Intellectual Property Law Updates

INFORMATION FOR READERS:
This resource aims to give a brief overview of developments in Intellectual Property law and other areas of law relevant to the music and entertainment industries. Each item is categorised according to relevant areas of the music or entertainment business, and by the date of uploading. Uploads are undertaken regularly and are organised on a monthly basis. These updates are designed to give general information for music and entertainment industry professionals and students interested in these areas. These Law Updates are not law reports or detailed references. Users who would like further information should research the relevant area thoroughly. Relevant references and links are therefore provided.

Law Updates also provides hyperlinks to other sites which may be of use or interest to legal professionals, academics, students and those involved in the music industry. These are provided at the end of Music Law Updates Archive under 'Music Business Law Links'. You will also find all of these links and other hyperlinks on the links page.

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

October 2006

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COPYRIGHT
Music Publishing, internet
MPA goes after fan guitar sites
In January 2006 we asked whether the Music Publishers Association (MPA) was wise to target unauthorized online lyric and music score sites after the Association, which represents US sheet music companies, launched its campaign with MPA president Lauren Keiser saying he wanted site owners to be fined and jailed. Mr Keiser cited the Xerox machine as the first enemy of sheet music and now identifies the internet as a new major enemy. Now the MPA is after guitar fan websites which they say infringe songwriters' copyrights. These give so called ‘tab’ instructions which stands for guitarist tablature which show guitarists where to put their fingers to play a chord and primarily are used by people playing at home. Traditionally tab notations and sequences of chords have been found in books and – understandably – book publishers and authors have been upset when their publications have been copied wholesale onto the internet. But Pinsent Mason’s excellent Out-Law site reports that the MPA and the National Music Publishers' Association (NMPA) have shut down several websites or forced them to remove all tabs using threats of copyright law suits. The sites are typically fan-run and not significant profit-making enterprises and many of the tab notations are worked out by players just from listening to performances of songs. Some legal commentators in the US suggest that tabs generated by users may have free speech protection. The MPA’s Lauren Keiser said that “people can get [tab] for free on the internet, and it's hurting the songwriters" but Guitar Tab Universe manager Rob Balch counters the argument that the tab sites are infringing copyright by saying "at what point does describing how one plays a song on guitar become an issue of copyright infringement? This website, among other things, helps users teach each other how they play guitar parts for many different songs. This is the way music teachers have behaved since the first music was ever created. The difference here is that the information is shared by way of a new technology: the internet." Publishers argue that copyright legislation protects the tablature because they are "derivative works" of the original songs, which means that they enjoy the same protection. But Balch responds to this by saying "when you are jamming with a friend and you show him/her the chords for a song you heard on the radio, is that copyright infringement? What about if you helped him/her remember the chord progression or riff by writing it down on, say, a napkin ... [is that] infringement?"

http://www.out-law.com/page-7235

http://news.bbc.co.uk/2/hi/uk_news/magazine/5305520.stm

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TRADE MARK
Artists
P Diddy settles with DJ Diddy
Sean Combs aka Puff Daddy aka P Diddy has agreed not to shorten his name to just ‘Diddy’ after the threat of a High Court action from Richard ‘Diddy’ Dearlove, a successful music producer who has been using the name since 1992. Mr Dearlove sued Combs after learning that the rap superstar was dropping the ‘P’ from his name. The action was listed for a hearing on the 23 rd October. Combs is meeting £100,000 of Dearlove’s costs (subject to court taxation) and paying £10,000 in agreed damages. Combs will have to re-brand any ‘Diddy’ activities in the United Kingdom.

