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President Trump’s Partial Travel Ban Goes Into Effect: What You Need To Know

In Immigration, Uncategorized on July 17, 2017 at 3:13 PM

imagesPresident Trump seeks to place a 90-day ban on visas being issued to people from six, mainly Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on refugees entering the United States. Because of two nationwide federal court injunctions, President Trump’s previous two Executive Orders banning these individuals never went into effect. However, on June 26, 2017, the Supreme Court partially granted the government’s motion for a stay of the injunction by narrowing it so as not to apply to foreign nationals who have a credible claim to a “bona fide relationship” with a person or entity in the U.S; all other foreign nationals are subject to this most recent Executive Order (EO2). The Court, however, offered limited guidance on what qualifies as a “bona fide relationship.”

On June 28, 2017, the U.S. Department of State (DOS) provided further instructions on how the partial travel ban was to be enforced. Specifically, a bona fide relationship with a person was interpreted to be a “close family” relationship, defined as a parent, in-laws, spouse, child, adult child, son-in-law, daughter-in-law, and whole and half siblings. Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law were not deemed to be “close family” relationships.

However, on July 13, 2017, Judge Derrick Watson of the U.S. District Court for the District of Hawaii ruled that the State Department’s definition of “close family” was too limited, and that as a result, the Trump administration did not follow the Supreme Court’s instructions in enforcing the temporary travel ban. Accordingly, grandparents and other extended relatives are now exempt from the travel ban. Judge Watson also ruled that refugees who have a relationship with a refugee aid agency in the U.S. are also now exempt.

A bona-fide relationship also includes a foreign national who wishes to enter the U.S. to live with or visit a family member, a student at a U.S. university, an employee of a U.S. company, or a lecturer invited to speak at a University. A qualifying relationship with a U.S. entity requires a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose of evading the EO.” Individuals from the six previously mentioned countries that already have a valid visa on June 26, 2017 are also not affected by EO2. The ban also does not apply to Lawful Permanent Residents (“LPR”), Dual Nationals traveling on a non-banned passport, individuals traveling on an advance parole document or that have been granted asylum, as well as refugees already granted admission into the U.S.

Judge Watson had already enjoined two previous versions of the President’s travel ban from being enforced in response to a lawsuit by the state of Hawaii alleging the policy discriminates against Muslims. In his injunction, Judge Watson ruled that there was “significant and unrebutted evidence of religious animus” behind the ban. The Trump administration appealed his decision to the San Francisco-based Ninth U.S. Circuit Court of Appeals, which mostly upheld the injunction.  However, on July 14, 2017, U.S. Attorney General Jeff Sessions announced that the Trump administration will appeal the latest travel ban ruling to the U.S. Supreme Court, thereby bypassing the San Francisco-based appeals court that has ruled against it previously in the case.

On July 19th, the U.S. Supreme Court ruled that the Trump administration can still enforce the part of its travel ban that temporarily bans refugees from entering the U.S. However, Judge Watson’s Order on the expanded definition of close family ties was left intact by the Court.  As a result, grandparents, grandchildren, brothers-in-law, sisters-in-law, uncles, aunts, nieces, nephews and cousins of individuals living in the U.S are still exempt from the travel ban.  The Supreme Court will hear oral arguments on the travel ban in October after the justices return from their summer recess.

For further information on the travel ban please see the U.S. Department of Homeland Security’s FAQ page located at: https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states.

President Obama’s New Immigration Executive Order – Its Terms and Injunction Against It

In Uncategorized on February 24, 2015 at 11:31 AM

DHS-Logo

President Obama recently announced that he will take executive action to shield millions of illegal immigrants from deportation. While President Obama’s executive order will not grant illegal immigrants legal permanent residence (green cards) or citizenship, as only Congress can make that change with legislation, it may prevent up to 5 million immigrants from being deported.

Under this executive order, eligible immigrants will have the opportunity to request temporary relief from deportation if they file an application, and pass criminal and national security background checks and pay a fee. They will also be eligible for work authorization, and must also begin paying taxes.

Here are the some of the most important changes to the nation’s immigration system through this executive order that you need to be aware of.

