Karaoke Forums

Looks like Florida, Georgia and Alabama has dumped PEP out on their ear as well.

PEP appealed a recent dismissal of their trademark/service mark lawsuit against a KJ and the 11th circuit has affirmed that dismissal. Here are a couple key excerpts:

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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D.C. Docket No. 8:16-cv-03361-JSM-JSS
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"To plead a valid claim for service mark infringement, Phoenix must allege that Burke uses the Sound Choice mark in the sale, distribution, or advertising of his services and that his use is likely to cause confusion. 15 U.S.C. § 1114(1)(a). And for unfair competition Phoenix must allege that Burke’s use is likely to cause confusion about an affiliation, connection, or association between Phoenix and Burke’s services or about the origin, sponsorship, or approval of his services by Phoenix. Id. §1125(a)(1). The only disputed issue under both claims is whether Phoenix has alleged facts that, if true, show a likelihood of consumer confusion. "
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"Because the display of individual tracks embedded with the Sound Choice mark is not likely to confuse consumers about Burke’s DJ services, the district court did not err by granting Burke’s motion to dismiss Phoenix’s claims."
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Booyah!

Link here-->: http://media.ca11.uscourts.gov/opinions/unpub/files/201713043.pdf

This is just stupid. what if the guy has $20,000,000.00 worth of Sound Choice music on hard drive and doesn't own any of the disks?

He should get some kind of fine. This just introduces a new area to kj for pirates.

"ATTENTION all PIRATES... Florida, Georgia and Alabama is now open for your kj'ing pleasure"

what should he get a fine for?
he did not break any laws.
fine him for "what if?"

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Paradigm Karaoke, The New Standard.......Shift Happens

Get real, Sound Choice music isn't worth that much, Stingray only paid $6,000,000 for the whole company in 2006 when they bought and paid for the rights that allow them to be the ones to sue at their discretion.

PEP has been suing over rights they don't own, that's why they are losing all of their appeals.

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KNOW THYSELF

Cousin Vinnie,
Please dont send an invitation to the Pirates!
I dont know about, Fla.& Ga. But down here in
my neck of the woods, we already suffer from,
an Overabundance of Lo Cash KJ Rustlers.

Ba-Da-Boom!

So the question to Vinnie is;
"What if PEP has been suing for rights that they don't own... because they sold them... to someone else for a big pile of money... a LONG time ago?"

Thanks to CHIP for keeping us updated!

By now, it should be abundantly CLEAR that an encoded MARK does NOT allow a plaintiff to state a claim upon which relief can be granted.

So as a first line of defense, anyone drawn into this folly should file a motion to dismiss due to Plaintiff's "Failure to State a Claim" and site this Appeals Court's decision in the matter.

LMMFAO

On the other hand, this does clearly present karaoke legalities as an example microcosm of what is seriously wrong in the USA as a whole right now.
Lack of enforcement of laws. Even if Stingray was suing, it might not be worth the trouble financially. Because of this reality and a lack of any enforcement in ALL aspects of life here, we have chaos. Too many people getting away with the It Cant Happen To Me mentality.
That's why pirates, drivers and scammers are running rampant.
Russia and China have the same enforcement problems.

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Purple Frog Karaoke Cuz we all feel odd and love to "croak"

That's not really the case. They do own the rights to the trademarks. It appears that what the courts have ruled is that their infringement charge does not fall under the auspices of the Lanham Act (trademark/service mark/trade dress), but that the illegal sale, copying and/or distribution falls under the Copyright Act (Title 17). If PEP is to levy charges for infringement, they must file their charges accordingly. There's also an issue I've yet to see be brought up in any of these cases and that is the concept of what is known as a "naked transfer". Seeing that I'm not a lawyer I could be wrong of course but my understanding of a "naked transfer" occurs when a mark is separated from its content. If my understanding is correct then I suspect that this may be the case if Sound Choice assigned all of its copyrights as part of the sale to Stingray. In any event in order for your statement to be correct PEP would have to be suing the alleged infringers for copyright infringement for copyrights which they assigned to Stingray (if that's the case). From what I can tell they have not alleged copyright infringement in any of their cases.


