Intellectual Property Law Updates

Law Updates also provides hyperlinks to other sites which may be of use or interest to students and those involved in the music industry. These are provided at the end of Law Updates under 'Music Business Law Links'.

This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate in law from Kings College London and The City University. He also holds the degree of Master of Arts in Mass Communications from the University of Leicester. Ben is a fellow of the Royal Society of Arts. Ben acts as General Counsel for 3A Entertainments, one of the UK's leading concert promoters, and is Executive Producer for television of the Glastonbury Festival. Glastonbury is the UK's leading music and arts festival attended by over 150,000 people. For Glastonbury, Ben combines the role of managing the Festival's broadcast and other media rights alongside acting as General Counsel for the Festival. Ben's other clients have included the Prince's Trust, the Granada Media Group, Pioneer LDCE and British Telecom. Ben regularly writes articles and other material on music business and intellectual property law, contributes to books and is a regular conference speaker in particular on the live music industry. He is currently preparing a collection of cases and materials on music business law for publication. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England and sits as a magistrate (Justice of the Peace) in Hertfordshire, England.

We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com

May 2005

IMAGE RIGHTS/COPYRIGHT/PRIVACY
Film & Televison, Artists
-City employees sue Dr Dre after 'secretly' filmed footage appears on DVD-
Lawyers for US rapper Dr Dre (Andre Young) have asked a judge in Flint, Michigan to dismiss a legal action concerning video footage filmed at a concert in July 2000. Three former Detroit City employees were filmed arguing boisterously with some of Dr Dre's representatives. The trio are suing Dr Dre, Time Warner Inc and Best Buy Co claiming they were unaware that the footage would be used in a documentary released in 2002. The action is centered on a concert at Detroit's Joe Louis Arena on 6 July 2000 which formed part of Dr Dre's "Up in Smoke" tour. The footage in question records a conversation between tour organisers and Detroit city officials that took place after Dr Dre was forced to drop two sexually explicit videos from his act. Former Mayoral spokesman Greg Bowens, Paula Bridges and Gary Brown claim a camera and a microphone was used to record the meeting without their knowledge and claim that they did not authorise their subsequent appearance in the 2002 documentary "Detroit Controversy". But the defendant's legal team claim that all involved knew that cameras were rolling. Time Warner is being named in the action because it distributed and marketed the DVD and Best Buy is named because it sold the DVD. Dr Dre subsequently sued the city of Detroit in 2000, who apologised for infringing his free speech rights and paid him $25,000 (£13,288).

See: http://news.bbc.co.uk/1/hi/entertainment/music/4374745.stm

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COPYRIGHT
Record Labels
-RIAA drops download infringement action against 'students'-
The Recording Industry Association of America decided to drop its case against two anonymous individuals identified only by their Internet protocol addresses in a December 16th lawsuit. The case has been dismissed without prejudice meaning the case could be brought up again. The decision comes in response to the University of Pennsylvania announcement that it had been unable to match the IP addresses to any specific users. The addresses are numbers assigned to uniquely identify users but insufficient records made it impossible to match the addresses to a name. The University refused to provide any detailed information regarding its inability to find the two downloaders leading to speculation that it was trying to thwart the RIAA but the University denies such allegations. The lawsuits against students put college administrators in a difficult position, wanting to protect their students but still having to uphold the law. Issues of privacy have also been used to challenge RIAA actions.

See: http://www.dailypennsylvanian.com/vnews/display.v/ART/2005/03/30/424a59cb4c32b

