Friday, January 18, 2013

E-Commerce Times Interview With New York Media Attorney John J. Tormey III, Esq. - Massive Hammer Falls On Megaupload

E-Commerce Times Interview With
New YorkMedia Attorney John J. Tormey III, Esq. -
Massive Hammer Falls on Megaupload
By Rachelle Dragani
E-Commerce Times
01/20/12 10:52 AM PT

Megaupload has been shut down by the U.S. Department of Justice, which also arrested several of the site's top executives. The Hong Kong-based file-hosting site was a haven for copyrighted material, according to authorities. The D.O.J. also seized millions of dollars in assets belonging to the business and its managers.

The U.S. Department of Justice on Thursday shuttered Megaupload, a popular file-sharing website, charging seven of its executives with engaging in an international criminal enterprise based on copyright infringement.

Federal authorities called it one of the largest criminal copyright cases in U.S. history. Megaupload, its movie streaming site Megavideo, and its various sister sites were down at the time of publication.

Four of the seven execs charged are now in federal custody, including the site's founder Kim Dotcom (formerly Kim Schmitz). He and Finn Batato, Mathias Ortmann and Bram van der Kolk were arrested in New Zealand Thursday after authorities obtained about 20 search warrants around the U.S., New Zealandand seven other countries. Each of the seven accused, including the three others that remain at large, are charged with five counts of copyright infringement and conspiracy. If convicted, they could face 20 years behind bars.

They will be held at least until Monday, when there is a second hearing scheduled.

Mega Indictment

Megaupload and its corresponding sites had generated US$175 million worth of illegal proceeds, according to the D.O.J., and the losses to copyright owners added up to more than $500 million. Kim Dotcom pulled in $42 million from the site in the past year, according to authorities.

The indictment, issued by a grand jury in Virginia, details some of the reasons the D.O.J. targeted Megaupload. It claims that the site facilitated the trading of some movies even before their theatrical releases, that the site ignored removal notices from rights holders, and that the site's executives were laundering money through a Megaupload rewards program that paid users to upload certain content.

In addition to the arrests, authorities also reportedly seized artwork, electronics, guns and millions in cash from the New Zealand home. Several luxury cars, including a Rolls-Royce Phantom Drophead Coupe and a pink 1959 Cadillac were also seized. As part of the other search warrants, servers, domain names and about $50 million in assets were seized.

The site will now be run by Kaseem Dean, also known as "Swizz Beatz", who is the CEO of the site but wasn't named in the case. His partnership with the site became more well-known last month when Megaupload released "The Mega Song", which featured heavy-hitting entertainment figures such as Kanye West, and Kim Kardashian voicing their support for the site despite its allegedly pirated material.

Some of Megaupload's fans appear to be retaliating. Late Thursday afternoon, websites for the D.O.J., Universal Music Group, the MPAA and the RIAA were down, with the hacker community Anonymous claiming credit.

Representatives from neither the D.O.J. nor Megaupload responded to our requests for comment.

What's Up Next?

The arrests could be the beginning of a lengthy legal battle will likely ensue.

"The New Zealand authorities who arrested the Megaupload folks yesterday have promised cooperation with extradition to the U.S.", [one commentator] told the E-Commerce Times. "There will be lots of legal wrangling and motions to dismiss, to exclude certain items of evidence. Then, probably many months from now, the trial will be held, unless the parties agree to a plea bargain. Whether the defendants will be released on bail is anyone's guess".

For most of that time, the site will probably remain shuttered, and the legal plausibility of re-opening under a different domain name, one that's untouchable by U.S.regulations, is slim.

"At least in the U.S., it's likely that the shutdown of access to the site will continue. I can't say what will happen in other countries, but I'd guess that some of those who are signatory to the Berne Convention [international copyright treaty] will honor the U.S.takedown. It is certainly possible that the site could re-emerge under another domain controlled by another country, but the U.S. Courts could order U.S.-based DNS Service providers to block access there too", said [one commentator].

Concerned over the international nature of the case, several privacy protection advocates, such as the Electronic Frontier Foundation, have condemned the arrest procedure that wound up placing German and Danish citizens residing in New Zealand in the custody of U.S.authorities.

Since the indictment was issued to protect the rights of U.S. copyright holders, however, authorities could obtain worldwide search warrants.

"We're in a world economy now", entertainment lawyer John J. Tormey III told the E-Commerce Times. "Our federal government knows how to pursue, and in some cases take possession of, off-shore assets and off-shore people. The feds may be thwarted trying to reach someone in North Korea, but my bet is that they can reach someone in New Zealand".

Another Privacy Battle

The arrests and seizures occurred in the midst of another federal copyright infringement battle: the fight over the Stop Online Piracy Act, or SOPA. The bill would strengthen the powers of authorities and rights holders to crack down on sites -- even foreign ones -- that are suspected of trafficking in copyrighted content. The bill's opponents say SOPA is too broad, however, and could hurt sites that aren't engaging in illegal activity at all.

The arrests came the day after some of the Web's most popular sites such as Wikipedia and Reddit blacked out to raise awareness of SOPA.

After the arrests on Thursday, the authorities involved said the two cases were not related.

"The timing is ironic, but the investigation has been going on for quite some time. Also, indictments don't usually happen on short notice. I suspect the FBI and U.S. Attorney's office have been planning this for months. But they may have timed the arrests and shutdown of the site to capitalize on the publicity connected to yesterday's site blackouts", said [one commentator].

