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16 Comm. L. & Pol'y 1 (2011)

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16 COMM. L. & PoL'Y 1-15 (2011)                        Routledge
Copyright @ Taylor & Francis Group, LLC                Taylor&Franis Group
ISSN: 1081-1680 print / 1532-6926 online
DOI: 10.1080/10811680.2011.536495



        Conflicting intellectual property regimes between the states and the
        federal government are an increasing problem. One relatively new
        species of state intellectual property protection that may conflict with
        federal trademark regulation is the Thuth in Musicstatute, a version
        of which has become law in some thirty-three states. Thuth in Music
        (TIM) laws punish attempts by performing musical groups to improp-
        erly capitalize on the success of recording acts. In a number of common
        scenarios, it is not clear that these statutes can survive preemption
        analysis under the federal Lanham Act, the primary source of federal
        trademark protection. This article explores TIM statutes and analyzes
        whether preemption is likely to be the fate of this new state intellectual
        property regime.

Imagine you are the creator and manager of a boy band called Boyz
R Us that defies the odds and earns a number one hit record with
its rendition of the R & B-tinged ballad, Girl, I Totally Miss You (All
the Time). In the wake of this hit record, the group performs both
nationally and internationally to great success. As the creator of the
act, you hire choreographers, arrangers and backup musicians; select
musical material; and produce studio albums and the group's stage act.
You also claim legal rights in the service mark Boyz R Us, although
you never get around to federally registering this mark with the United
States Patent and Trademark Office. As time passes, members of the
group rotate through the band for a few years, then depart as they
approach the decrepitude of their early twenties. Although the group
continues to perform live to receptive (if smaller) audiences, it turns out
to have been a one-hit wonder, and no further significant chart activity

'Reese Phifer Professor of Journalism, University of Alabama.

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