Electronic Music and Music Business Commentary by Fate Sensation

The State of the Music Biz Nation

By Fate Sensation

Issue #09 (June/July 2007)

7-30-07

After teaching for almost 8 years at the Conservatory of Recording Arts & Sciences, Fate Sensation has returned to the business world. He will be taking a sabbatical from all things musical to focus on a new job. He thanks his colleagues and students for their many well wishes. Here are his two favorite recent news items...

Avril Lavigne Sued For Copyright Infringement

Avril Lavigne, skater girl and pop singer extraordinaire, was sued by songwriters James Gangwer and Tommy Dunbar who claim her song “Girlfriend” infringes on their song “I Wanna Be Your Boyfriend” which was originally released in 1979 by the power pop band, The Rubinoos.

After an intense listening session, Fate Sensation advises Avril to get out her checkbook. Those old guys in The Rubinoos probably deserve a nice retirement contribution.

To win a willful copyright infringement lawsuit, the plaintiff (the party who is suing) must prove three things: 1) that they own the stolen song, 2) the defendant (the party being sued) had access to it, and 3) the two songs are “substantially similar.”

Assuming the writers of “I Wanna Be Your Boyfriend” registered their copyright, they should have no problem proving ownership. They may have a tougher time proving access. Avril claims she never heard their song (she was born 5 years after its release). The Rubinoos might argue their song is still played on the radio, or was in a more recent movie or TV show, or perhaps Avril's co-writer, Lukasz Gottwald, had access to it. Regarding substantial similarity, see Fate Sensation's comment above.

Evel Knievel Sues Kanye West For Trademark Infringement

This lawsuit was filed a while ago but was recently back in the news when the parties announced they would use a mediator to attempt to resolve the case. Stuntman Evel Knievel sued Kanye West over the video for the song, “Touch the Sky,” in which Kanye parodies Evel's 1974 Snake River Canyon rocket jump. Pamela Anderson co-stars as Kanye's love interest. Evel claimed Kanye infringed on his trademarked image and the “vulgar and offensive” images depicted in the video damaged his reputation.

Fate Sensation applauds the parties' attempt to use a mediator to resolve this dispute. Why make all of the lawyers rich? Get everyone in a room, hire an independent, trained dispute resolution expert and work it out.

Evel Knievel is the owner of the federally registered trademark, “Evel Knievel.” His likeness, featuring his distinctive jumpsuit and belt, his name and the Snake River Canyon jump are undeniably famous. Kanye claims his depiction constitutes a “fair use” parody of a trademarked image and thus does not require permission and/or payment. A parody of a copyrighted work may qualify as a “fair use” if it makes a political statement, comments about a societal issue or critiques or satires the original. A parody of a trademark may also quality as “fair use” and is generally examined by courts on a more case-by-case basis.

As in Avril's case, after repeated viewing, Fate Sensation thinks Kanye should break out some bling and make Evel good.

Peace out!

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