In zeroing in on Megaupload, the D.O.J. targeted a site with more than 150 million registered users and about 50 million daily hits. In addition, the site has the support of some big names in the entertainment industry, somewhat of a rarity for such an enterprise.

"The infringers just had a real long drink at the trough. A real long swing on the pendulum - now, we're seeing the pendulum swing back", said Tormey. "It's OK to start a new business. It's not OK to start a new business and pretend that the federal law governing the business does not exist. Pretending that the U.S. Copyright Act does not exist will probably turn out to be an extensive and expensive strategic mistake for the Napsters of our day".

Thursday, January 17, 2013

AM New York Interview With New York Entertainment Lawyer John J. Tormey III, Esq., Regarding The Julie Taymor 'Spider-Man' Litigation

Julie Taymor Sues Broadway's 'Spider-Man' For $1 Million -
AM New York InterviewWith New York Entertainment Lawyer John J. Tormey III, Esq.

By Tim Herrera

Spider-Man's new nemesis is a million-dollar lawsuit.

Julie Taymor, the booted director of "Spider-Man: Turn off the Dark", sued the show's producers Tuesday for at least $1 million plus royalties for using her work after she was fired, the suit alleges.

The producers "have continued to promote, use, change and revise Taymor's work ... without her approval or authorization and in violation of their agreements with Taymor", according to the lawsuit, filed yesterday in New York federal court.

Taymor's attorney, Charles Spada, said the suit was filed as a last resort "to protect her rights".

"The producers have failed to compensate Ms. Taymor for their continued use of her work to date, despite the fact that the show has consistently played to capacity or near-capacity houses", Spada told, which first reported the lawsuit.

The show has faced an onslaught of troubles since it went into previews in November 2010, including repeated, highly publicized actor injuries, a tsunami of negative reviews and delay after delay.

Still, it has managed to fill seats, raking in around $1 million per week, but because of extremely high production costs, money reportedly remains very tight.

The suit was filed just a week after the Tony Awards ruled that only Taymor would be eligible for the award in the best direction of a musical category.

Taymor co-wrote the book for "Spider-Man" and is largely seen as the driving force behind the original show, which at $75 million is Broadway's most expensive ever. She was replaced in March with Philip William McKinley, who revamped the show.

In June, she filed for arbitration through the Stage Directors and Choreographers Society, arguing the show owed her at least $300,000 in royalties. The case is ongoing.

"You can understand how someone who's a high-profile talent would believe it’s unfair if her work were used without her continuing attachment to project”, said New Yorkentertainment lawyer John J. Tormey III.

He added: "However, it is possible that that some of [Taymor's] motivation is not economic."

The show didn't immediately have comment.


It's been nearly 10 years since Broadway's "Spider-Man" was first announced. Here are some of the high- and low-lights.

2002: Show is first announced by Marvel
November 2010: The show opens in previews with a January 2011 opening night scheduled
December 2010: Actor Christopher Tierney severely injured during a preview
March 2010: Julie Taymor booted
April 2010: The show goes on hiatus for three months
June 2010: Opening night

Follow reporter Tim Herrera on Twitter: @tim_herrera

Interview With New York Entertainment Lawyer John J. Tormey III, Esq., by Lea Johnson of EA Media

Below-printed is an interview with New York entertainment lawyer John J. Tormey III, Esq., by Lea Johnson of EA Media. EA Media Live is a social media website established to inform new artists about the entertainment industry. The interview also appears at:
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Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY  10128  USA
1-212-410-4142 (phone)
1-212-410-2380 (fax)
[Attorney Advertisement]

[Please Note: No legal advice is being given in this interview. Any need for individualized legal advice should be discussed with your own counsel].

1. When did you start in the entertainment business as a lawyer?

I was a rock musician who graduated from Harvard and then went to law school.

I started work as a litigation associate on September 14, 1987, with the law firm of Pryor Cashman Sherman & Flynn in New York City. I was admitted to the Bar in New York, and California, in 1988, and in The District of Columbia in 1989.

My transition to entertainment transactional legal work began when I accepted a post as Counsel to The Walt Disney Company in 1990:

Thereafter I started a tour of duty as Senior Counsel and Senior Litigation Counsel to Miramax Films in 1994.

I founded my own law practice after I left Miramax in 1996. I have maintained my own law practice for over 15 years, and I have been in the practice of law for over 25 years:

As far as being in the entertainment business generally, that started when I was a young child in the 1960's. I grew up on tour with my folks - Dad, an actor and a dancer - Mom, an actress and a model. My father continues his career as a film and TV actor in New York City, and my mother is his biggest fan. My own artistic pursuit was as a musician in the 1970's, 1980's and 1990's. None of the above are easy pursuits in the entertainment business.

2. To potentially become a client of your firm, what do you look for in an artist?

It's probably more important to ask what the prospective client looks for in the lawyer - with background, experience, and accessibility being some of the foremost concerns. The prospective client should also make sure that the lawyer has an "AV" rating with the Martindale-Hubbell Lawyer's Directory:
and should make sure that the lawyer has no past history of public professional discipline in the state or states within which the lawyer practices.

As for what I am looking for at the outset, the prospective client has to have an actual and specific need - that is, one or more specific tasks in mind, appropriate for the lawyer to handle. The artists with whom I work, by the way, are not only musicians. I also handle film, television, publishing, Internet, modeling, photography, dance, performance art, fine art, and various other types of artistic and media matters.

Incoming inquiries to an entertainment lawyer generally cluster within three different categories: (A) transactional work, (B) "project placement" work, or (C) litigation.