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COPYRIGHT
Music Publishing
-Xzibit and Dr Dre defeat songwriter's claim-
An aspiring Philadelphia songwriter faces a stiff penalty for filing a lawsuit in which he claimed that he created the beat for the track 'X' on rap star Xzibit's platinum-selling album "Restless." A federal appeals court on Wednesday ruled that music business hopeful Michael Lowe's copyright infringement suit against the rapper, several record companies and one of the song's credited authors - Dr. Dre - was frivolous. The judges also upheld a lower-court's order that Lowe pay Dr. Dre's legal fees and court costs, which amounted to about $35,000. The 3rd U.S. Circuit Court of Appeals ruled that Lowe's legal claim was doomed from the start, even if it was true that he laid down the beats underpinning the song "X." Lowe's story was that he recorded the beat first, then presented it to rap producer Scott Storch in the hopes that he would pass it along to Dr. Dre for use in song. In a legal deposition, Lowe said he never expected any compensation in return for the beat. The court said that if Lowe indeed gave away the track freely, he couldn't sue over it now. Storch consistently maintained that Lowe had nothing to do with the song. "Restless" lists songwriting credits for "X" to Xzibit, whose real name is Alvin Joiner, Dr. Dre, whose real name is Andre Young, and Melvin Bradford, a rap writer who goes by the stage name Mel Man.

See: http://www.phillyburbs.com/pb-dyn/news/103-03232005-467132.html

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COPYRIGHT
Press, Internet
-Google sued over reproducing news extracts from AFP-
Agence France Presse (AFP) has issued legal proceedings against Google in the Us District Court for the District of Columbia alleging the Web search engine includes AFP's photos, news headlines and stories on its news site without permission. The French news service is seeking damages of at least US$17.5 million and an order barring Google News from displaying AFP photographs, news headlines or story leads. AFP provides material by subscription and does not provide free content. Google News gathers photos and news stories from around the Web and posts them on its news site, which is free to users. AFP claim that Google is, without authorisation, continuously and willfully reproducing and publicly displaying AFP's photographs, headlines and story leads on its Google News web pages.AFP said it has informed Google that it is not authorised to use AFP's copyrighted material as it does and has asked Google to cease and desist from infringing its copyrighted work. AFP alleged that Google has ignored such requests and as of the filing date of the lawsuit "continues in an unabated manner to violate AFP's copyrights."

See: http://xtramsn.co.nz/news/0,,11965-4212100,00.html

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IMAGE RIGHTS
Artists
-Real Madrid and players sue over unauthorised use of images-
Spanish giants Real Madrid and several of its top players, including Raul and David Beckham, are taking legal action against online betting firms over what the club claims to be the unauthorised use of its name and players' images. Five star players - Ronaldo, Beckham, Raul, Zinedine Zidane and Figo - are joining the club in the legal actions. They are taking action against Ladbrokes, William Hill, Sportingbet, Sporting Exchange, BAW International of Gibraltar and Malta-based Mr.Bookmaker. Legal steps had already been launched in France, Belgium and Germany against these companies. The club wants the companies to stop using the images and to "repair the harm caused"." It is alleged that the companies used the name of Real Madrid and the majority of its players without authorisation and that they often used photographs and drawings of these footballers wearing the kit and badge of Real Madrid.

See: http://www.timesofmalta.com/core/article.php?id=179091

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CONTRACT
Artists, Live Music Industry
-Nugent claim limited to concert fee and direct loss-
Ted Nugent has had his claim against the Musekegon Summer Festival limited to the alleged concert fee and direct loss of profit from merchandise after a cancelled show in June 2003. Muskegon Country Circuit Judge Timothy G Hicks refused to allow claims of more than $1 million for future lost income. If Nugent wins his suit, the most that the 56-year-old musician would be eligible to receive is $80,000 plus an estimate of lost merchandising income. Nugent sued the festival in August 2003. He claims his reputation and career were damaged by the cancellation of his June 2003 show and a subsequent news release from the festival that, he says, wrongly accused him of making racist remarks during a live interview on Denver radio station KRFX-FM in May 2003. Nugent's denies making such remarks. His longtime personal manager, Doug Banker testified this week that he negotiated with festival officials for an $80,000 performance fee for Nugent but there was no signed agreement. Banker said oral agreements were the norm in the concert business.

See: http://www.detnews.com/2005/metro/0503/27/metro-129413.htm and http://www.myplainview.com/APTexas/parsed/stories/D89285MO0.shtml

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COPYRIGHT
Music Publishers, Record Labels, Artists
-First Vietnamese copyright licence for music since Berne Convention became effective-
Singer My Tam has become the first Vietnamese singer to purchase recording and performing rights to an international song since the Berne Convention took effect in VietNam in October 2005. Cancao Do Mar, a Spanish pop song performed by singer Sarah Brightman, and Japanese ballad My Lover are two new singles that will appear on My Tam's Album Vol 4, to be released next month.

