Directly from SBI President on Karaoke Downloads
Chartbusterette said:
I'd disagree, but I'd also have to concede that, as a manufacturer, and with your position as the postulated tradesman, our respective positions are not necessarily neutral. In the absence of hard marketing data to support either position, let's agree to disagree.
As a manufacturer let's also take into account that you are not a privilaged participant in the workings of any particular venue or KJ, therefore those damages which you claim
you cannot calculate - may in fact be within the demonstrable ability of the defendent to accurately represent in their own defense.
also consider that the trademark appears at the beginning, at the end, and in newer cases during the instrumental breaks of the karaoke lyric wipe display. This constant exposure to the brand reinforces the impression, similar to the now-ubiquitous "bugs" that you see on your television screen that keep you informed of what channel you're watching. If that impression is negative due to poor sound quality, the damage is multiplied as a result of the heightened exposure.
First, you are incorrect about when and how your logo might appear. In my personal use, your logos make no such appearance because the start and end points are never displayed on our monitors, and instrumental screens are replaced by our own in house slides and advertising. We are professional DJs - trained to mix and overlay audio/video contents on the fly during playback. We do not waste valuable screen space providing free advertising for CB.
Second, this presumption about "quality" is grossly over-stepping your rights. Users can not be held legally laible for the quality of how your product is presented in it's use - there is no such grounds. You can not sue a KJ or DJ for damages because he prefers to present or use a distorted version of your audio and/or video product. A interpreted performance is
not a derivative work and not legally actionable as infrigement of the mark if no such mark has been publicy attached.
"Distortions" are exactly what as DJs we are hired to do. We mix, edit, flange, sample, scratch, echoe, distort, and other wise transform pre-recorded works into new live performances. Your karaoke product does not escape this reality of the club world - it is by definition an "accompaniment track" designed to be used as a building block to
someone else's vocal or musical presentation. There is no legal requirement that your interpretation of the music or video be preserved in the performance.
If you want to prosecute for piracy then piracy is what you must demonstrate - not some ancillary instance of the audio not being up to snuff. If you want to prosecute for
trademark then
infringement of the mark is what you must demonstrate - not a complaint that KJs aren't in sync with your marketing dept.
In addition, the Chartbuster brand reaches beyond the karaoke show market. We sell tracks to television shows, movies, game publishers, webs sites, and many more outlets. I would put forth the argument that infringing performances that damage the brand could hurt Chartbuster in ways that extend beyond the impressions of that night's generic karaoke crowd. Who knows who was in the audience on a particular night who might hold the purse strings on expenditures for, say, the next rhythm game, or who does does the track acquisition for a movie studio? (This also relates directly to my point below about actual damages.)
Again, you must demostrate an
actual infringement of the mark itself - not simply a
dissaproval of the performance quality.
In short, I'm unconvinced that "substantial public exposure" comes into play here. How many CB songs were played, on how many nights, for how many customers, for how many months or years? Multiply each of those instances by three and I don't think the damages phase is going to be hugely affected, and is far from a moot point.
You just said you can't calculate this yet, here you are providing a formula for doing so?
But media-shifting alone isn't an infringing activity (per Betamax). Judges have indeed reduced jury awards, citing a lack of relevance to actual damages (RIAA v. Thomas-Rassert), but I'm not arguing against that point at all.
Yet, the
"use of a computer" has been and still remains the evidentiary basis in these law suits. So while you may not want to argue that point - the DJ community can see very clearly that you are attacking that point quite specifically.
I'm saying that proving actual damages in a case such as the one stipulated are darned near impossible. Collecting actual damages requires proving actual damages.
A judge may decide that the minimum statutory damages apply in any particular case, or they may decide that the maximum applies, or anywhere in between. But remember, if a highly-motivated plaintiff can't provide a provable number relating to actual damages, how much less can a judge? And in that light, is a judge more likely to recognize their own inability to relate such a number to statutory damages, or less so? In both the spirit and the letter of the law, statutory damages aren't a "technical lottery ticket" as you cite above, they are a protection to the plaintiff in cases where actual damages are impossible to prove or calculate. Such difficulty applies equally to the court as to the plaintiff.
You have completely ignored the defendent who is equally capable of entering evidence relevent to any claim for damages. As much as you claim you can not "prove" actual damages - the defendent on the other hand, may be perfectly prepared to "disprove" them.