(A): Transactional work usually entails an artist who has been offered a proposed contract. The lawyer's tasks in that case would therefore likely include advice and counsel, document review, drafting, editing, negotiation, communications to third-parties, and ideally, closure of the agreement. That said, some of those proposed agreements close, and others sometimes do not.

(B): "Project placement" work describes endeavors to place material with professional entertainment industry recipients. Record labels and publishers, for example, often require that submissions of material be made through an entertainment lawyer representing the artist.

(C): Litigation basically means a lawsuit, an arbitration, or some other legal process. Oftentimes adverse matters can be resolved short of formal proceedings, though.

When you ask me what I look for in an artist so as to become a client, I assume that you are referring to (B) - music project placement work. In this respect, I need to hear the music intended to be submitted to the label or other professional third-party music industry recipient. I need to see how it is packaged. I need to be assured that the material is viable. I need to be sure that it is material to which I can attach my name and the name of my law practice. As an officer of the court and a member of the Bar, I have to be careful that the material is neither violative of laws nor likely to offend its intended recipients. All that said, my threshold reaction to the material can't be interpreted as an indication of what the market itself may later do with the same material. It is difficult for any artist to place a "spec" project with any professional industry recipient, even when the artist seeks to do so through counsel.

3. What are the responsibilities of an entertainment lawyer?

Please see my answer to the question immediately above.

The responsibilities of an entertainment lawyer, are the responsibilities of any lawyer. We are licensed by the state or commonwealth in which we practice. Each jurisdiction has a strict set of laws governing the conduct of lawyers that practice within it.

There are many rules to which the lawyer must adhere. The rules include maintaining the strict confidentiality of client communications, and serving as the client's zealous advocate in a manner unaffected by any outside interests, are among them. In other words, some of the main responsibilities are loyalty, and care.

4. What methods or steps should a musical artist or writer follow or take to protect their project from copyright infringement?

To some degree it depends upon the type of material, and the content of that material. There is no "one-size-fits-all" solution - no cookie-cutter solution. You have to study the material first, to really know.

Though it will sound pedestrian to some, the first thing that should happen, is that the artist should actually complete the work - including its labeling and packaging in the form as it is intended to go out. Protecting an inchoate fuzzy set is much more difficult than protecting a fully-articulated item.

Next, ignore any notion that the "poor man's copyright" is a smart thing to do, or rely upon. It's not. Self-mailing one's work should be considered about as contemporary as Adlai Stevenson, or the first production-run of Milton Bradley's "Twister".

Next, consider that a plaintiff is normally prevented from bringing an action against a defendant in a United States federal court litigation for copyright infringement, unless the work is first filed, or "registered", with the U.S. Copyright Office. See:

Next, consider that the two main things a plaintiff in the United States must prove as against a defendant in a federal court litigation for copyright infringement, are: (A) "access" and (B) "substantial similarity". Therefore, keeping a perfect written access log reflecting the identities of all who receive or view the work, is critical - as well as keeping a perfect written record of who saw which draft of it, when. You would be shocked at how many people fail to do that. That failure alone could lose a plaintiff an otherwise-winning infringement lawsuit.

The intellectual property laws are derived from the real property laws. Artists should consider themselves akin to goldpanners in the Wild West years. Normally a goldpanner would stake a claim to a property by putting a fence around it, and perhaps by putting a few signs up on the perimeter, in addition. The copyright equivalent in the modern day would be putting a textual copyright notice on your work, thereby warning others not to poach it. The goldpanner might also file a claim to the property down the road with the county recorder of deeds. In this respect, I think of the U.S. Copyright Office as akin to a county recorder of deeds - a place where you can stake your claim and put it on the public record, thereby warning others to not trespass on what you believe to be your property.

Naturally there is a lot more to it, than the above. The above is a good start.

5. The U.S. Copyright Act and U.S. Copyright Office state that once an artist applies for copyright protection, the protection is automatic. However, I've recently read a formal copyright creates a public declaration of ownership - what does that mean?

First of all, there is an assumption embedded in that question which is not correct. The protection is automatic at an earlier time than that. The protection is automatic as soon as the work is reduced to a tangible medium of expression. Please see my above answer, and also my article at:

Next, there's no such thing as a distinction between a "formal copyright" and an "[in]formal" copyright. Rather, a copyright either exists in a work, or it doesn't. It's a "yes", or a "no". A digital thing. A "1", or a "0".

As a practical matter, you could create a work and not tell anyone about it. A number of authors do that. The copyright in that work still exists, as of the moment the work is reduced to a tangible medium of expression. Yet if that work has been hidden from the rest of the world by the author, then the rest of the world really hasn't been constructively warned not to infringe it. Moreover, how could the rest of the world infringe it - take from it - if it has never been published? So some practical problems arise when you consider the possibility of such a "hidden work".

If the author files a work with the United States Copyright Office in Washington, D.C., then that author has thereby made what you might call a "public declaration of ownership". Yet in the vernacular sense at least, the author would also be making a "public declaration" of ownership if he or she self-published the book and affixed to it the textual copyright notice inscription reading:

"(c) 2013 [Author's Name]. All Rights Reserved."