I don't think this case means a whole lot of anything. What's the current day colloquialism ... a "nothingburger"? I don't think this should have come as a big surprise to anyone, nor do I think that a lack of enforcement of laws is what's seriously wrong in the USA. If anything there are way too many friggin' laws, but that's a different conversation unsuitable for a karaoke forum. I do agree however that there should be a better method of defending one's copyrights that doesn't involve tens of thousands of dollars in legal fees that can't be recovered from indigent defendants. I wish I knew the answer but as a lover of freedom first and foremost, I would never want to see a potentially innocent person have to try to defend themselves in an infringement suit. Not only is it expensive, but it's also very disruptive and has the potential to be life altering.

Except as you said yourself, they weren't suing for copyright (because they don't own them -anymore) but they were suing for trademark and service mark under the Lanham Act. Which, no matter which way you want to look at it, requires that there be some sort of commerce and/or transaction. Like it or not, the courts do not see a KJ utilizing any manufacturer's product as any kind of transaction with the venue in which they work.



Suing venues who don't know, don't purchase and don't care about labels, are exactly the innocent person you speak of.

My take on this is that we can now media shift our discs without having to worry. SC can not sue for copyright because they do not OWN the copyrights to anything. They didn't write any of the music they released.

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I am the ONLY SANE 1 HERE

Bastiat, I agree there are too many laws that loop in circles and believe that is what causes the lack of enforcement.
What would seem logical, such as action against someone who has clearly stolen your product and is making profit from it ,
is actually difficult to do. This makes enforcement an expensive undertaking as I believe you well know.
This includes physical hardware as we just found out last week. Gotta go to civil court...huh?

I don't understand why SC couldn't sue for using the illegal product for monetary gain rather than trademark and media shifting.
I would think these KJ's relying on illegal product as a means of income is the same as stolen tools from Home Depot would be
used by a contractor. I guess karaoke itself is in a really odd place when it comes to legal matters.
EDIT: Actually Microsoft and Adobe have done just that....if you use it for work and you didn't buy it and we catch you,
the court kicks your financial butt! Isin't the media on a karaoke disk the same?

I thought it was possible to copyright a performance of someone else's work if you had performance rights from said artist. Your
performance/version is protected but the original artist owns the song and proceeds within the copyright based on the license.
I wrongfully assumed karaoke companies were protected this way as licensed performances.

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Purple Frog Karaoke Cuz we all feel odd and love to "croak"

it falls more to money than anything. if stopping it was a concern, KJBill would have been served along with dozens of others. he still sells with no repercussions all these years later.

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Paradigm Karaoke, The New Standard.......Shift Happens

I don't know about that. It's certainly not my understanding of the law. If there's consideration for the KJs services then that in and of itself is a transaction, and the use of illegally obtained content in the employment of that service is a contributory infringement. Seeing that copyright infringement is a "strict liability" it doesn't matter as to whether or not the venue is aware of the infringement.


If a venue doesn't know, then they should make it their business to know. Turning a blind eye to what could be obviously potential illegal activity is not what I would exactly call innocent. If you're in the business of selling cars wouldn't it be prudent on your part to verify that the car your about to purchase isn't stolen? I don't know about you but if I were a bar owner and I am looking to offer entertainment in my venue, I would first inquire as to what licenses that I would need to comply with the law, and what type if any legal liabilities accompany the entertainment types I plan on using in my venue. If you're a business owner and are too stupid to assess your legal exposures to everything in your business from clearing your sidewalks, to food safety and to entertainment liabilities then you don't deserve to be in business in the first place. Sorry but ignorance is no excuse.