1. It Removes the Age Cap for “Dreamers.”

Deferred Action for Childhood Arrivals (DACA), the group informally known as “Dreamers,” will be expanded under President Obama’s new executive order. This is the program that allows individuals who meet certain requirements to be deferred from deportation and allowed to work and travel in the U.S.

The current DACA rules require someone to be under the age of 31 on June 5, 2012. Also, eligability under the current DACA program is limited only to those individuals born after June 15, 1981. However, under the new executive order, this birthdate limitation has been lifted, and now anybody who was brought to the U.S. before the age of 16 will be able to apply for DACA as long as they meet the other requirements. The physical presence date has also been advanced to January 1, 2010, and applicants can now qualify for DACA if they were in the U.S. by that date, instead of June 15, 2007, under the current DACA rules.

DACA is also being expanded to three year increments. This change will apply to all first-time applications, as well as all applications for renewal, effective November 24, 2014. Work permits will be valid for three years now as well. USCIS is also considering extending previously issued two-year work permit renewals for the new three year period; however no decision has been made on this yet.

USCIS is advising that they expect these changes to take effect in late February of 2015.

2. It Shields Immigrants’ Parents from Deportation.

One of the biggest changes that will be made by the President’s executive order is the creation of a similar deferred action program for illegal immigrant parents of citizens or green-card holders. This protection will be available regardless of the age of the child. The Deferred Action for Parental Accountability (DAPA) will allow eligible parents to avoid deportation if they have been present in the U.S. since January 1, 2010, and have five years of total presence in the U.S.

Applicants must also not have a lawful immigration status on November 20, 2014, must have been present in the U.S. on November 20, 2014, and at the time of making the request for deferred action. Applicants will be subject to background checks and must not be in an enforcement priority category. Like DACA, deferred action will be granted for a period of three years. DAPA applications should start being accepted in late May of 2015.

Also, if someone is arrested by ICE, CBP or USCIS, they are to be identified as potentially eligible for DAPA, and officers are to seek administrative closure or termination of the case. DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed. The estimated population benefit will be 4.4 million under this new program.

3. Waivers.

In January of 2013, the U.S. Department of Homeland Security (DHS) published a regulation setting up a process to allow some people to file I-601A waivers for unlawful presence of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing a 3 or 10 year bar on returning to the U.S. The current rule only applies to spouses and children of U.S. citizens. However, the rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available, including spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.

It’s important to remember that USCIS is advising that these changes will not take effect until new guidelines and regulations are issued, and it has not provided a timeline for when these new guidelines and regulation are to be issued.

4. Recent Border Crossers will be a Priority for Deportation.

You must have been in the United States for at least five years to qualify for any of these new programs. These executive actions will not benefit immigrants who recently crossed the border, who may cross the border in the future, or who help those who cross in the future. It’s intended to only benefit immigrants who have been living in the United States for many years. By refocusing on border security, the President’s actions have increased the chances that anyone attempting to cross the border illegally now will be caught and then sent back to their home countries.

5. Enforcement Priorities.

Both the DACA and DAPA initiatives may not be available to those who have committed felonies or who have significant misdemeanors (such as DUIs or convictions for domestic violence) on their criminal record. Those eligible for DAPA and DACA must pass a background check, and those who have felony or significant misdemeanors on their record may be deported.

6. You will not be Able to Apply for Several Months.

USCIS will not begin accepting applications until early to mid-2015, depending on the program. But while the government is not accepting applications now, if you believe you are eligible for one or more of the initiatives, you can prepare now by gathering documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident (if applying on that basis), and that establish you have continuously lived in the United States for at least five years.

Once again, according to U.S. Citizenship and Immigration Services (USCIS), the changes made by the President’s executive order will not go into effect at least until 2015. Specifically:

• DACA changes are projected to take effect in late February 2015;

• DAPA applications should start being accepted in late May 2015; and

• USCIS is advising that the changes on I-601A waivers for unlawful presence will not take effect until new guidelines and regulations are issued, however it has not provided a timeline for when these new guidelines and regulation are to be issued.