The definition of property is the right to exclude others. Intellectual property follows real property. When you say you own a work, you are also telling the listener that they do not own it. When you say so publicly, that is a public declaration. In my view, governmental filing is one way to make a public declaration. So too is publication of the statement itself. If someone publishes a work and then files a work thereafter, the "public declaration" is actually made at the time of publication, as I would interpret it. The Copyright Office filing would give advantages to the author extending beyond the value that the public declaration alone might have:

6. If any artist has an entertainment lawyer, is it necessary to have an agent or manager?

It depends upon the circumstances. In theory and in the abstract, none of those roles are absolutely necessary. In theory, an artist could become successful and self-sufficient without any of the three - lawyer, agent, or manager.

The lawyer is essential if the artist expects to sign agreements or otherwise take actions potentially compromising the artist's pre-existing legal rights. The music business can be a legal minefield.

The lawyer may also be necessary, at least in the mind of the artist, as and when record labels and publishers tell the artist that they will not consider the artist's material unless routed through an entertainment lawyer representing the artist. Others call that kind of work "demo shopping" or "song-plugging". I call it "project placement work", as described above.

To simplify, a (talent) agent is a person (or entity) that solicits the artist's employment. In many jurisdictions such as New York, California, and Florida for example, a talent agent must be licensed by the state just like other employment agencies might. Particularly, New York State imparts the regulatory responsibility over talent agents, to the New York City Department of Consumer Affairs. The rules for literary agents, on the other hand, are different and more permissive than the rules governing talent agents. The main reason why talent agents are licensed, is due to the historical abuses of artists that occurred resulting from unlicensed agents taking unfair advantage of the artists.

"Manager" is the trickiest definition. In theory a manager can be a personal manager that counsels the artist on his or her career. The manager could travel with the artist. The manager could read scripts or listen to demo recordings for the artist. The manager might even get coffee for the artist. Yet oftentimes the manager acts as a talent agent without a license, and that can cause some legal and other problems. It is apparently difficult for many managers to avoid the temptation of soliciting their artist-client's employment in jurisdictions wherein they are not supposed to do it.

A lawyer may not work for a percentage. But a manager might. An agent might. The issue that an artist needs to consider at the outset of his or her career, is, how many percentage-interests can the artist really afford to give out to different people at the front-end? If too many representatives become entitled to collect the artist's income and deduct percentages, there might be little if any money left to trickle-down to the artist at end of day:

Moreover, the artist percentage deal with a rep basically means that the artist is betting against his or her own career. After all, the only time when the rep percentage deal is a good artist bet, is if the artist's career fails - because in that case, the artist doesn't owe the rep much or anything for the rep's time spent. If, on the other hand, the artist becomes wildly-successful, the artist could end up paying two or three different reps 10%, 15%, or 20% for opening envelopes, fielding calls, or even just sitting on the couch. There is a huge difference between hiring someone on a commissioned basis, versus hiring someone for their time spent. The motivational behavior curve is totally different, as are the economic consequences to the artist.

7. How important is it for an artist to join ASCAP?

It depends upon the circumstances and the timing. The American Society of Composers, Authors, and Publishers (ASCAP) is one of three well-known "PRO's" or "Performance Rights Organizations", with which songwriters and musicians interact here in the United States:

There is also Broadcast Music, Inc. (BMI):

and SESAC (formerly known as the "Society of European Stage Authors and Composers"):

ASCAP and BMI predominate in the PRO market. Typically the artist would sign up with only one of the three.

The main thing to keep in mind, and to simplify, is that so-called "music publishing" income is principally comprised of four different types of income-streams: (A) mechanical, (B) synchronization, (C) performance, and (D) print. ASCAP, BMI, and SESAC are the societies which a songwriter or music publisher may use to collect and administer performance income - for example, when a song is "publicly" performed on a juke-box, at a sports stadium, or in a music hall. The PRO's monitor public performances of music throughout the U.S. Pursuant to some formulae, they pay out public performance royalties to the rights-holders of the performed songs. The payments are usually much smaller than the rights-holders expect.

It's not an absolute economic necessity important to join ASCAP, BMI, or SESAC prior to the time when the artist's music is actually being publicly-performed. However, it is important for the artist to become familiar with and interact with these PRO's, as early in the artist's career as possible, if only for the seminars, gatherings, and other information alone. PRO's are artist-oriented organizations and can be valuable resources for any artist at the beginning of his or her career.

8. Will copyright laws protect a musical artist's work internationally?

That is probably too difficult a question to answer within the scope of a single article.

To simplify for now, the United States copyright laws protect the artist's work in the United States. Beyond that, there are treaties and understandings with other countries which may extend certain types of protection beyond the fifty states.

However, it would likely not be in the artist's interests to rely upon treaty-oriented or comity protection alone. Some countries in other parts of the world are notorious for providing safe havens to copyright infringers, for example. There are embargoed countries. There are countries with which the United States does not have treaties. There are countries with which the U.S. has treaties, but not real reciprocity in terms of intellectual property protection.

The only safe way to evaluate copyright protection internationally, is to do so country-by-country. In other words, if the work is to be published in eight different countries, then protection of the work needs to evaluated through eight different copyright-law lenses. Though other countries share some copyright law precepts with the United States, there are also many differences. It is good for U.S.-based people and companies in the entertainment business, to have relationships with local counsel in countries of particular likely importance in the arts and entertainment field - in the European countries, particularly.

9. How important is it for an artist to obtain trademark protection on a stage name, group name, or album name?

In certain circumstances it may be important to claim trademark or service mark protection in a stage name, group name, or album name. Yet this is usually a much tougher and more expensive proposition than claiming copyright in a song, for example.

