the country band, Sugarland, against the remaining original members of the band, Jennifer Nettles and Kristian Bush.   A copy of the complaint can be viewed here.Sugarland

Essentially, the lawsuit alleges that Nettles and Bush breached a partnership agreement between the three members, breached their fiduciary duty to Hall, and failed to account to her for partnership profits.  Among other facts alleged, Hall claims that she contributed the trademark, “Sugarland” to the partnership.  A search of the trademark database at www.uspto.gov shows that the partnership owns two marks:  a service mark for live performances, Reg. No. 2747326, and a trademark for merchandise, Reg. No. 3250679.  All three original members, Hall, Nettles and Bush, are identified as the registrants on these marks.

More about the lawsuit can be gleened from this article in the Atlanta Journal-Constitution, written by entertainment journalist Shane Harrison, with contributions by Rodney Ho.  Yours truly is cited as a resource in the article.

This lawsuit provides a dramatic visual aid as to why it is so important for musical groups to plan in advance with regard to issues such as who owns the band name in the event of a dispute.  Either a band partnership agreement, or a  properly established limited liability company or corporation, can effectively provide for what happens to the name in the event a member leaves.  One method I commonly use is to establish a limited liability company and assign the trademark and trade name to the company.  Provisions for what happens to a member that leaves the LLC are then incorporated into the Operating Agreement which set forth the procedure for valuing the company’s assets in that instance.  Such a structure could have eliminated the need for a lawsuit such as the one that Hall filed against the other two members of Sugarland.

If your band does not have a written document dealing with this issue, you should consider retaining an entertainment attorney for such purposes, particular if your band is starting to generate significant income.

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On August 4, 2008, the Second Circuit court of appeals overturned a lower courts opinion that Cablevision’s Remote Storage” Digital Video Recorder (“RS-DVR”) system violated the Copyright Act by infringing plaintiffs’ exclusive rights of reproduction and public perfCartoon Network ormance.  The full 44-page opinion is available at Cartoon Network, LLP, et al. v. Cablevision.  In my humble yet fully animated opinion, the Second Circuit’s opinion was not at all well reasoned nor, for that matter, even common sense — I believe it misinterprets at three very important areas of the Copyright Act and interpretation thereof:

When is a work “Fixed” According to Section 101

Through a system of buffers, Cablevision’s RS-DVR will allow customers who do not own stand alone DVR’s to record programming, which resides on Cablevision’s servers, and “time-shift” it to view it at a later date.  Certainly a great concept, but one which, in my opinion, should require authorization from the owners of the copyrights. 

In arriving at its conclusion, the court determined that the buffer used to process the steam of data only “copies” the data for a duration of 1.2 seconds, before transferring it to another buffer used to reconstruct a copy of the program for any customer who has asked to view it at a later time.  The court concluded that this “embodiment,” i.e. the copy, was transitory in duration and therefore not “fixed” pursuant to Section 101 of the Copyright Act.  Therefore, the copyright owners’ right of reproduction was not violated.  This is clearly erroneous reasoning:

The definition of “fixed” in Section 101 of the Copyright Act states, in its entirety:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

In arriving at its determination, the Second Circuit focused on its condensed version of the definition, i.e. a work is “fixed” when its embodiment “. . . sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.”  The court concluded, based on this shortened version of the definition, that the “language plainly imposes two distinct but related requirements, i.e. an “embodiment requirement” and a “duration requirement.”

The Second Circuit’s error is grammatical in nature:  it misinterprets the language of the definition of “fixed” by assuming that the phrase “for a period of more than transitory duration” modifies the words “permanent or stable” when in fact it actually modifies the antecedent phrase “permit it to be perceived, reproduced or otherwise communicated.”  This is certainly the case with regard to the RS-DVR – it fixes the copies for in sufficiently permanent state in one buffer (i.e. the 1.2 seconds) to permit them to be reproduced in another buffer for a period of more than transitory duration.  Thus, the court got it wrong.

Without getting into too much detail, the court also incorrectly analyzes a 9th Circuit cases, MAI Systems and its progeny which correctly apply the definition of fixed to a copy of a work created in RAM memory for a period of minutes.  The effect of this misinterpretation is to put legal practitioners in the precarious position of trying to determine at what point between 1.2 seconds and 2 minutes does a reproduction arrive at a “more than transitory” state.

Ironically, the Second Circuit ignores the U.S. Copyright Office’s analysis of this precise issue in its 2001 report on the Digital Millennium Copyright Act which elaborated that a work was fixed “unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.”  This clarification is in line with my earlier interpretation that the phrase “more than transitory in duration” modifies the communication or perception, not the embodiment itself.  The Second Circuit stated that, in its mind, the U.S. Copyright Office’s interpretation “reads the ‘transitory duration’ language out of the statute.”  To the contrary, however, it is the correct interpretation in that it incorporates the transitory duration requirement into the appropriate section of the definition.

Finally, the Second Circuit completely ignores the last sentence of the definition, to wit:  A work . . . is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”  In this instance, the court readily admitted that an unauthorized copy of the work was stored, i.e. “fixed” on Cablevision’s servers simultaneously with its transmission.

When is an infringer not an infringer?