See: http://vietnamnews.vnagency.com.vn/showarticle.php?num=01MUS220305

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COPYRIGHT
Record Labels, Music Publishers, Artists, Internet
-Grokster and Morpheus case reaches US Supreme Court-
The US Supreme Court will be the final arbiter as to whether producers of file-sharing software can ultimately be held responsible for copyright infringement. The lawsuit, brought by MGM and 27 of the world's largest entertainment firms, has raged for several years. If the Supreme Court finds in favour of the music and movie industry they would be able to sue file-trading firms into bankruptcy. But if the judge rules that Grokster and Morpheus - the file-sharers at the centre of the case - are merely providers of technology that can have legitimate as well as illegitimate uses, then the music and movie industry would be forced to abandon its pursuit of lawsuits against file-sharing providers (and probably internet service providers. Instead, they would have to pursue individuals who use peer-to-peer networks to get their hands on free music and movies. The hi-tech and entertainment industries have been divided on the issue. Intel filed a document with the Supreme Court earlier this month in defence of Grokster and others, despite misgivings about some aspects of the file-sharing community. It summed up the attitude of many tech firms in its submission which states that its products "are essentially tools, that like any other tools, capable of being used by consumers and businesses for unlawful purposes". The Electronic Frontier Foundation, a civil rights watchdog, is also defending StreamCast Networks, the company behind the Morpheus file-sharing software saying that case raises a question of critical importance at the border between copyright and innovation. Key to the decision will be the Supreme Court's view on the legitimacy of the landmark ruling in 1984 which found that Sony should not be held responsible for the fact that its Betamax video recorder could be used for piracy.

See: http://news.bbc.co.uk/1/hi/technology/4394371.stm

See Don't Shoot The Messenger: Music Technology and Copyright Infringement in the Digital Age by Ben Challis :
http://www.musicjournal.org/03dontshootthemessenger.html

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COPYRIGHT
Record Labels, Internet
-MMO appeal fails in Tokyo's High Court-
Tokyo's High Court dismissed an appeal against the earlier ruling by the District Court against Japan's MMO and its boss Michihito Matsuda who were offering file-sharing services on the Internet, called FILEROGUE. On December 17, 2003, the Tokyo District Court issued its judgment and ordered Japan MMO and Michihito Matsuda to cease their service and jointly pay 36.89 million Japanese yen (close to $344,000) in total for damages to JASRAC and 19 plaintiffs (members of the Recording Industry Association of Japan).

See: http://p2pnet.net/story/4417 and see Law Updates February 2005

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COPYRIGHT
Record Labels, Artists
-Common law used to protect pre 1972 copyrights in US-
A ruling in a New York court is expected to have a major impact on the recording industry. Capitol Records had sued another New York-based recording company, Naxos of America, for copyright infringement of recordings of classical music it owns which were originally made by the Gramophone Company Limited (now EMI, parent of Capitol) and which had fallen into the public domain in Europe. In the United Kingdom and Europe copyright in sound recordings expires fifty (years) after the year of recording or first release. Naxos had begun to distribute its own restorations of the recordings. The District Court dismissed Capitol's lawsuit, saying the UK copyrights had expired 50 years after the records were made and that US copyright laws don't apply to recordings made before 1972, when federal laws were enacted. On appeal the Second Circuit noted that it was entirely up to New York to determine the scope of its common law copyright protection for pre-1972 sound recordings. New York State's Court of Appeals ruled that common law in New York protects ownership interests in sound recordings made before 1972 that aren't covered by the Federal Copyright Act. An attorney for Capitol suggested the ruling means artists, their estates and others involved in recordings made before 1972 should be able to collect US royalties for their performances.

