Create, Consult, Control
News & commentary on intellectual property issues.
Apr202010 | Steve O'Donnell
What I learned at the 2010 Launch Music Conference
It’s been a long time since the last music conference I attended (when I was on the other side of the fence). It’s interesting to see how little has changed over the last 20 or so years, but what can we do to change the things that should change?
I had a table at the 2010 Launch Music Conference last weekend and met a nice group of musicians and promotional professionals (and handed out a lot of brochures). It’s oddly comforting that some things have remained the same over the years, and probably will forever--musicians still wear genital-crushingly tight jeans and spend a disproportionate amount of time on their hair, they still get tattooed and still wear boots. Unfortunately, musicians still get screwed over. I’m not going to convince anyone to spend less time on their hair (and I’d never try) but hopefully I can convince someone that with a little planning, and a little legal help, they can avoid some of the most common headaches they’re likely to run into.
First off, a poor-man’s copyright isn’t worth the postage. Just don’t bother. Copyright registration is relatively inexpensive and quick. Copyright is also one of the few things that can benefit from an economy of scale, i.e., the more tracks you register at once, the less your attorney is probably going to charge you for each registration.
Secondly, about your band’s name, someone’s already using it. Ok, maybe that’s not the case, but you should assume it is, at least until you do some research and make sure that it’s not. Also, even it it’s all yours today, what happens when someone across the country comes up with the same name? What if they get picked up by a label before you, and register the name as their trademark? Do you then have to change your name? The best thing to do is to register a trademark for you band’s name. Maybe it doesn’t make sense right now to spend $1000 or so right now on a federal registration, but a state registration is a good first step, and probably a lot cheaper.
Thirdly, homemade contracts aren’t necessarily better than no contract, and might be worse. On one hand, I guess it shows to that punk isn’t dead, the DIY attitude is still thriving, but the business side of things should be left to the business people. No episode of Behind the Music contains the line "I'm sure glad we never hired a lawyer."
The biggest problem I heard was bands just not getting paid. Whether your agreement is for a flat payment or for a percentage of the gate, a lot of venues don’t like to pay musicians. The best way to avoid this is to have a contract upfront, if possible. It seems a lot of (especially smaller) venues shy away from contracts and think you should just trust them, maybe so they feel better about not paying. If that fails, the natural inclination is to resort to a little violent self-help. Generally, that’s not the best way of doing things and can lead to some other problems, such as not getting booked anywhere but the police station. Something that’s usually pretty simple and straight forward is a District Justice (Small Claims) lawsuit. These suits can be handled for a pretty small filing fee and without a lawyer, although it’s always a good idea to hire a lawyer if you can--some may take your case for a cut of what you win. Small Claims is limited (in PA) to claims under $8000 so if your agreed fee was more than that, you’ll need to file somewhere else.
Lastly, I also learned that some people like to dress as members of the Imperial Fleet and walk around the convention center.
Apr072010 | Steve O'Donnell
You probably don't want a provisional patent application
A number of “inventor assistance” services tout a provisional patent as a low-cost way of obtaining some degree of patent protection. Although a provisional is a little cheaper at the start, many people will wind up paying more in the long run than if they instead focused on a non-provisional application.
As I said before, I usually think of patents as consisting of two parts: the claims and everything else. A provisional patent is the “everything else.”
When I draft a patent, I start with what I consider the two hardest sections: the claims and the summary. The claims are tricky because they define the covered invention in as precise language as possible; the summary is tricky because it’s the “quick read,” plain language summary of the claims.
The claims are written for an intended audience of other patent lawyers and federal judges; the summary is written for potential infringers to read and hopefully come to the conclusion that a license makes better business sense than defending a lawsuit.
The rest of a patent is the foundation for the claims to stand on, and just like how like the visible portion of a building isn’t going to last without a solid foundation, patent claims will collapse if they’re not supported.
To carry that analogy a bit further, just as it doesn’t make sense to build a house without first considering the foundation, it doesn’t make sense to build a foundation without knowing what you’re going to build on it. For that reason, it doesn’t make sense to draft a provisional patent application without knowing what the claims are going to eventually look like.
If one does opt to file a provisional application there is likely going to be some degree of work duplication when, a year after the application is filed, a patent attorney has to refresh his memory on the subject matter of the application and then move to drafting claims. There are also going to be filing fees associated with the process that could be avoided by not first filing a provisional application.
Certainly there are reasons to file a provisional application, sometimes the initial few hundred dollar savings in filing fees demands the course. Other times there can be a looming statutory deadline that requires an application to go out the door before someone can sit down and draft a polished application. In other situations, it might make strategic sense to have a broad provisional on file for a year before deciding what aspect(s) of the invention should be patented. Whether a provisional application is the best route for you is something to discuss with your attorney, just don’t get attached to the idea, because odds are that it isn’t.
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