7. Fraud.

As with other immigration requests, knowingly misrepresenting or failing to disclose facts will subject applicants to potential criminal prosecution or removal from the United States, so it is critical to provide truthful and accurate information and documentation. USCIS will carefully review each case and if you commit immigration fraud, you will not qualify for any benefits under the new executive order.

8. Be Aware of Scammers.

Once again, these changes have not yet been implemented, so beware of scammers offering to help submit these applications now. Instead, speak to a legitimate immigration attorney about what you can do while waiting for President Obama’s executive immigration order to take effect

9. Stay Informed.

Make sure you remain informed and know when the application process starts. As always, http://www.uscis.gov will be the authoritative source of information about eligibility and you can subscribe to get updates at http://www.uscis.gov/immigrationaction.

10. Legal Challenges to the Executive Order.

Members of Congress and 26 states, including Texas, have challenged President Obama’s executive order, claiming that his actions violate his constitutional duty to faithfully execute the current laws of the United States, and laws previously passed by Congress and prior Presidents, regarding immigration authority. In essence, they argue that President Obama does not have the legal authority to allow illegal immigrants the right to a work permit as only Congress can make that change in the law. They also argue that President Obama should not attempt to confer benefits upon immigration law breakers, and that he should actively enforce immigration law by deporting illegal immigrants eligible for deportation.

The Executive Order was successfully challenged in the United States District Court for the Southern District of Texas, and Judge Andrew Hanen in Texas v. United States issued an injunction against implementation of the Executive Order on February 16, 2015. The Obama Administration plans on appealing the injunction to the Fifth Circuit Court of Appeals. If that court affirms, it is easy to see how the Supreme Court may soon review the case.

Bob Dylan and Pink Floyd vs. The Machine: Artists and Record Labels Prepare to Do Battle Over Copyright Termination Rights.

In Uncategorized on December 17, 2012 at 4:59 PM

People have had 2013 circled on their calendar for a while now, and that’s because a battle is currently brewing in the music business that could  get quite ugly before it’s all over. On January 1, 2013, musicians who recorded hit songs in the late 1970s will once again have the right to reclaim ownership of those songs.  The book publishing industry, already reeling from competition by Amazon and  e-books, also  faces the loss of their back lists as authors begin using the Copyright Act to reclaim works they assigned years ago.

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Copyright Termination: A Powerful Tool

This powerful “re-valuation mechanism” found in the 1976 Copyright Act,  also known as “termination,” “recapture” rights or even “contract bumping,” gives authors and songwriters a second bite at the apple by allowing them and their heirs to break contracts 35 years after the fact.  This termination right trumps written agreements, even agreements which state that they last  in perpetuity.

And, while the world may not actually be ending in 2012, you could forgive some record labels and music publishers for feeling this way considering the very real possibility they may be losing ownership of some of the most massive-selling records that came out in 1978. Some of these records, by artists like the Eagles and Pink Floyd, have brought in untold millions, if not billions of dollars in revenue for labels over the last 35 years.

“In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers’ legal rights. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.”

Why Did Congress Create Copyright Termination Rights?

Congress created the copyright termination rights to allow authors and their heirs the opportunity to renegotiate their deals once the true value of the work became known; thus protecting authors of older works from having to live with a bad deal they entered into when they had little negotiating skills or leverage. This often overlooked, but powerful right, serves as an “insurance policy” for authors who initially signed away their rights for less than adequate compensation.

Termination rights are not a new idea, however, and have been the subject of famous court cases involving John Steinbeck, Lassie and Superman. The difference is that these older cases are based on a pre-1978 law that often required an author to exercise renewal rights which, in many cases, the author had signed away.

 What are the Potential Consequences to the Record Industry?

With the book and recording industry already reeling from plummeting sales, termination rights claims could be another serious financial blow. Music sales plunged to about $6.3 billion from $14.6 billion over the decade ending in 2009, in large part because of unauthorized downloading of music on the Internet, especially of new releases, which has left record labels disproportionately dependent on sales of older recordings in their catalogs.