US Attorney David Moser adds: This is an interesting case although admittedly confusing. Basically, up until 1972, the federal U.S. Copyright Act did not recognize sound recordings as a type of copyrighted work. In 1972, the law was amended to add sound recordings although in a more limited way than other types of copyrighted works (i.e., no public performance right). However, until passage of the Copyright Act, the U.S. had a dual copyright system - federal copyright as well as common law copyright under which states could give protection to works not protected under federal copyright. The New York court is apparently saying that even though the UK copyrights had expired & federal U.S. copyright is not applicable to pre-1972 recordings, they are nevertheless protected under N.Y. common law. Of course the practical problem is that a New York ruling is only applicable in New York so it doesn't do much for ensuring uniformity.

See: http://www.wstm.com/Global/story.asp?S=3168675
http://www.latimes.com/business/la-fi-recording6apr06,1,1393608.story?coll=la-headlines-business
http://www.hollywoodreporter.com/thr/music/brief_display.jsp?vnu_content_id=1000866670
Columbia Records, Inc. v. Naxos of America, Inc.
http://caselaw.findlaw.com/data/ny/cases/app/30opn05.pdf

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TAXATION
Artists, Live Concert Industry
-Does European decision herald true pan-European tax accounting?
Marks & Spencer Plc v Halsey (Inspector of Taxes) European Court of Justice C446-03-
The Advocate General of the European Court of Justice had held that UK tax law, which allows group tax relief for losses in the UK only and does not allow a firm to deduct the losses of foreign subsidiaries, is in breach of EU law. Miguel Poiares Maduro, recommended that Marks and Spencer be allowed to offset losses made at its foreign subsidiaries against its tax burden in Britain. He said British tax law was in breach of EU law by refusing to allow companies to offset tax losses from overseas subsidiaries against British profits. "The principle of territoriality cannot justify the current restriction" he said adding that a blanket restriction on this practice far exceeds what is necessary to protect the cohesion of the British tax system. The advocate general said the only condition should be that losses from foreign units would not also receive fiscal benefits in the states abroad. Germany, France, the Netherland, Greece, Finland and Sweden all backed the UK Government's position fearing they will have to repay billions of Euros if the court finds in favour of Marks & Spencer. Austria and Denmark already allow losses from foreign subsidiaries to be deducted.

See: http://www.eubusiness.com/afp/050407091956.9ldr1bmn
http://curia.eu.int/en/actu/communiques/cp05/aff/cp050029en.pdf

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COPYRIGHT
Record labels, Artists
-Hallayday loses appeal and masters-
French rock singer Johnny Hallyday has lost his bid to gain control of some 1,000 master copies of his songs after an appeal from Universal was accepted by a Paris appeals court. The appeal court overturned an earlier decision that ordered Universal to hand back the valuable original recordings. Hallayday will now be bound to Universal until the end of 2005, producing one more album but will not be able to produce another album for any other label until 2007 - this is to ensure Universal has enough time to promote the album before Hallyday releases another one. There was originally an agreement to record six albums with Universal until relations broke down. Hallayday plans to tour again and under the new decision, Hallyday will be able to record new versions of his past recordings for another record label from 2007, but a fee would have to paid to Universal.

See: http://news.bbc.co.uk/1/hi/entertainment/music/4437563.stm

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COPYRIGHT
Internet
-Links to piracy tools ruled illegal in Germany-
A German district court has ruled that German website Heise.de has violated the country's copyright legislation by linking to SlySoft's website. SlySoft is the maker of ANYDVD, a software product that allows cracking the copyright protection found on most DVD-Video discs, and CloneCD, a tool that allows backing up virtually all of the copy protected audio CDs. The website defended itself by pointing out to the freedom of speech that is defined in German constitution, but the first-instance district court of Munich ruled that the protection of intellectual property goes before the freedom of speech. The Court decided that direct linking made finding the product much easier and thus increased the danger of copyright violations significantly. However the court also ruled that articles about tools that allow breaking copy protection mechanisms can be published legally, it is just the linking to such tools that can't be done legally in Germany. The court ruled that Heise Zeitschriften Verlag, the owner company of the website pay 500,000 euros in damages to the music industry.

