#Devo Lawsuit Settlement over their #EnergyDomeHats

Newsflash from your Hollywood Attorney:

Pharrell Williams, call your lawyers. That oversized hat worn to the Grammys might be a legally protectable signature look.

Don't believe us?

Check out Devo, the New Wave band that hit it big with the 1980 smash "Whip It." The song was featured on the band's third album, Freedom of Choice, and on the album cover (pictured), Devo members wore funny-looking headgear they called "Energy Dome Hats."

Six years ago, there was a mini media frenzy upon word that Devo was suing McDonald's over a Happy Meal toy featuring a similar-looking hat. The furor quickly died when Devo's attorney shot down the news reports as false. There was no lawsuit.

Well, at least not until this past New Year's Eve when Devo filed a lawsuit in Indiana state court against T.V. Store Online, which advertises itself as a source for classic TV and movie shirts and memorabilia. Devo, along with its official licensee Swag Merchandising Inc., alleged that the defendant was retailing unlicensed "Energy Dome Hats."

On Friday, after the lawsuit was removed to federal court, the parties told a judge that a settlement had been reached.

Unfortunately, this means there won't be much clarity as to whether those funny-looking hats are the property of Devo, but we'll explore anyway.

In the lawsuit (read here), Devo alleged violations of trademark. The complaint mentions a pair of federal trademark registrations for "DEVO" in connection with "entertainment services" and "sound and visual recordings" but doesn't go into any specificity about why that protects "Energy Dome Hats."

Clare Neumann, an IP licensing executive at CMGWorldwide, who is providing counsel to the band, tells us the case could have argued that T.V. Store was infringing trade dress and common law trademarks in the way the defendant was confusing its customers about source of origin.

Perhaps a tad less tenuous, Devo was also asserting violations of the band's right of publicity.

Indiana's publicity rights statute (one of the most generous in the nation) protects a personality's name, voice, signature, photograph, gestures, mannerisms and, yes, distinctive appearance, from being used in connection with commercial merchandise.

Devo was a rock band consisting of members from Ohio, but thanks to local firms like CMG, Indiana has gone out of its way to extend statutory rights afar, "regardless of a personality's domicile, residence or citizenship," and it doesn't matter much whether the personality is living or dead.

Alas, a lawsuit in Indiana over Devo's Energy Dome Hats.

Neumann says the terms of the settlement are confidential and can only say that the parties are satisfied.

Source....  HRLAWSUIT

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Was 'Y.M.C.A.' Originally French?

In May, original Village People singer Victor Willis won a big victory by getting a judge to swat away an attempt from two music publishers that challenged his ability to terminate a copyright grant on hit songs, including the monster hit "Y.M.C.A.

Many other musicians including Journey, Devo and Billy Joel are attempting to similarly exploit a once obscure provision of the Copyright Act adopted in the late 1970s to allow authors to reclaim rights during a copyright term's late stage. Hence, Willis' battle with Scorpio Music and Can’t Stop Productions has been closely watched as one of the few termination fights in the music industry to end up in court so far.

But now that Willis has succeeded in getting a judge to declare that even though there were other authors on the songs, Willis could unilaterally terminate his copyright grant, there is still the dirty business of figuring out what that means: Exactly what is he entitled to receive?

Willis' claim on the songs isn't free of complications.

On 33 music compositions, there were several co-authors listed on copyright registrations. For "Y.M.C.A," there were three.

Willis claims that one of the co-authors, Henri Belolo, didn't contribute to the authorship or lyrics of 24 of the compositions. Willis says he's entitled to a 50 percent share.

But the publishers dispute this. They claim that between 1977 and 1979, they hired Willis to translate lyrics and create new lyrics on certain compositions that were owned and published in France by Scorpio. The agreement they had with Willis at the time entitled him to a 12-20 percent of Can't Stop's gross receipts and say that in the case of Willis being just one of three authors, he should only get a 33 percent share.

Willis' side estimates an estimated loss of $30 million from the claim that his iconic songs are adapted from original French songs.

This week, a judge had to decide whether or not to allow Willis to proceed on his counterclaim that Belolo wasn't a co-author, which would pave the way for Willis being able to recapture a 50 percent interest.

The ruling deals with the statute of limitations in a rather quirky way -- when the original copyright registrations were made three decades ago, Willis never objected. But Willis and the Songwriters Guild of America argued against the practicality of making authors litigate up front when they have neither the means nor incentive to challenge a copyright registration.

Read in full here... http://www.scribd.com/doc/128968119/Order-Denying-Motion-to-Dismiss-Counterclaims

On one hand, the judge isn't willing to waive the requirement that a songwriter file an objection in a timely fashion.

And although that might be unfair, the judge says "it is Congress's job, not this Court's, to amend the law" and that "policy arguments can also be made for avoiding the filing of lawsuits decades after the creation of work, when witnesses may be dead, documents lost, and memories faded."

So Willis had an obligation to file a lawsuit within three years of being on notice of a problem, but the next question is: Did he have such notice?

So the case goes forward without any firm ruling on the question of what will ultimately happen for Willis, but the opinion also serves as another signal that fights over termination are likely to be heavily litigated.

Willis remarks, "I will now have an opportunity to have all the facts come out which will establish the true American authorship of all my songs, and I can assure you there was no YMCA in France when I wrote the lyrics in 1978."

Read more... http://www.hollywoodreporter.com/thr-esq/odd-legal-question-du-jour-426365