New York Enacts the Truth in Music Advertising Act

Entertainment Law:  The New York State legislature enacted a new statute specifically aimed at advertising in the music industry.  The Truth in Music Advertising Act, NY Art & Cult Aff. § 34.01, et seq., was effective as of September 14, 2007 and specifically proscribes that:  
                                       
“No performing group shall use, advertise or promote a live musical performance or production through the use of a false, deceptive or misleading affiliation, connection or association between a recording group and a performing group where such performing group is seeking to use the same or a substantially similar name as such recording group.”

In other words, the law prohibits, with certain exceptions a musical group from misleading the public with regard to a live musical performance in New York by indicating an affiliation with another group, at least one member of which has previously released a commercial sound recording under the group’s name.  This could play out in a number of ways.  First, it would arguably prohibit a band from performing under a name that has been used by a recording group.  Likewise, the law would arguably prohibit the advertisement of a band under a name that is similar to that of a recording group.

The law dovetails with current State and Federal trademark and advertising laws, however it provides a specific cause of action and right for the Attorney General to seek a remedy in the proscribed wrongful behavior.  Moreover, the law provides for an assessment of civil penalties of up to $5,000.00 for a first violation, and up to $15,000.00 for subsequent violations.  This is in addition to other damages that may be available when seeking remedies under other laws, such as trademark law.  The law also specifically allows the Attorney General to obtain injunctions in relation to this conduct.

However, the challenge is the breadth of the statute.  The law does not appear to be intent-based. Moreover, the proscribed exceptions do not include the unknowing use of a recording group’s name.  It is therefore possible that a performing group could assume a name that is already in use by a recording group, and therefore be unwittingly in violation of the law.  This is compounded by the broad definition of “recording group.”  As stated, to be considered a recording group, the group need only have had one member release a commercial sound recording under that group’s name, and that sound recording can be of any nature in which the sound can be fixed, including CD, tape or computerized file.  Accordingly, a group could arguably meet this definition very easily.

Through the adoption of the Truth in Music Advertising Act, New York joins the over one-dozen other states that have adopted similar statutes, including New Jersey, Pennsylvania, Connecticut and Florida.  Interestingly, the New York law is aimed only at the use or advertisement of a name by a performing group.  This is a variation from other states laws.  For instance, New Jersey’s Truth in Music Advertising Act prohibits “any person” from such advertising or usage.  Accordingly, whereas the New Jersey law could arguably be used to also prohibit a venue from falsely advertising a performance by a recording group, the New York law does not appear to provide for such a violation against anyone other than the performing group itself.

Notably, these truth in advertising laws tend to be relatively new phenomena, with many of the statutes being enacted only in the past couple of years.  Accordingly, there is little case law interpreting or challenging the import of the laws.  New Jersey’s Truth in Music Advertising Act, which was adopted in January 2007 is now being challenged in the courts.  Specifically, there is a case pending in the U.S. District Court of New Jersey which represents one of the first cases to try to enforce the law’s reach.  Also pending is a current lawsuit against State Attorney General Anne Milgram challenging the enforcement of the law.

We therefore recommend the following:

· Musical groups should obtain legal counsel prior to adopting a group name in order to ensure that such name is not already in use, and in order to secure its rights to the name

· Venues and musical groups should ensure that any and all advertising relating to their live performances in New York have been cleared by legal counsel prior to their publication and distribution; and

· Venues and musical groups alike should ensure that their contracts address this new law and the responsibilities of each party relating to the same.

Comments/Questions:

ljm@gdnlaw.com