“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth J. Abdo, a lawyer who leads a termination rights working group for the National Academy of Recording Arts and Sciences and has filed claims for some of his clients, who include Kool and the Gang. As a result, the three remaining record companies — Universal, Sony, and Warner — have made it clear that they will not relinquish recordings they consider their property without a fight.

Do Record Companies Have Any Defense Against Copyright Termination Lawsuits?

The record labels’ first line of defense in fighting back against termination notices has been to argue that the musician, whose songs are in dispute, made the “work for hire.” However, whether or not that designation can apply to sound recordings has never been legally resolved.

The record industry has also taken the position that sound recordings fall into two main categories of works that the law identifies as per se works for hire: compilations or contributions to collective works. Artists, however, maintain that neither of those categories apply to albums by most musicians and so a copyright termination suit may be needed to set precedent on this issue.

“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits that an employee typically expects.

And, so while artists would prefer a court ruling declaring that sound recordings can never be considered a “work for hire,” it will likely have to be resolved on a case-by-case basis.  Also,  work for hire cases can be so fact-specific that it is unlikely one decision will serve as precedent for all cases.

 Have There Been Any Copyright Termination Cases Filed Yet?

One of the first public challenges has already taken place in the United States District Court for the Southern District of California  in San Diego.  In  this instance, the artist won for a change. In January 2011, the Village People’s original lead singer, Victor Willis, filed his termination notices with respect to 33 musical compositions, including hit songs like “YMCA,” “In the Navy,” and “Go West.” On July 14, 2011, French music publisher Scorpio Music S.A, and its administrator in the United States, Can’t Stop Productions, Inc., filed suit challenging the validity of Willis’s terminations.

Scorpio argued Willis’s terminations were invalid because the works were joint works (meaning written by more than one author) and thus a termination was required by ALL the authors, not just one. Since a majority of the authors in the case of a joint work are required to file a termination, Scorpio argued Willis’s sole termination was not good enough. (Interestingly, Scorpio initially attempted to use the work-for-hire argument, but withdrew that claim for undisclosed reasons.)

In matters of litigation  – sometimes it comes down to a single fact; and in this case, it was the method of execution. Here, each author had executed his own transfer to his respective copyright interest as opposed to a single document, signed by all authors and transferring the total interest.

Hence, Scorpio posed a significant question for the court to answer: in a case where joint authors of a work transfer their respective copyright interests through separate agreements, can a single author terminate his separate grant of his copyright interest? . . . Or are a majority of the authors still necessary for a termination to be valid?

Willis, with the assistance of the Songwriter’s Guild of America, argued that he granted his copyright interests in the compositions separately from the other co-authors, and thus may unilaterally terminate them. The court agreed with Willis, and dismissed the case, while making it clear that Willis’s termination affects only the copyright interests transferred by Willis and does not affect the other co-authors’ interest in the joint work. However, this is the decision of just one court, and others, including the federal Ninth Circuit Court of Appeals, and possibly even the United States Supreme Court, may see it differently.

Should I Be in a Rush to File My Copyright Termination Notice?

In spite of this important case, it’s important to remember that this 35-year mark for copyright termination is less like a deadline than an opening bell.  The termination window lasts five years, so a copyright grant made in 1978 can be terminated any time between 2013 and 2018, giving artists who have not yet served a termination notice plenty of time to do so. With that much time in hand, it is unlikely that all, or even most, of the 1978 grants will be terminated in 2013. A gradual stream of increased termination activity is the more likely outcome.  Moreover, the copyright termination statute requires artists to notify the label two years in advance of their intent to terminate the rights, so labels have been aware since at least 2011 of any potential terminations next year, providing time to reach a new deal.

So, although termination rights give artists the potentially valuable ability to control distribution of their works — which labels will seek to curtail as much as possible — the cost of litigation and other factors, however, will mean a court battle over the issue may not arise for some time. Moreover, there are very few albums that are worth so much money where it even remotely makes sense to fight with the label. So any copyright termination disputes that lead to litigation will likely involve an album that is still selling well enough today for it to be worthwhile for the artist to invest in the legal cost of reclaiming it. But rest assured, if it’s valuable enough, there’s going to be an artist who will fight it.

