Bustos Law Firm

Archive for January, 2012|Monthly archive page

New Vaccination Requirement for Higher Education

In Texas Law on January 9, 2012 at 11:29 AM

The beginning of a new year always brings with it the beginning of new laws. One law that will have an impact on many people in Texas starting in January 2012 was actually already in effect as of May 27, 2011. The reason this law is now the topic of discussion even though it has been technically effective for over seven months is because the practical effect of the law will arise at the beginning of the 2012 spring academic semester. Starting this semester, all students entering into an institution of higher education must receive a bacterial meningitis vaccine.

Originally, this law, the Jamie Schanbaum Act, only applied to entering students who planned to move into on-campus housing, but after the death of a Texas A&M student caused by bacterial meningitis, the 82nd legislature amended the original law. The first law was passed after Jamie Schanbaum, a student at the University of Texas, lost both of her feet and several fingers due to bacterial meningitis. The amended law, S.B. 1107,  is now known as the Jamie Schanbaum and Nicolis Williams Act to honor the Texas A&M student who passed away in early 2011. Nicolis Williams’s death was significant not only because it was caused by bacterial meningitis, but also because he lived off campus. The original law only applied to those students living on campus, meaning it had no effect for students like Williams who lived off campus.

Under the new law, all entering students at an institution of higher education in Texas are required to receive a vaccine against bacterial meningitis within five years of attending the institution, and no later than ten days prior to attending classes. The exception to this blanket requirement applies to students who are only enrolled in online courses, or some other form of distance education courses, and also to those students who are thirty years of age or older. The law applies to transferring students as well as students who are continuing their higher education after a fall or spring semester off.

While this new law will help protect Texas’s young population from bacterial meningitis, not everyone is a supporter. One specific concern that has been raised by critics is that every incoming student will have to incur a cost in order to comply with this requirement. Vaccinations are not cheap, and the meningitis vaccine is no exception.

Additionally, the vaccination debate has heated considerably since the February 2011 Supreme Court decision Bruesewitz v. Wyeth, and this new law only adds fuel to that fire. In Bruesewitz, the Supreme Court decided that the parents of a child who was allegedly harmed by a vaccine could not bring suit against the vaccine manufacturer under state law, and could only raise complaints about the vaccine’s design within the no-fault compensation program that was created by the 1986 act that was at issue. This decision greatly insulates vaccine manufacturers from future possible tort liability.

The protection accorded to vaccine manufacturers mixed with the government mandate for individuals to undergo vaccination in order to attend an institution of higher education has given many Texans cause for concern. Whether these concerns will ever succeed in enacting change remains to be seen. For now, the law requires vaccinations for students of higher education in Texas, and the reason behind this law is to protect students and hopefully save some lives.

Great Composers Steal?

In Copyright Law, Entertainment Law on January 6, 2012 at 8:51 AM

Igor Stravinsky once said, “Good composers borrow (ideas from other composers)…great composers steal.”

Want proof? The musical score for The Beatles, “All You Need is Love,” contains melodies from several songs, including the song, “In the Mood,” by Joe Garland and Andy Razaf.

Speaking of The Beatles, George Harrison used the melody from the Chiffons’ hit, “He’s So Fine,” as the basis for his own hit single, “My Sweet Lord.”

Need more proof? Jazz musicians Charlie Parker, Dizzy Gillespie and Miles Davis composed such classics as, “Koko,” “Groovin’ High,” and “Donna Lee,” simply by utilizing the chord progressions to some of the more popular jazz tunes of their day. The new melodies were then constructed from the solos they played on top of those tunes. Charlie Parker’s 1945 bebop recording “Koko,” for instance, features the same harmonic progression as the 1938 Ray Noble jazz standard, “Cherokee.”

As to whether these songs were intentionally copied, or not…only the composer knows for sure. But, in my experience, as a musician and an attorney, most musicians aren’t even aware of the concept of musical plagiarism, a form of copyright infringement.

How Can I Protect My Original Music?