Most names in use have a dictionary-word root and have been used by someone else before, in one form or another. The same is true for most acronyms. It is actually very difficult to find, choose, and "clear" a trademark or service mark. Most marks have the risk of competing claims already attached to them. There is very little new under the sun.

In theory, trademark or service mark rights are established as a result of use alone. In other words, as is the case with copyright, you don't necessarily need to file your claim with a governmental office, to own the intellectual property referenced in your filing. Yet in some cases artists and bands actually do file trademark applications with the United States Patent and Trademark Office (USPTO):

In some cases, parties will litigate over stage names, group names, or album names.

Most artists do not end up filing trademark or service mark applications for stage names group names or album names, because the costs of doing so correctly would be too high. Marks should be searched and "cleared" before filing, and the searches themselves can be expensive.

The only marks that an artist should consider registering with USPTO, are those that are certain or likely to generate revenue. There are risks to filing. Filings are public and can sometimes evoke adverse claims from third-parties, for one thing.

10. Who is responsible for making sure that the artist is receiving all royalties due on work created?

There are many different answers, since there are many different situations wherein an artist may receive royalties. The answers could include:

-The lawyer who drafted or negotiated the agreement providing for a royalty payment.

-The artist's own diligence in monitoring the royalty statements, if any.

-The artist's manager, personal manager, personal assistant, or agent.

-The artist's business manager.

-The artist's accountant or auditor.

-The artist's music publisher.

-The artist's Performance Rights Organization.

-The artist's collection agent or agents.

-The payroll company.

-The company or other paymaster: record label, studio, production company, distributor, network, cable channel, or book publisher.

-The union or guild, if any.

However, in the final analysis, it is up to the party contractually-obligated and legally-obligated to pay, to do the correct thing, follow the contract, follow the law, and pay on time. When they don't, we see conflict, audits, and sometimes litigation. See:

11. Who holds the copyright in music created - artist, composer, record company, publisher, or all four?

It depends upon the circumstances. An artist as author and composer who just completed his or her work on his own and rendered it in a tangible medium of expression, owns 100% of the copyright in that work, assuming no extenuating circumstances requiring otherwise.

The U.S. Copyright Act requires that transfers of interest in that copyright, are only valid if in a signed writing:

So your question is answered by the answer to another question: What rights, if any, did the artist subsequently part with contractually, after the work was created? There are three possible answers - "none", "some", or "all".

Copyright in music should be thought of as not a single strand, but rather as a bundle of rights. Most significantly, the copyright interest in the "song" or "composition" (often commemorated by a USCO Form "PA" which stands for "Performing Arts"):
 - is a different interest than the copyright interest in the "master" or "sound recording" (often commemorated by a USCO Form "SR" which stands for "Sound Recording"):

In the paradigm of the traditional record label deal, the label's form documents would often purport to require that the label own 100% of the masters, while on the other hand "allowing" the artist and/or his or her publisher to own some or all of the "publishing" or composition copyrights. That distinction still confuses many people, to this day. And you would be surprised at how many artists still inadvertently sign away their "publishing", for a song.

12. Does copyright in music extend, for example, to unpublished but intended commercial music, that may not yet be available to the general public to hear?

Copyright in music is automatic as it is in any other art form, and exists as of the moment that the work is reduced to a tangible medium of expression:

At that moment, the author owns the copyright in that work.

Whether or not that music is "commercial" as opposed to "non-commercial", or "available" versus "un-available", really does not affect the copyright status of the work. In other words, if J.D. Salinger wrote a manuscript and then immediately hid it in a safe, never showing it to anyone, and never making commercial use of it, he still owned the copyright to that same work at that moment of creation.

On the other hand, the "commercial" versus "non-commercial" distinction might be significant in the context of a court deciding how severely to punish copyright infringers. Generally speaking, an infringer making or seeking to make money off of the infringement, will be penalized more severely than an infringer who did so accidentally or for a non-pecuniary purpose:

13. What advice would you give to future entertainment lawyers?

There's a lot - more than I could impart in a single interview answer. But the two basics are: (A) Ignore anyone who tells you that your career choice can't be attained and maintained; and (B) Be careful. Always.

The third basic, is (C) Don't be afraid to evolve, particularly in connection with new technology. Any technology which makes it easier to manipulate and route documents and text, should be seriously considered.

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Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY 10128 USA
1-212-410-4142 (phone)
1-212-410-2380 (fax)

Brits Demand Pirate Bay Blockade - Interview With Entertainment Attorney John J. Tormey III, Esq.


Brits Demand Pirate BayBlockade
By Rachelle Dragani
E-Commerce Times
11/07/11 11:02 AM PT

British lobby group BPI wants one of the UK's largest Internet service providers, BT, to ban its customers from accessing file-sharing website The Pirate Bay. The site's been blocked in a handful of countries before, yet it lives on as one of the Web's most popular destinations for those looking to share copyrighted material online.

A coalition of film studios, record labels and media entities led by the UKrecord industry lobby group BPI recently sent a letter to British Internet service provider (ISP) BT demanding that the company block access to The Pirate Bay website.

The group said that if BT doesn't act within two weeks, the matter will proceed to court. BPI is banking on the recent UK court decision regarding Newzbin2, a British file-sharing website recently blocked by court order.

It was the first British website to be blocked for reasons besides carrying offensive material such as child abuse images, and BPI is hoping to capitalize on that decision and get the courts to again demand blocking The Pirate Bay, which provides visitors with files that can be used to share media and data online, including copyrighted works.