In addition, it would likely have to be filed by an artist who is no longer releasing music, such as the former Village People singer, since anyone from the 1970s who is still popular today probably has enough pull to secure a new deal without going to court, and thus may not want to antagonize their label.

What’s the Bottom Line?

Book publishers, and the few record companies that are left, have been reluctant to discuss termination rights as they understandably want to deflect attention from the issue. However, that may not be possible anymore.  Nonetheless, there is so much uncertainty around how copyright termination for sound recordings will work in the near future, that disputes will likely be resolved without litigation whenever possible. So contrary to common opinion, I don’t think this copyright termination will create a massive upheaval in the industry………at least with respect to hugely popular works by artists such as Pink Floyd, The Eagles, Stephen King, Mario Puzo, etc.  However, it could end up realigning the revenue-sharing balance between record companies and the artists.  So if nothing else, even if most artists never actually reclaim the rights to their work, but simply use the threat of termination to leverage a better recording or book deal for themselves, the copyright termination provision will have served its purpose of improving the bargaining power of both musicians and authors

The aforementioned notwithstanding, it goes without saying, that any artist or author who has a valuable recording or book from the late 1970s should file a notice to reclaim those rights, and if nothing else, use that notice as a basis to negotiate a more lucrative record contract or book deal for themselves.

 

Record-Breaking Deportation Numbers Are “A Little Deceptive”

In Uncategorized on October 31, 2011 at 4:03 PM

President Obama has recently touted record-breaking deportations in advance of his bid to be re-elected in 2012. However, a close look at the facts shows these recently reported statistics are misleading.

The U.S. Immigration and Customs Enforcement announced last month that they deported nearly 400,000 undocumented immigrants in fiscal year 2011, setting a record for a third consecutive year under the Obama administration. Of the 396,906 illegal immigrants deported, 216,698 were convicted criminals, most of them having been convicted of various DUI offenses.

And, while these record-breaking deportation statistics play well with anti-immigrant groups, they are also politically problematic for the President, because removal (deportation) is an issue that affects almost all Latino households. The overwhelming majority of which are related to, or know someone who is, an immigrant caught up in the removal process.

Accordingly, in an effort to appease Latino voters, the President said in a recent Hispanic online roundtable discussion that: “The statistics are actually a little deceptive because what we’ve been doing is, with the stronger border enforcement, we’ve been apprehending folks at the borders and sending them back. That is counted as a deportation, even though they may have only been held for a day or 48 hours, sent back – that’s counted as a deportation.”

I am inclined to agree with the President that the numbers are “a little deceptive” as they give the impression that the Obama administration is enforcing immigration laws within U.S. borders more rigorously than they really are.

Case in point, the annual report from the Office of Immigration Statistics reveals that ICE is arresting far fewer people in the interior of the United States than ever before. The latest statistics show that in 2010, ICE arrested less than half the number of deportable aliens that they did in 2006, when they arrested 1.2 million deportable aliens.

In fact, arrest numbers of deportable aliens have been dropping for quite some time now. In 2006, the combined efforts of the Investigation Division and the Detention and Removal Division of ICE, resulted in 117,000 alien arrests. The arrest numbers dropped even lower in 2008 to 68,000, and the trend continued with 54,000 arrests in 2010.

And, while the President stated in a recent speech that his administration has “increased the removal of criminals by 70 percent,” ICE records reveal that many of those arrested throughout the year were deported under the Secure Communities Program, which was put into effect to target immigrants who have been convicted of serious crimes. But,  immigrants who have been apprehended for minor infractions, such as traffic violations, were also sent packing under this program.

Advocates for immigration overhaul have said that the administration, by placing all illegal immigrants in the same category for deportation, has failed to live up to its promise to only deport the “worst of the worst.” And, again, as removal (deportation) is an issue that affects almost all Latino households, these kind of statistics are not helpful in Obama’s efforts to bolster support among Hispanics as reflected in recent polls indicating shrinking support for the President among Latinos in key battleground states.