See: http://www.heise.de/english/newsticker/news/58315

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COPYRIGHT
All areas
-ARTICLE: Canada to Implement Internet Treaties with Copyright Act Amendments-
by Jason Young

Last week Canada moved one step closer to dealing with some of the thornier intellectual property issues of the digital era. The proposed amendments to Canada's Copyright Act chart a "made-in-Canada" course to implementing the WIPO 'Internet Treaties', which Canada signed in 1996, turning away from the US and Australian approaches in a number of key areas.
First, the proposed bill would adopt a limited anti-circumvention provision for technological protection measures. That is, the circumvention of a technological protection measure applied to copyright material would only be illegal if it was carried out with the objective of infringing copyright. Legitimate access, as authorized by the statute, would not be altered. The proposal further anticipates that circumvention for the purposes of making private copies of sound recordings would not be permitted.
Second, the amendments would adopt a new exclusive right of "making available". The right would allow copyright holders to authorize the availability of their protected works online, thus making it illegal to passively make available music files over a peer-to-peer network, an evidentiary problem which the Federal Court eliminated last year in its decision in BMG Canada v John Doe [2004] 3 FC 241. The amendments will also clarify the scope of the private copying exemption to explicitly prohibit uploading or further distribution of private copies. Canadians therefore will likely see an increase in file-sharing lawsuits by next year.
Third, the proposed bill would exempt Internet Service Providers from liability for copyright material circulating on their networks over which they have no control or authority, ie, when they act purely as intermediaries. Copyright liability would remain with those persons, including ISPs, who post or transmit copyright material without authorization. This will confirm the recent decision of the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers [2004] 2 SCR 427.
Fourth, a "notice and notice" regime would be adopted under which an ISP would be required to forward any notice it receives from a copyright owner to a subscriber who is alleged to be engaging in infringing activities on-line. The ISP would also be required to retain, for a set period of time, information sufficient to identify the subscriber in question.
Fifth, the amendments would expand fair dealing for educational and research purposes, facilitating the adoption by educational institutions and libraries of new distribution technologies.
Finally, the existing rules on copyright in photographs will be repealed to harmonize the copyright treatment of photographers with those of other creators. Regarding commissioned photographs, those who commission photographs for private or domestic purposes will be able to make certain private or non-commercial uses of the photographs, unless they enter into an agreement to the contrary. The proposal would leave untouched protections of personal information and privacy legislation at the federal and provincial levels, which would continue to apply regardless of the ownership of copyright in commissioned photographs. This had been a major criticism of Bill S-9 introduced in the Senate last year.
The Ministers of Industry and Canadian Heritage issued their joint statement on the proposals in response to a report last year by the Standing Committee on Canadian Heritage which was widely criticized by public interest stakeholders as being too favourable to big content producers. Copyright reform has always been a polarizing issue. These proposals depart significantly from those of the Standing Committee and go furthest yet in tempering the conflicting rhetoric of various stakeholders.
A copy of the Joint Statement by the Ministers of Industry and Canadian Heritage, a backgrounder of the proposed legislation and a series of frequently asked questions can be found here:

See: http://strategis.ic.gc.ca/epic/internet/inippd-dppi.nsf/en/ip01214e.html

© 2005 Deeth Williams Wall LLP. Reprinted by permission of Deeth Williams Wall LLP, one of Canada's leading intellectual property and technology law firms
http://www.dww.com

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COPYRIGHT
Record Labels
-Russian CD plant agrees to pay damages-
Russia's Roff Technologies optical disc plant has agreed a substantial settlement with international recording industry body IFPI and eight member company plaintiffs over the manufacture of counterfeit CDs containing repertoire by major international artists. Settling the case out of court, Roff admitted to having infringed neighbouring rights in the past. The agreement brings to a halt civil court proceedings, which had been brought by IFPI member companies in January 2004. Civil action against CD plants is just one part of the record industry's strategy in Russia. The industry's top priority is stronger cooperation from the Russian authorities in the fight against piracy. Specifically, there needs to be effective regulation of the country's optical disc manufacturing plants; effective investigation and prosecution of pirates by the enforcement agencies; and real deterrent criminal penalties when convicted pirates are sentenced in court.