It's not the first time The Pirate Bay has faced such demands since its start eight years ago by a Swedish anti-copyright organization. Lawsuits and raids have led to brief downtimes for the website, as well as restrictions, fines and prison sentences for its creators. The site is blocked in Denmark, Finland, and Italy.

BT indicated to The Guardian that it would await a court order before blocking any Web content. The Pirate Bay, BPI and BP did not respond to the E-Commerce Times' requests for further comment.

Copyright Battles

"The effects of illegal downloading and piracy have certainly trickled down to the ranks of the artists and creative community", New York entertainment lawyer John J. Tormey III told the E-Commerce Times. The music industry has been transformed, the TV industry has been transformed, the book publishing industry has been transformed, and the film industry has been transformed."

The producers of copyrighted media whose works are freely traded online have for years said their businesses are directly hurt by piracy. However, as industries start to blend together -- for example, a computer company like Apple could make deals to become a content provider -- there are many more organizations with interests in protecting copyrights.

"If the courts don't support the business of copyright, then we're pulling the rug out from under the ones who are doing it to survive, and it dis-incentivizes creation. From a global perspective, it really puts you in a less competitive place", said Tormey.

No Going Back

Illegal downloads, illicit BitTorrent activity, unauthorized streams and other pirating methods have become so rampant it may be practically impossible for the film, music and television industries to eliminate the phenomenon entirely. If the BPI can get The Pirate Bay blocked, as it has been in other countries, there will likely still be other sites and methods for freely obtaining and sharing copyrighted material.

Since the legal system has to straddle the line between protecting freedom of speech and protecting enterprise, coupled with a technological scene that's advancing quickly, legislation has had a difficult time keeping up.

In order for copyrights to maintain their importance, then, outdated legislation might not be the answer, though it's possible for protections to catch up to technology.

"Carriers are essentially saying they can't control what goes through the door, but the technology exists. The U.S. government has the ability to pick up on certain key words as a weapon against terrorism, so the intelligent powers know that a macro can be set up to pick up material that is harmful - so the technology exists of common carriers to pick up certain file-sharing or illegal activity", said Tormey.

Some record labels or pro-copyright groups also focus on education campaigns to counter the inability of legislation to accomplish widespread bans on illegal file-sharing.

"I'm not sure if legislation can fix the system, but I think education can", [another commentator] told the E-Commerce Times. "We have to do a better job of educating everyone about the importance of copyright because the kind of legislation we see coming out ends up being clumsy and overreaching, putting us in a situation where we end up clamping down on free speech instead of keeping the lines open".

Is Paula Abdul Exit An American Idol PR Stunt? – Interview With Entertainment Lawyer John J. Tormey III, Esq.

Is Paula Abdul Exit An American Idol PR Stunt? –
Interview With Entertainment Lawyer John J. Tormey III, Esq.

Is Paula Abdul Exit an American Idol PR Stunt?
by Free Britney at August 6, 2009 10:36 am

Despite Paula Abdul's farewell Tweet and Fox wishing her happy trails, the latest American Idol conspiracy theory suggests she's not going anywhere.

Here are a few bits of evidence (albeit circumstantial) that make us wonder if the reality show and the wacky, but entertaining judge are really parting ways:

 •Within an hour of Abdul's bombshell, celebrity gossip maven Bonnie Fuller, late of, tweeted that "Abdul has already signed her new deal [with American Idol]. The whole sob story was a pure publicity stunt".

 •Asked to comment if there was no way Abdul wouldn't be back on American Idol come the winter and the launch of the new season, Fox reps didn't respond.

 •On his radio show this morning, Ryan Seacrest said Abdul's departure was real, "as far as I know". Randy Jackson, meanwhile, said "It looks to be true".

•Asked to comment if it was possible for a star and network to cook up a scheme, entertainment attorney John J. Tormey III said, "Anything's possible."

 •Unnamed "television industry executives" told the New York Times they believe "Ms. Abdul's combative stance is simply a negotiating tactic". Of course, it could well be a one-sided tactic, if she really wants $20 million a year.

 •Tormey didn't think it was a reach to suggest Paul Abdul would appear to walk away from a deal in order to sweeten it. "In television" ,the lawyer said, "it's not uncommon for talent to take a hiatus in the event of negotiations".

So? What do you think? While it sounds obvious, the only way we'll know is with the passage of time ... or the instant American Idol get a new judge (today's rumored replacement is Victoria Beckham), or Paula Abdul gets a new gig.

Until then, we say let the conspiracy theories pile up!

Would you miss Paula on American Idol?

Read more:

Is Paula Abdul Exit An American Idol PR Stunt? – Interview With Entertainment Lawyer John J. Tormey III, Esq., August 6, 2009

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Paula Abdul Exiting Idol? Yeah, Right
by Joal Ryan Thu., Aug. 6, 2009 6:09 AM PDT

Michael Becker/FOX

It's February 2010. The first singer from American Idol's first live show of the season—let's call him Obligatory Husky Guy (Who Can't Decide If He's Country or Pop)—has hit his last shaky note. Ryan Seacrest leads the poor fellow to face the judges.

Randy Jackson says the performance didn't do it for him, dawg. Kara DioGuardi says something valid but forgettable. Paula Abdul tells him she loves the color of his inner child, but that she preferred the song he sang next week.

Wait a second. Didn't Abdul tweet that she was leaving Idol? Didn't Fox issue the old "wish her the best" kiss of death?

Uh-huh. The leading and latest Idol conspiracy theory says Abdul's not going anywhere except back to Idol, while the two sides act out the greatest hoax since Elvis Presley's "death".