The executive director of the Center for Immigration Studies, Mark Krikorian, says the Obama administration is just “playing a double game,” meaning that they’re telling everyone what they want to hear. Immigration advocates are being told that enforcement efforts are focusing only on dangerous individuals, which really is not the case, and anti-immigration groups are being advised  of  record-breaking deportation numbers, which while impressive on the surface, don’t hold up under scrutiny when one examines the trend toward declining alien arrest numbers by ICE.

How Do You Tell a Member of Led Zeppelin He’s Wrong?

In Uncategorized on October 24, 2011 at 12:25 PM

Former Led Zeppelin bassist John Paul Jones thinks there aren’t any good band names left. In fact, he recently complained to the Wall Street Journal about how difficult it was to find a good name for his new band.

“Every other name is taken,” Jones said. “Think of a great band name and Google it, and you’ll find a French-Canadian jam band with a MySpace page.”

He’s wrong!

In my experience, truly inspired musicians have no problem whatsoever coming up with a great band name. And, while John Paul Jones may have been wrong about the shortage of great band names, he was right to put more than a cursory effort into coming up with a great name for his new band.

Why?

Because a killer band name helps to set expectations for your band, establishing your brand identity. It’s very often the very first thing the audience hears about you – before they’ve even heard your music. Therefore, it must be well-conceived, clever, and creative.

LARGER THAN LIFE is what you’re shooting for…

So How Do You Go About Choosing a Killer Band Name?

A good band name is unique and memorable. Internet searches should point directly to your band. And for that reason alone, these days, a generic word is typically a bad band name, because internet searches are going to lead fans to everything but your band.

And, while a killer band name won’t help if your music isn’t any good, it does potentially give you an opportunity to capture the attention of a future fan base – IF you play your cards right, IF you know how to leverage it, and IF you can actually back it up musically and artistically.

THINK LARGER THAN LIFE. Ideally, your band name should be dripping with je ne sais quoi. Band names like The Rolling Stones, Pink Floyd, and Sonic Dust™ come to mind.

I Came Up With a Killer Band Name, Now What?

From a legal standpoint, never underestimate the importance of obtaining a registration for your band’s name and logo with the United States Patent & Trademark Office. Trademark disputes usually hinge on which band first used a name commercially, and where—and the proof can be as simple as a band’s Facebook page.

Here are some clear cut steps you can take to help your band avoid trademark disputes:

1.  Trademark Your Band’s Name and Logo — If eligible, register your band’s name and logo with the United States Patent and Trademark Office (USPTO). This is evidence that you own the trademark that supports your band’s name and logo throughout the United States. Registration with the USPTO can also be used as a legal basis for obtaining international rights to your band’s name and logo.

2.  Register Internet Domain Names — Register your band’s name with the USPTO at the same time you capture desired internet domain names. This will help you avoid having to deal with unscrupulous domain grabbers who will demand large fees to sell you an internet domain that contains your band’s name.

3.  Watch Your Back — Once you have decided on a band name, it’s important to monitor the industry to make sure no one else tries to use your band’s name or logo. If you do find such an interloper, then you need to immediately send them a cease and desist letter, takedown notice, or similar letter challenging the unauthorized use of your band’s intellectual property. Failure to take these proactive measures can inadvertently dilute or cause abandonment of your trademark rights.

 4.  Lawyer Up —When all else fails, there are always legal remedies to protect your intellectual property.  In the event you believe your intellectual property rights have been violated, you may want to initiate a proceeding with the Trademark Trial Appeals Board (TTAB).

You have this option when: 1). Opposing a pending trademark application, and, 2). When you initiate a cancellation proceeding, which you should do in the event someone registers a confusingly similar trademark with the USPTO.

As a last resort, a federal lawsuit for trademark infringement is always an option, if you have a legitimate cause of action…but this can quickly get expensive.

Of course, if you can afford it, give serious consideration to hiring a qualified intellectual property attorney to file your trademark. Trademark applications may appear to be simple, but if you fill out your application incorrectly, you forfeit certain legal strategies that may be helpful in the event your trademark becomes the subject of litigation.

Still Can’t Think of a Great Band Name?