One way you as a musician can protect your original material from musical plagiarism is by the use of a copyright. Copyrights are federal laws that help ensure that no one, but you, can legally use your work without your permission.

There are a couple of requirements that need to be satisfied in order to copyright your work. One, the work has to be original, and two, it has to be fixed in any tangible medium of expression, such as musical notation written onto a manuscript, or a song recorded onto a multi-track recorder. A live performance of a song, for example, is not a tangible medium of expression protected by copyright; at least not until it is recorded.

Now, it’s important to note that there are two copyrights that exist in every music recording, the copyright in the composition, and the copyright in the recording. A composition is the musical notes, rhythms and lyrics of a song. A sound recording is the specific recording of a composition.

It’s also important to note that copyrights have a limited duration. And as such, once the term of the copyright has expired, the song enters the public domain – that is to say it is owned by the public, by everyone, and by no one at all. Thus, anyone is free to cover or sample it without the original creator’s permission.

Nonetheless, any new recording of a song in the public domain is copyrightable as a sound recording. For example, if you sit down at a piano and play, “Moonlight Sonata”, while recording your performance – that is your arrangement of that recording, and you own the rights in that unique recording.

Again, this is because Ludwig Van Beethoven has been dead much longer than 75 years, so his compositions have been in the public domain for quite some time, and thus anyone has the rights to record their own arrangement of “Moonlight Sonata.”

There have been a number of successful copyright infringement suits alleging so-called musical plagiarism. The earlier example of The Beatles’ “All You Need is Love,” that  allegedly contained melodies from songs by Joe Garland and Andy Razaf? Well, their composition “In the Mood,” that The Beatles tune was based on, was in the public domain. The problem, however, was that the arrangement by Glenn Miller of this song was not in the public domain. As a result, The Beatles’ publishing company, EMI, was forced to make a royalty payment to KPM publishing in 1967.

 And, those allegations that George Harrison plagiarized the Chiffons’ “He’s So Fine,” for use in the melody of his song, “My Sweet Lord?” Well, George Harrison ended up in a rather prolonged and expensive lawsuit beginning in 1971 that he eventually lost.

How Do I Register A Copyright of  My Original Music?

Placing a copyright symbol or notice on your music will not legally register the material. The only method for registering your copyright is through the U.S. Copyright Office.

In the United States, you can apply for a registered copyright through the U.S. Copyright Office. The registration process takes up to eight months to complete, and the registration forms can be found online at the U.S. Copyright Office Forms page. For your protection, copyright materials should always be sent to the U.S. Copyright Office via certified mail return receipt.

It’s important to remember that while your intellectual property is protected by copyright, even if you do not register it with the Office of Copyright, you can’t sue for copyright infringement without this registration. Thus, it is advisable to proceed with the registration process should you have any fear of your music being plagiarized.

How Can I Prove that Someone Stole My Original Music?

Suppose one day you hear a song on the radio that sounds A LOT like your original song!

If you choose to file a copyright infringement claim against this artist, the first thing you need to do is to establish that your song was made accessible to the artist you think plagiarized your song. Now, no matter how similar the two songs may in fact be, there simply is not a cause of action for copyright infringement if the second song was created independently. In other words,  you must prove that the alleged plagiarizer had an opportunity to hear your song first. Copyright infringement requires copying, and you can’t copy something you’ve never heard. Many copyright infringement cases fail on this basis alone.

Why? Because frequently the aggrieved composer simply has not released their song on a widespread commercial basis – other than perhaps at a few gigs, or their local radio station on one occasion. Under those circumstances, it is very difficult to establish that there ever was a reasonable opportunity for the defendant to have heard the song, which is what the law requires. And, while it may have been theoretically possible for the defendant to have heard your song, mere possibility that the defendant may have heard your song, or speculation that the defendant may have heard your song, is simply not enough to prevail in a copyright infringement case.

