What’s in the IP news this week?
Shannon Stephenson September 18, 2020 Kingston Jamaica.
Highlight:
“What a Bam Bam!” The music world was taken by surprise by the shocking passing of the larger than life singer, songwriter and musician Frederick ‘Toots” Hibbert on September 11, 2020. The performer who was born in 1942 gave his audiences sweet deliveries of songs like What a Bam Bam, Sweet and Dandy, Pressure Drop, 5446 Thats my number, True Love, Monkey Man and Country Road Take me Home. CNW reported on August 26, 2020 that the artist was actively seeking royalties for his heavily sampled hit song What a Bam Bam. Up to the time of the report the 77 year old had reportedly never recieved any royalties for the song. “Not a cent…I am the writer, arranger, composer, singer and producer of the original song”, he said. The reports surrounding this issue does not speak to a licencing deal being struck or any formal arrangement to the artist’s benefit. Hibberts’ Bam Bam inspired another Jamaican performer, Sister Nancy, who went on to record her own version of the song in 1982, produced by Winston Riley. The song gained worldwide notority and was later featured in the soundtrack of the 1998 film “Belly”. Other derivative works include: American Lauryn Hill’s interpolated features from “Bam Bam” in her own song, “Lost Ones,” from the 1998 album, The Miseducation of Lauryn Hill. Another well known sample is in Kanye West’s 2016 song featuring Rihanna on the “Famous” from The Life of Pablo. Beyoncé also used a sample of “Bam Bam” interpolated with her live performance of “Hold Up” from her 2016 album Lemonade. Following that Jay-Z sampled the song in “Bam” from the 2017 album 4:44.
Toots was a recent finalist in the annual Festival Song Competition and released an album on August 28, 2020 ‘Got to be Tough’produced by Trojan Jamaica/BMG records. His estate stands to benefit from increased record sales, however, this underscores the need for music practitioners, specifically recording artistes, to understand the business of music so as to make informed decisions regarding their inellectual property assets. Outsourcing this type of service may see many more artistes benefiting longterm from their works. Remember you don’t need to know everything just “Give it to me… one time!”.
IP COURT:
Court decides that sampling is fair-use. In a US Supreme Court ruling, delivered September 17, 2020, Judge Virginia A. Phillips cited the fair-use doctrine as the basis for dismissing the claim against recording artist Nicki Minaj. The legal dispute arose in 2018 where Tacy Chapman filed suit against Minaj for alleged copyright infringment. Minaj’s unreleased song ‘Sorry’ which samples Chapman’s song ‘Baby Can I Hold You’. “Artists usually experiment with work before seeking licenses from right holders and right holders typically ask to see a copy of the proposed work before approving the licence.” Judge Phillips explained. “A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.” She added. However Chapman’s legal team is still awaiting the court’s determination on the happenings leading up to yesterday’s decision. Nicky Minaj had previously made a public appeal for permission to use a song from Chapman’s album ‘Queen’, however, no agreement was reached. Funkmaster Flex on Hot 97 Radio Station in New York played ‘Sorry’ on the radio in August 2018. The court is yet to make a determination as to whether or not Minaj breached Chapman’s rights by distributing the song for airplay. Do you think Minaj should be sorry?
AMessi win, but a win nonetheless. The European court of Justice (ECJ) dismissed an appeal brought by a Spanish Cycling Company, Massi and the European Intellectual Poperty Office (EUIPO) against Argentinian Professional Footballer Lionel Messi who currently plays for Barcelona. In 2011 Messi applied to use his surname as a sportswear brand. Massi brought suit claiming that the similarity between their brand would cause confusion.The ECJ said that the star’s reputation should be taken into account when weighing up whether the public would be able to tell the difference between the two brands. The court determined that the footballer was too well known for confusion to arise before upholding the EU’s General Court 2018 decision.
French open! Pharmaceutical giant Eli Lilly’s Pemetrexed Patent wins again this week after a French court banned Fresinus Kabi from selling a competing pemetrex product in France. Eli Lilly is also enjoying previous success in Germany and Netherlands. Pemetrexed is also known under the brand names Alimta and Pemfexy. The ruling has illustrated Eli Lilly’s exclusivity in the French market along with an award for 28,000,000 Euros on their behalf.
Redemption for Red Dead makers. Take Two Interactive Software Inc, the publisher’s of the popular Red Dead Redemption video game series, successfully secured an injunction preventing a developer from inventing console versions of the games in the franchise. This would give the company a chance to improve graphics and gameplay. Red Dead Redemption since released, has been available through release for the Sony platform for Playstaion 4 and PC . The developer, Johnathan Wyckoff undertook ‘Red Dead Redemption’: Damned Enhancement Project as an attempt to bring the title to PC. Take Two did not agree. In their response they argued that allowing the development to continue would “dramatically change the content of Take-Two’s video games.”
Bad faith causes cancellation of the anonymous UK street artist’s previously registered trademark. Pest Control Office Limited, Banksy’s authentication body, successfully registered a trademark. However, upon closer investigation the court found that, Banksy opened storefront called Gross Domestic Product. This was a window that offered items for sale but did not sell them in person. Some of the items were available online. The EUIPO said “ It is clear that when the proprietor filed the EUTM he did not have any intention of using the sign to commercialise goods or offer services. The use, which was only only made after the initiation of the present proceedings, was identified as use to circumvent the requirements of trademark law and thus there was not intention to genuinely use the sign as a mark”.
Guangzhou Intellectual Property Court has upheld an earlier ruling in Mitsubishi Electric’s favour regarding infringement of the company’s trademarks by Guangzhou Lingye Automation Equipment, Guangzhou Longyan Automation Technology, Guangzhou Ouye Automation Technology and their owners located in Guangzhou, Guangdong Province, China.
The defendants manufactured and sold a large quantity of dead copy products, including PLCs, AC servos, inverters and other factory-automation equipment bearing counterfeit Mitsubishi trademarks, beginning in around 2012. The defendants were convicted of illegally manufacturing and selling these products in May 2016, after which Mitsubishi Electric sued the defendants for trademark infringement and won the case. See fully story here: www.MitsubishiElectric.com/news/.
For staying with me till the end here’s another story you might enjoy reading re : Huawei, ZTE loses appeal in UK Supreme Court . https://www.washingtonpost.com/world/europe/huawei-zte-lose-patent-appeal-cases-at-uk-supreme-court/2020/08/26/c0e2c98e-e7d0-11ea-bf44-0d31c85838a5_story.html
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