Why It Could Be True:

• Within an hour of Abdul's Tuesday night bombshell, tabloid maven Bonnie Fuller, late of, tweeted that "Abdul has already signed her new deal with Idol. The whole sob story of not getting a deal was a pure publicity stunt". In another entry, Fuller further alleged, "Everyone was into the Paula PR stint [sic]".

• When asked to comment if there was no way Abdul wouldn't be back on Idol come the winter and the launch of the new season, Fox reps didn't respond.

• On his radio show this morning, Seacrest said Abdul's departure was real—"as far as I know." Jackson, meanwhile told Extra, "It looks to be true [emphasis added]".

• When asked to comment if it was possible for a star and a network to cook up such a scheme, entertainment attorney John J. Tormey III told us, "Anything's possible".

Why It Isn't True:

• Tormey finished his thought by adding, "I would hope that a major network would not play a game like that… I think that's a real jump".

• By this morning, Fuller was having second-tweets. She wrote that her sources were now informing her that the Fox/Idol camp was "stunned" by Abdul's exit announcement. "Guess Paula Abdul is as loopy as she appears".

• Seacrest ended his opening remarks on the Abdul matter with a blanket "Not a publicity stunt".

But Wait! Why It Could Be Partly True:

• Unnamed "television industry executives" told the New York Times that they believed "Ms. Abdul's combative stance was simply a negotiating position". Or to put it another way, if this is a stunt, it's a one-sided stunt—and good luck to you, Ms. Abdul.

• Tormey likewise didn't think it was a reach to suggest Abdul would appear to walk away from a deal in order to sweeten it. "In television", he said, "it's not uncommon for talent to take a hiatus in the event of negotiations". To that end, old folks might remember the "fake" Duke boys on The Dukes of Hazzard. Or, less old folks might recall buzz about Nicole Richie being replaced by Kimberly Stewart on The Simple Life.

How We'll Know for Sure, One Way or the Other:
• "The only way we'll know is with the passage of time", Tormey said. "I don't know if we're there yet".

• According to Tormey, the second Idol hires a new judge or Abdul gets a new gig, we'll be there—and we'll know: Not a publicity stunt.

Need more facts? Check out our complete Paula Abdul coverage.

Paula Abdul Exiting Idol? Yeah, Right – Interview With Entertainment Lawyer John J. Tormey III, Esq., August 6, 2009

Wednesday, January 16, 2013

Timid Exclusive's Interview With New York Entertainment Attorney John J. Tormey III, Esq.

Timid Exclusive's Interview With New YorkEntertainment Attorney John J. Tormey III, Esq.

John J. Tormey III, Esq. is a heavy-hitting entertainment attorney from New York City. His mix of experience and insight on the world of entertainment has brought him great success. He is old-school and has been around long enough to find ways to help artists despite the rise in illegal downloads. I was given the privilege and honor to interview John J. Tormey III. Enjoy the experience, read the interview, and visit John J. Tormey III's website for further information:


1. As a lawyer, how important is protecting intellectual properties?

Well, it may not be important to all lawyers in all parts of the practice and in all jurisdictions. Many other lawyers practice in such narrow areas of specialty, and/or in such unrelated fields, that intellectual property (I.P.) issues seldom, if ever, come up for them. Yet for a music and entertainment lawyer like myself, intellectual property protection is an everyday, life-time concern and a regular challenge.

In theory, every business-owner should have a working knowledge of I.P. After all, one's own business name is a property, usually claimable as a trademark or service mark. So, too, might be a band's name or an artist's name.

Clearly anyone in the field of entertainment needs to have a working knowledge of intellectual property - and, with respect to their own original material, they need to be vigilant in regards to protecting it. The primary areas that need to be mastered in these respects, are the I.P. areas of copyright and trademark. A good starting-point is the U.S. Copyright Office (USCO) website:
to the extent an artist may not already be familiar with it. I first learned about copyright by writing to the USCO and requesting their written materials by mail. This was in the days before the Internet happened.

2. What is it like working with TV actors and musicians?

I love doing it, but for me it is business as usual. My father is an actor who started his career as a child actor in the 1940's. I grew up on tour with my Dad and my Mom while one and sometimes both of them were working on summer-stock or other performances.

I played guitar in a rock-and-roll band in high school with a piano-player named John ("Jojo") Hermann:
who then became Widespread Panic's keyboard player. I played guitar in a rock-and-roll band in college with Tom Morello:
who then became the guitar player for Rage Against The Machine, Audioslave, and Street Sweeper Social Club, not to mention his work as The Nightwatchman. I sometimes still play rock music with members of my college band, in what little free time I have these days.

The majority of my friends are in the arts or entertainment in some way. So, it's more than working with actors and musicians. I live with actors and musicians, and in some cases I'm related to them.

3. How does it feel to be the force behind so many forms of media?

I would never say that, because I'm not the talent in the performance or recording. Maybe my clients are, if their work gets heard or seen in any individual case. I think if there is a "force" behind all of it, it's something more akin to divine inspiration - that moment when the creativity runs right through the artist as template or conduit. Artists are original but are also a product of their life-experiences, and what they have already seen and heard. The "force" of artistic creativity is a lot bigger than any one of us.