Nonetheless, if there was a reasonable opportunity for a potential defendant to have heard your  song, such as both musicians being on the same tour, the case can go forward – even if the defendant insists they didn’t actually ever hear your song. With our joint-touring example, the defendant would clearly have had a reasonable opportunity to have heard your song, even if the defendant asserts they never watched your band’s opening act gig.  In this instance, such a defense becomes a credibility question, and it will be left up to the jury to decide which side to believe.

Frequently, the client alleging plagiarism will have sent demos of their song to various record labels. In those cases, in order to prevail in court, one has to establish a channel of communication between the person who received the demo, and the creative team that made the record which is the subject of the alleged copyright infringement violation. Simply mailing something to the mailroom of a major label is not enough to establish access as to every subsequent record the label releases. The courts refer to this as bare corporate receipt, and it never succeeds in establishing access. Copyright infringement cases often fail on this basis alone as well.

If there is widespread dissemination of a song in the form of extensive airplay, access to the original song alleged to have been copied will be found to have been established as a matter of law. The George Harrison case over “He’s So Fine,” is a good example of this – there’s simply no way Harrison could have plausibly asserted that he had never heard the Chiffons’ record. And, this is ultimately why he lost that infamous copyright infringement case.

The bottom line on these copyright infringement cases is that many songs in various popular musical genres sound very much alike. The reason for this is that most musicians are writing within commonly used musical conventions. Thus, certain melodies and chord progressions, which may strike you as being rather unique, are actually fairly common upon further inspection and analysis. And, thus it is unlikely that another song with those same characteristics will be found to be infringing upon the original tune in question.

This is why, if you want to prevail in court, it’s not enough to have a song that is merely similar to your song. It has to be almost EXACTLY the same song, and for more than just a few notes, in order to prevail. And, once the court factors in the commonly used musical conventions, there rarely is an actionable claim for musical plagiarism or copyright infringement – no matter how much you think your song may sound like the latest Top 40 Hit Single.

Refining the Focus of Disability Discrimination

In Employment, Federal Law, Litigation on January 3, 2012 at 5:43 PM

Though persons with disabilities have constituted a protected class since the effective date of the Americans with Disabilities Act of 1990 (ADA), that class has been relatively small, due to the limitations the U.S. Supreme Court placed on the definition of “disability” under the act. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Court ruled that an impairment’s limitation on a life activity must be considered in light of any mitigation to that impairment. As a result, persons whom United Airlines would not hire as pilots because of impaired but corrected vision could not successfully sue under the ADA. In Toyota v. Williams, 534 U.S. 184 (2002), the Court stated that the standard in determining whether a condition qualified as a disability was “demanding.”

With the passage of the ADA Amendments Act of 2008 (ADAAA), these definitional limitations have been removed, and covered employers (those engaged in interstate commerce and having 15 or more workers), public entities, and places of public accommodation need to be careful now more than ever not to discriminate based on a person’s disability. Though the ADAAA does not change the words for the definition of disability—a physical or mental impairment that substantially limits a major life activity—it adds numerous measures broadening that definition (for the complete text of the Act, see http://www.law.georgetown.edu/archiveada/documents/S3406FinalEngrossed Version.pdf):

  • The ADAAA explicitly overturns the standards enunciated in Sutton and Toyota, stating, “The purposes of this Act are to reject” them.
  • The Act broadens the protected class “to the maximum extent permitted by the terms of this Act.”
  • It provides a non-exhaustive list of “major life activities,” including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
  • As part of “major life activities,” it also includes “the operation of a major bodily function,” which includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

These measures and others found in the ADAAA emphatically broaden the sweep of potential liability for discriminating against persons with disabilities by shifting the focus of the inquiry from whether an individual is disabled to whether discrimination occurred. As the case law begins to develop, employers and other covered entities should be aware that conditions held by federal courts not to constitute a disability under the ADA (such as epilepsy, HIV/AIDS, diabetes, cancer, vision in only one eye, and asthma) will (along with all other physical impairments) get a very strong second look by the same courts under the ADAAA. As a result, employers will need to defend disability discrimination lawsuits more on the merits, and cannot rely on early dismissal of such lawsuits in the future. Of course, such lawsuits can still be defeated by disproving discrimination.