In extending recent trends by some circuits to weaken the strict liability component of the Copyright Act, the Second Court refused to find that Cablevision was a direct infringer.  Instead, it rules that the customer is the direct infringer in this instance of digital recording, showing his or her intent to make a copy when he or she presses the record button on the remote.  The court reasons as follows:

In this case . . . the core of the dispute is over the authorship of the infringing conduct.  After an RS-DVR subscriber selects a program to record, and that program airs, a copy of the program–a copyrighted work–resides on
the hard disks of Cablevision’s Arroyo Server, its creation unauthorized by the copyright holder. The question is who made  this copy. If it is Cablevision, plaintiffs’ theory of direct infringement succeeds; if it is the customer, plaintiffs’ theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs.

Emphasis mine.  The first thing to note about the court’s conclusion is that it realizes, right off the bat, that the copy created on the servers of Cablevision is an infringement.  In its mind, however, the only question is who made the copy.  Now, that, of course, flies directly in the face of a host of copyright concepts which I will not address here, but suffice it to say that this is problematic.

But, for the moment, let’s just examine how the court ultimately determines who had the “volition” to infringe in this specific case:

There are only two instances of volitional conduct in this case: Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy, and a customer’s conduct in ordering that system to produce a copy of a specific program. In the case of a VCR, it seems  clear–and we know of no case holding otherwise–that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

The court then continues its analysis by example, offering the examples of a retailer who owns a photocopier and rents it out to the public as reinforcement of its conclusion, finding that because the retailer would not be liable for infringement, neither should Cablevision.   Despite the fact that there is case law holding that such a retailer WOULD, in fact, be liable for infringement, the Second Circuit errs in failing to see the difference between a VCR in the analog world, a single, stand-alone device used express by the customer, and a process devised by a company which makes infringement as simple as pressing my record button on my remote.  The court does not find this a “sufficient” distinction.  The court’s error in logic is apparent in this prose when it examines a 6th Circuit case on the issue:

In determining who actually “makes” a copy, a significant difference
exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Is this 2001 Space Odyssey?  Did H.A.L. take over when I wasn’t looking?  Who programmed the system?  

If this were not enough, the Second Circuit then performs a great deal of legal gymnastics to support its finding:  First, it examines the video on demand process to illustrate that Cablevision does not have control over the transmissions being recorded by theCablevision subscribers in the RS-VCR system.  Are they for real?  Ever heard of apples and oranges.  The VOD system is a fully licensed process which is, dare we say it, nothing like the RS-VCR system.  Secondly, the Second Circuit uses the distinction between “active” and “passive” infringement under the Patent Act to jump to the almost humorous, if it weren’t so wrong, conclusion that:

If Congress had meant to assign direct liability to both the person who actually commits a copyright-infringing act and any person who actively induces that infringement, the Patent Act tells us that it knew how to draft a statute that would have this effect.

Every intellectual property attorney worth his or her salt knows that the Copyright Act and the Patent Act are very limited in their usefulness for purposes of using one to interpret the other.  That’s why it’s said that the Copyright Act is a strict liability statute, whereas, the Patent Act is not so much.

When is work “publicly performed”?

The final error committed by the court is in its analysis of whether the buffered copy delivered to individual customers was “publicly performed.” In this regard, the Second Circuit concluded:

under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.

Again, the Second Circuit has to do a hatchet job on the definition of “public performance” in order to arrive at this convoluted conclusion.  The definition of “public performance” in the Copyright Act is actually found in the “publication” definition of Section 101.  It states, in its entirety:

To perform or display a work “publicly” means — 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Emphasis mine.  Whereas the Second Circuit zeroed in on the phrase “to the public” in making its determination, the definition clearly intends to define public performance as any process that allows the public, in general, the ability to receive the transmission, whether or not it is in the same place or the same time.  Its not very difficult to see the fallacy of the Second Circuit’s reasoning.   The Cablevision RS-DVR clearly does precisely what the definition anticipates, it creates multiple copies stored in the buffers for individual subscribers in multiple places, who then view the (buffered) transmissions at different times. 

While this seems simple, the Second Circuit jumps through numerous irrational hoops to arrive at the idea that:

the transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons “capable of receiving” it, to determine whether that transmission is made “to the public.”

Nothing in the statute dictates this conclusion, to the contrary, the legislators probably thought that the word “public” was generic enough to not need interpretation. 

The effect of this ruling, at least for now, is that anyone can make digital copies of any copyrighted work on their servers for purposes of transmitting to an individual customer, so long as that individual customer makes a request for it, and there is no implication of the performance rights.

This is a fine example of a court “reasoning” the meaning completely out of a statute. 

Conclusion

If it is not obvious by now, I think this is one of the most poorly reasoned and drafted opinions by a Circuit Court that I have read in a long time.  If there is a bright side, it is that the effect of this decision is primarily that it overturns the grant of a summary judgement by the lower court.  From a broader perspective, however, and the more unfortunate result is that, because of the concept of stare decisis, this reasoning can now be cited in other cases in other jurisdictions across the country as good law.  So, unfortunately, we entertainment attorneys will be dealing with the negative impact of this decision for some time to come, until perhaps some higher court, in this case the Supremes, decides to rectify it.

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