The aforementioned notwithstanding, I think musicians agonize over band names more than audiences ever do.

The audience just needs a brand identity to recognize you by. Remember, the main reason for creating a brand identity is to establish a consistent, uniform identity so that fans can remain loyal to your band, and feel part of something bigger then themselves…something larger than life.

So, if you can’t think of a killer band name, a bad band name won’t necessarily sink you. A lot of people thought, “The Beatles,” was a stupid band name. And, when you stop and think about it, it kind of is. But it didn’t seem to hurt them a bit, did it?

After all, whether a band name is considered “good,” or not, is largely determined by how successful your band ultimately is.

How Can My Band Find Success in the Music Industry?

In Entertainment Law, Uncategorized on September 23, 2011 at 4:18 PM

SHORT ANSWER:  Separate Your Band From the Online Clutter.

LONG ANSWER: Everyone’s fighting for our attention online. Yet many musicians believe that if they just spam enough random people online, they’ll somehow gain a large and loyal fan base. But, all you have to do is look at MySpace–a digital tumbleweed–to see that a million bands spamming each other will never be a goldmine.

It’s not good enough to just distribute your album on iTunes, set up a website with lots of bells and whistles, or even jump onboard the newest fad in the music business: Facebook’s Music Integration Platform.

Why? Because NO ONE will ever find you. The music business, now more than ever, is very crowded. Your band needs to rise above the clutter. And, while great songs are your foundation, brand identity will help drive your music home.

Case in point, everyone on the four corners of the earth recognizes the legendary album cover to Pink Floyd’s Dark Side of the Moon; it’s no coincidence it was Pink Floyd’s big break-through album. Sure, the music was killer, but the album cover helped drive Roger Water’s timeless lyrical and musical themes home with the listener. It helped sell the music, even during those rare times when it was not being blasted on the radio in all its quadraphonic glory.

Indeed, the iconic cover, depicting a ray of light split by a prism, was recently named the greatest album cover of all time in a recent poll of musicians and music fans. Will Groves of MusicRadar.com noted: “It’s proof that one simple, enduring image is the winning formula when it comes to album artwork.” And, while album artwork has become somewhat of an anachronism, the commercial and artistic success of Dark Side of the Moon continues to underscore the necessity of branding if you want to reach as many people as possible with your music.

The main reason for creating brand identity is to establish a consistent, uniform identity so that fans can remain loyal. They, like you, want to be a part of something bigger then themselves. Branding is the secret sauce to making this happen.

But it requires thought and planning. Focus on quality and appearance. Hire a graphic artist to select a distinguishing font for the band name, one that creates an indelible, even iconic, image for your band. Remember, you are responsible for your identity. Don’t sit back and wait for someone to discover you. Those days, like the album cover, are long over.

Of course, from a legal standpoint, a lot of thinking needs to be done before your band name is selected, or a logo is pressed onto hundreds of t-shirts. The world of branding revolves closely around trademark law. Never underestimate the importance of obtaining a registration for your brand with the United States Patent & Trademark Office. I will discuss the process of trademarking your band’s name and logo in my next entertainment law blog.

Don’t think branding matters? Think again. Just like with Pink Floyd’s Dark Side of the Moon, branding can help put your band over the top, but ONLY if the music is great. Thus, the real secret to making it in the music business today is focusing, first and foremost, on making quality music.

When someone finds something truly great today, they tell EVERYBODY they know. So at the end of the day, that’s how it’s done, that’s how you build an act, that’s how you build a brand….by focusing on making quality music that is so good it literally sells itself.

After all, it’s next to impossible to keep the attention of anyone (especially today’s ADD generation) with a mediocre product. Anything less than stellar is clutter in today’s musical landscape.

Be stellar…

The Bottom Line on the Latest ICE Memo on Prosecutorial Discretion

In Uncategorized on September 6, 2011 at 2:37 PM

There has been a lot of hoopla about the recent prosecutorial discretion Memos issued by ICE Secretary John Morton, as well as the White House announcements regarding the same on August 18, 2011.