See: http://www.ifpi.org

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COPYRIGHT/PERFORMERS' RIGHTS
Artists
-Dark Side Of The Moon Claim-
A female vocalist has won an out-of-court settlement for a piece of music recorded over 30 years ago. Clare Torry was paid £30 to perform on Pink Floyd's 1973 album Dark Side of the Moon and was given a written credit at the time for her contribution to the track The Great Gig in the Sky. Torry has taken her claim to the High Court where she has won a half-share on copyright ownership on the song performed from Pink Floyd and EMI and a settlement. Ms Torry had employed a special wailing technique, recorded in a series of sessions, which effectively helped compose the track and it is this which would have been her contribution to the copyright. Dark Side of the Moon subsequently stayed in the charts for the next 26 years amassing sales of 36 million copies. The case is not the only dispute for Pink Floyd, after legal action last December from 23 members of the north London school choir who claimed they were due royalties from their performance on the worldwide hit, Another Brick in the Wall previously reported in Law Updates.

See: http://www.freelanceuk.com/news/1006.shtml

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TRADE MARK
Artists
-Linkin Park Trade Mark application for posters refused-
by Tom Frederikse, Solicitor

The band Linkin Park has lost an attempt to register its own name as a trade mark in respect of the sale of posters. An appeal to the Appointed Person was dismissed, the original objections of the Patent Office Examiner (that the mark lacked "distinctive character" and was "descriptive") being upheld. The American pop group applied for the mark "Linkin Park" for use in marketing of posters of their band and argued that the mark must be distinctive because they had invented the words. However, the Appointed Person cited a 1970 case concerning the word "Tarzan" in which it was held that, by the date of the trade mark application, the word had become well known and had therefore ceased to be an invented word.

The band also argued that, because the words were by themselves meaningless, the mark could not be descriptive. The Appointed Person disagreed, stating that the words were no longer meaningless as they had acquired the well-established meaning of denoting the band in the eyes of the average consumer. As the Appointed Person put it, a person asking "Do you have any Linkin Park posters?" is clearly describing a characteristic of the goods being sought rather than referring to the origin of the goods. Furthermore, it would be difficult for a trader to market competing posters without using the mark to describe them. It should be noted, however, that this example was limited to posters of a musical group and that registration of a band's name for audio CDs would be a different matter. The Appointed Person noted that "use of the words 'Rolling Stones' [on a CD case] . will inform the public that the article is a recording of that group and that it is authorised by them." Furthermore, CD covers also have the alternative protections of copyright which a rightsholder tends to more readily assert. Because consumers are less likely to infer an origin of goods in the case of posters, a line is drawn between "media" and "mere image carriers". Thus, unless a band can show an established reputation for supplying and selling their own "authorised" posters, the band can expect difficulty in registering their name for such purposes.

The full text of the judgment may be accessed via: http://www.patent.gov.uk/tm/legal/decisions/2005/o03505.pdf

This update is © The Simkins Partnership . This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. The Simkins Partnership website is at: http://www.simkins.com

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TRADE MARK/IMAGE RIGHTS
Artists
-Rosa Parks, OutKast and Sony-BMG settle-
Sony BMG and Rosa Parks, who became a symbol for the U.S. civil rights movement when she refused to yield her seat on a segregated bus in 1955, settled her lawsuit over the use of her name in an OutKast song title. The settlement included an agreement that a tribute CD featuring OutKast would be produced later this year by Sony BMG to honour the 50th anniversary of Parks' arrest. The parties will also produce a television broadcast tribute to Parks, he said. Parks, 92, had claimed that the song "Rosa Parks" on a 1998 OutKast album amounted to false advertising under U.S. trademark law and intruded on her rights. OutKast and their label countered that the title was constitutionally protected free speech because it was related to the song's lyric of "everybody move to the back of the bus." The Supreme Court in December 2003 rejected this argument and upheld a federal appeals court decision that permitted Parks to pursue her lawsuit.

See: http://www.nytimes.com/2005/04/15/business/media/15settle.html

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© 2005 Ben Challis