The Trademark Blog - Latest Comments in Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

Re: Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

ScottW — Fri, 06 Jun 2008 16:25:34 -0000

Marty: The Right of Publicity claim might not be effective in that most statutes and actions at common law require the use of a name, voice or likeness "on or in a product or for the purpose of advertising goods or services." Additionally, in most cases, the use of a name, voice or likeness in "Film" is specifically exempt. (See Astaire v. Best Video and California's 3344). That being said, it's a challenging question because since he did not "fix' his performance in the "tangible medium of expression" (i.e.; the video) and if "Film" is considered exempt by both statute and Astaire, I am not sure what claim he would assert in copyright or right of publicity for the use on a non-commercial site.

Re: Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

JoelM — Thu, 05 Jun 2008 10:46:07 -0000

There's this rendition out there too!
http://www.youtube.com/watc...

Re: Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

esqmarty — Wed, 04 Jun 2008 13:29:05 -0000

Yes, sound recordings typically contain rights in composition and in
performance. However the video in question isn't a copy of a sound
recording, it is a copy of a live performance. If Prince simultaneously
recorded his performance, the 'bootleg' video is not a copy of that
recording. Prince does have several remedies: the anti-bootlegging act
(Section 512 of the URAA - see Patry's discussion in Chap 24 of his
treatise); rights of publicity; possible breach of contract. The point here
is that because the anti-bootlegging statute is not deemed to be a
copyright, it wouldn't support use of the DMCA.

Wrt Radiohead, Thom Yorke's comments as reported in the media appear to have
been off the cuff, and not representing any official legal assertion of the
rights. I don't think he attempted to compel Prince to do anything.

We should also bear in mind that, without having reviewed YouTube's terms of
service specifically, these sorts of ToS agreements usually provide the web
host with broad latitude to remove content for reasons other than copyright,
and in this situation, would seem to have various theories of infringement
of third party rights to remove the video.

As much as we would want to see it.

Marty

Re: Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

mxr — Tue, 03 Jun 2008 22:45:54 -0000

Prince's attorneys are out of control, I doubt the little rocker actually authorized them to send a takedown notice. Given Radiohead's fame, and the fact they created the song and made it famous, many music fans are not going to appreciate Prince's legal effort. Doesn't he owe royalty to Radiohead (or it's label) for playing it live? Doesn't he have enough money and fame that he ought not care if he covers someone else's song and it gets posted on YouTube by one of more than 100,000 fans in attendance, paying more than $100 each for tickets? The ironic thing is that he got rave reviews for his performance, particularly of that song, so why does he care if people get to see it after the fact, in a fairly non-commercial setting like YouTube? All that posting did is enhance his image among music fans who aren't particularly Prince fans, until now that he's pulled it. He's a creep. What the hell is he doing at Coachella anyway? He doesn't belong there... Creep...

Re: Law School Fact Pattern: Prince, Radiohead, 'Creep' and the DMCA

Casey McG — Tue, 03 Jun 2008 19:07:17 -0000

Sound (and video) recordings typically contain two separate rights; the rights in composition (publication) and performance. Prince owns is the author of the copyright to his performance of the song, though Radiohead (or more likely its publishing company) own the copyright to the song's composition. Radiohead cannot compel Prince to allow unauthorized copies of his performance to be posted on the Web.