Under the new initiative, some 300,000 immigration court cases will be reviewed. Low-priority cases may get dismissed, enabling the courts to focus on deporting the high priority – “criminal aliens.” All new incoming cases will be reviewed as well, with the possibility of low-profile cases not being filed with the immigration court at all. Some immigrants may even be eligible for work permits.

After this announcement, many immigrants, immigration attorneys, and immigration activists saw what they thought might be the proverbial light at the end of the tunnel. But, the fact of the matter is that Morton’s memo does not change the law in any way, shape, or form. It is simply considered a compilation of old Memos, with no chance of ever seeing the results it promises.

Why? Because what the Memo proposes is unworkable in the real world. To wit, viewing the situation from the perspective of a government bureaucrat, if there is no tangible incentive for ICE employees to apply this Memo, nothing will indeed change. And, by incentive, I mean getting rid of numbers as the only yardstick for measuring the effectiveness of ICE Officials. In the alternative, ICE should focus on engaging in smart law enforcement where its employees are rewarded for successful application of law enforcement priorities.

Those in charge of implementing this new initiative are career ICE prosecutors, deportation officers and administrators. Until now they have been promoted on the basis of how many folks they arrest, detain, and deport….and how fast. Being “bad guys” has been good for their careers.

Now, suddenly, they are being told to be “good guys?” If I am an ICE bureaucrat, my first question will be: “How will I be rewarded for moving a case from the ‘deport’ pile over to the ‘back burner’ pile?” Until that question is answered very clearly, little or nothing will change, and the policy will be seen as nothing more than a blatant election-cycle play for the Latino vote. For this to work, ICE bureaucrats will need to know they will be rewarded and protected if they take a DREAM Act-eligible student out of the deport queue.

In the words of an ICE official, “If you don’t give me a peg to hang my hat on, I’m going to be doing the same thing as before.” The Obama administration has not given its employees a real peg to hang their hat on, if you will. And, don’t expect one to come any time soon either. After all, the administration got the publicity it wanted, so who cares about the rest? Now it’s up to immigration attorneys to explain to numerous clients asking us about the new, “Obama law.” The Bottom Line: Nothing will change, there is no light at the end of the tunnel, and immigrants, now more than ever, need to watch out for unscrupulous characters who will undoubtedly take advantage of an already vulnerable population.

A Will’s Bare Necessities

In Legal, Texas Law, Uncategorized, Wills on August 30, 2011 at 10:14 AM

The normal goal for a person to have when writing a will is to ensure that all of his property and money are given to the right people after he dies. On the other hand, perhaps the central focus for an attorney drafting a will is to ensure that the will is written in such a way that it would be very difficult to contest. Both of these goals can be reached by following the statutory guidelines for will requirements and by applying common sense and skill to the drafting process.

In Texas, the Probate Code governs the probate process, including the requirements for a valid will. Section 57 describes who may execute a will, and section 59 details the requirements of the will. In order to execute a will, a person must have “legal capacity.” This means that either the testator (person leaving the will) is eighteen years or older, has been married, or is a member of the armed forces. The statute further requires that the testator has “testamentary capacity.” Testamentary capacity is more amorphous than legal capacity. The only language the statute offers to explain testamentary capacity is that the testator must be of “sound mind.” This term has been further defined by Texas case law with the pinnacle case being Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.). Essentially, testamentary capacity boils down to whether the testator has the ability to understand everything that he is doing in relation to leaving a will and the impact that act will have. A testator must also have “testamentary intent,” which simply requires that the testator intends for the document to be his will.

Other formal requirements are mandated by the statute. The will must be signed by the testator. If the will is attested, as opposed to holographic (entirely hand written by the testator), it must be signed by two witnesses who are older than fourteen. The witnesses must sign at the bottom of the will (subscribe) and must sign the will in the presence of the testator. These requirements seem very simple, yet they only provide the bare minimum of what a will must contain. A will that is valid, and therefore follows all of the statutory guidelines, is not necessarily uncontestable. Great care and skill are often required in drafting a contest–safe will. For further reading, see the Texas Probate Code (especially Chapter IV), accessible at http://law.justia.com/codes/texas/2005/pb.html.