That said, I think an entertainment lawyer has to have a respect of, and also a distance from, the art form. If you lose your objectivity you can't effectively represent someone. The Hippocratic Oath of doctors is something like, "First Rule, Do No Harm". Something like that is also true for an entertainment lawyer. While the first and foremost rule is to protect the client while following the law, one special corollary for entertainment lawyers should be "Don't Impair The Art Form". In other words, don't ever substitute your own notion of artistic judgment, for that of the artist - at least not when you're working, that is. Know that the art is bigger than you.

In this respect, my clients are the force. They teach me what art really is. Every day.

4. Can you tell us a little about your early life and what led up to being an entertainment lawyer?
I grew up in a show business family, as did many other kids I knew in 1960's Manhattan. I grew up in mid-town. I always ran into celebrities, and always recognized them when I saw them - from the newspaper or my old black-and-white television. My mid-town neighbors growing up were Walt "Clyde" Frazier:
Jack Dempsey:
Rusty Staub:
Jake LaMotta:
Ken Boswell:
Jim Fregosi:
and Dave Marshall:

I played sports at an early age. I played music at an early age. Performances are what people did, and attended, in Manhattan, and still do. I've worked in other areas of commerce, with other forms of businesses, too, but I always considered entertainment the family business - much like a boy who grew up in his father's auto-shop might be more likely to become a mechanic later on, once grown up.

The main question to me was whether I was going to be a performer, as in a baseball player or rock musician - or alternatively, work in the businesses related to those performances. By the time I made that decision, I had already lived through life on the road, and life between casting calls - not to mention with a thrown-out pitching arm and fear of tinnitus. I didn't want to spend an unspecified amount of further time lifting P.A. stacks into and out of unmarked vans, or let the gigs take any more of a physical toll on me. I was thinking long-term. I was reasonably sure that as an entertainment lawyer I could stay as close as I wanted to, to the art forms that meant something to me. I was right.

5. What other lawyers inspire you?

Any lawyer that selflessly works on causes and gives back to the community. I have worked on environmental causes in the past, and that work is the most draining type of pursuit you can ever imagine. It's all-consuming.

My main inspirations are Phil Hoffman, Esq., who was my mentor when I started in the practice of law at Pryor Cashman in New York in 1987 - as well as my entertainment law professor from UCLA School Of Law, Gary Stiffelman, Esq. What they taught me, I take with me and use, every day of my working life.

6. What advice do you have for aspiring musicians?

Well, I wouldn't want my thoughts in an article misconstrued as legal advice for any specific person in any specific situation. That kind of advice should only be sought and obtained in a one-to-one and private dialogue with counsel.

However, I can summarize the things I might say to aspiring musicians who are friends of mine. The main thing now, is not to give up. Collectively, we have just turned the corner, in terms of the American economy, and in terms of the music industry specifically.

Many nay-sayers for the past few years doubted whether new artists could ever make money and support themselves on music ever again. Sure, in some respects it is more difficult to do, post-digital downloading. But the music industry has already re-invented itself. The center of gravity is now performance and touring revenue, and merchandise. Don't fight the new model. Embrace the new model.

Furthermore, there is so much more that artists can do now to promote sales and make themselves known, including social media. And the trend is towards eliminating the middlemen who used to interject themselves into every income-stream. Embrace the new model. Make it your own.

I used to have music friends who were afraid to use cell phones. Now, those same friends are managing their publishing businesses with secure lap-tops while on tour. The main bit of advice to music friends always is, "Empower yourself, control your own destiny, and make sure that you (or your counsel) generate all your own documents". I tend to see artists as in either of one or two groups - "Victims", and "Empowered". The fundamental distinction between the two groups, is that the "Victims" make themselves beholden to other people's documents, whereas the "Empowered" control the drafting of their own documents. With the availability of desktop-publishing since the 1980's, there is no excuse now for not controlling the drafting of the documents that affect your life or your career. There is no reason to ever blindly sign on to someone else's form. All that does is make more work for the litigators.

7. What is your opinion on the current state of the music industry?

I'm sanguine about it.

The best new feature is the ability of artists to self-distribute, either by sale of CD's on tour at retail, or over the Internet.

The worst new feature also relates to the Internet, though, too - the ability of pirates to poach material digitally, in a matter of milliseconds.

Personally, I am happy that a premium is now placed on artists doing live performances, and more of them. To me, that is what the art form is really about, anyway. There are bands re-grouping after 20 or 25 years of inactivity, and going back out on the road. In a way, it's a shame that current economic realities force them back out on the road when they earlier thought they could comfortably retire on royalties. But the fact of the matter is, it's a good thing that one or two whole new generations of music fans now have an opportunity to see and hear these bands and artists. After all, once these bands and artists are gone, all that may remain are the recordings - and the recordings just aren't the same thing as a live performance, or the meet-and-greet afterwards.

8. What's the hardest part of being involved in the entertainment industry?

Knowing that some talent remains undiscovered... and, these days, seeing a trend towards the replacement of union talent with non-union talent, which is a somewhat-related issue. The just-world-hypothesis tells us that talent and hard work should be rewarded. It often is. But it is not always rewarded. Unfortunately politics and luck sometimes play a part in the reward outcome, too.

That said, the trend towards artist self-distribution might be the panacea. The market, the public, should decide which art they want to pay to hear, see, and experience. The decision should not be force-fed to the public by the same 3 or 5 corporate conglomerates.

So I think generally, the hardest part about being involved in the entertainment industry, is knowing that the continued concentration of economic power therein, in the hands of a few rather than many, prevents a lot of good material from being heard or seen.

My hope is that this changes in my lifetime, and that I get to see it. I am going to continue to fight to make the change happen, too.