In my area (Suncoast Florida/west side) all the Applebees stopped karaoke. In Sarasota the host/hosts were 100% illegal. When PEP went through the area in late 2017 they may have visited an Applebee's, and made them decide to give it up.

i see where you are going, but it is skipping a step.
what our life equates to would be a car dealer (venue owner) checking to see if Chevy (KJ) is using stolen window motors (music).

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Paradigm Karaoke, The New Standard.......Shift Happens

Do you ask the grocery store if the food you want to purchase is stolen?
Do you ask the bar if the beer and liquor is stolen? Or the furniture or fixtures?
Do you ask the restaurant if the health certificate they display is fake and ask them to somehow prove it's not?
Has any KJ asked you if the plastic used to make your karaoke discs and jewel cases was stolen?

Of course if you're a bar owner, you'll want to "first inquire as to what licenses that I would need to comply with the law, and what type if any legal liabilities accompany the entertainment types I plan on using in my venue." Sure, you'd like to know if you have to have a cabaret license (you will in Michigan) if you have a dance floor and by law, how large that floor is required to be in order to be legal. (25% of all floor space)

HOWEVER, that doesn't mean that you'll check into the licensing of the vendors that supply you with products and services. It's not your business to monitor the manufacturing process of the beer you sell. But I'll guarantee that if there was a brand of beer that people went crazy for, you'd want it in your bar and you'd never ask if the hops and barley -- or even the formula (intellectual property) -- used to make it were stolen.

The point is that business owners have a responsibility to make sure that the they are compliant with the law in their operations, not necessarily to monitor and verify every other license in the chain going backwards.

Should a bar owner ask the KJ to present their driver's license to make sure he can legally drive to the bar in the first place?

If this idea of only using music you paid for was extended to the DJ only group, there would be many more millions to sue for. Also, I purchase my trivia questions from 3 different sources. I have competitors in that business that just grab them off the internet. Am I at a financial disadvantage to them? Yes, do I care, no. None of them have shows even a third the size of my shows. It's all relative.

I think you're missing the point. I wasn't attempting to make an item for item comparison but merely trying to illustrate the point that a business owner has an obligation to see that the goods and services being provided by people they are doing business with are being conducted legally.

You seem to have a propensity to draw analogies that compare apples to oranges. You were asking that if I as a consumer, have an obligation to verify the legality of the food I purchase, or the beer I drink, etc. You are comparing the obligation (or lack thereof) of a CONSUMER to make a purchase, with the obligation of a BUSINESS to provide goods and/or services. You are comparing the activities of a buyer/consumer with the activities of a seller/business. Sorry but it doesn't fly, no cigar, go back to the end of the line. I don't think it's reasonable to expect a consumer to inquire as to the legality of the food or beer they purchase anymore than I think it's reasonable for a consumer to confirm the legality of the calcium pantothenate along with the several hundred other ingredients in their breakfast cereal. I mean Chip, are you really going to try to make that argument or is it just that you may have imbibed a bit too much on that craft beer that you referenced in your post before you wrote it?

The entire theme of your post including things like asking the KJ for his driver's license is a poor attempt at trying to trivialize the importance of a business owner's vicarious liability and obligation to ensure that the activities being conducted in his business are being conducted within the law. A bar owner can be vicariously liable but consumers cannot. A bar owner's vicarious liability even extends to acts of which the bar owner had no knowledge, that he had no intention to commit nor involvement in, and that he may in fact have expressly prohibited the KJ from engaging in. One of the premises of vicarious liability is the "deep pocket" theory. The theory being that the bar owner has deeper pockets than the KJ, meaning that it has the wherewithal to pay for injuries (usually through the advertising injury clause in their insurance policy) traceable one way or another to events it set in motion. There's also the issue of "Foreseeability" whereby a bar owner foresees or should foresee a potential problem based on similar events having already occurred elsewhere. If you were to think that none of this sounds fair I would happen to agree with you, but I didn't write the laws, they do however exist and you would be doing an extreme disservice to the venues that employ you if you try to convince them as to the otherwise.