The Guardian 9 th September 2005 p3

http://www.guardian.co.uk/uk_news/story/0,,1868383,00.html

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TRADE MARK
Artists
US reality show band have problems with name
The makers of the second series of the US reality show Rock Star have run into problems over the name of the supergroup the show is aiming to create. The second series of Rock Star, which was responsible for recruiting a new frontman for INXS in series number one, is looking for a
frontman to lead a new supergroup that will also include Motley Crue's Tommy Lee on drums, former Guns N Roses member Gilby Clarke on guitar and former Metallica member Jason Newsted on bass. The plan was to call the new group Supernova, and as such the show is called Rock Star: Supernova. However, there is already a Californian punk band called Supernova, and they have sued the programme's makers, Mark Burnett Productions and CBS Broadcasting, over their use of their name. With the TV show reaching its conclusion, a judge in San Diego has issued an injunction which bars the programme's makers or the band they create from "performing rock and roll music, or recording, or selling rock and roll music recordings under the same [name], pending a trial of this action on its merits, or until otherwise ordered by the court". It appears that the two parties have now settled with the TV band being called ….. ‘RockStar Supernova’ ! Source CMU Daily

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TRADEMARK
Artists
Setback for Love in Beach Boys name dispute
Mike Love has suffered a set back in his bid to pursue sole ownership of the ‘Beach Boys’ name after Super Court Judge James R Dunn dismissed part of a $2 million lawsuit against ex-bandmate Al Jardine which says that Jardine illegally used the band’s name. Judge Dunn threw out claims of breach of contract and breach of fiduciary duty but gave Love's lawyer a chance to amend the case before it goes to trial on Nov. 6. The suit claims that Love is the only person legally allowed to perform under the name "Beach Boys" but that Jardine had toured with "knockoff bands" using names such as "Beach Boys Family & Friends."

http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003122397

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COPYRIGHT
Record labels, internet
Russia enacts new copyright laws to fight piracy
The Russian parliament has enacted a tough new copyright law designed to crack down on the Internet piracy of text, music and videos. The new law which took effect at the end of August is part of Russia's bid to comply with World Trade Organisation conditions – music piracy is rife in Russia, with hard copy piracy possibly running at 90% of all sales. The Russian parliament originally approved the amendment to Russia's existing copyright protection law in July 2004; it granted website operators that distribute copyright protected content two years to acquire licenses to distribute their MP3 files. The United States has cited notoriously lax protections for intellectual property as the major reason for refusing to endorse Russia's entry into the WTO. The Russian business daily Kommersant claims that 97 percent of music files exchanged online are illegal with just $1 million of sales reported against estimates of real sales of $25-30 million each year. The new law threatens to sentence violators to up to five years in jail.

http://jurist.law.pitt.edu/paperchase/2006/09/russia-implements-tough-illegal.php

http://www.allheadlinenews.com/articles/7004724242

and see the excellent article at http://arstechnica.com/news.ars/post/20060906-7676.html

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COPYRIGHT
Internet, broadcasting, record labels
What will Universal do about YouTube now Warners have joined up?
The strange honeymoon between record labels and websites such as YouTube seems to be in the balance. Universal Music Group Chief Executive Doug Morris hit out at YouTube and other social networking sites claiming they owed record labels "millions". Speaking at the annual Merrill Lynch Media & Entertainment Conference, Morris said: "We believe these new businesses are copyright infringers and owe us tens of millions of dollars. How we deal with these companies will be revealed shortly." The comments were surely aimed primarily at YouTube where large volumes of artist videos and concert footage have been illegally uploaded. Five Eight magazine says that According to 'insiders' on both sides, the major labels are in talks with YouTube about how to remove unlicensed content and also implement a workable business model for licensed content and in stark contrast to what seems to be Universal’s position (though it may be a negotiation tactic of course) Warner Music has become the first major label to formally license its content to YouTube. Last month, YouTube announced an advertising deal with Warner Music as the start-up's first partner for its new Brand Channel advertising to promote the new Paris Hilton album, this new deal will see video content from Warner artists available on the service and will allow users to incorporate music from Warner's catalog into the videos they create and upload. Both parties will share revenue created by advertising, which will be featured around the videos. YouTube said it would use a new advanced content identification and royalty reporting system, set for release by the end of the year, to identify the music videos and help manage payment to the record labels. In reality and whilst a valuable promotional platform, Universal and the other major labels must be looking to avoid the ‘mistake’ they made when MTV was set up - music labels helped build the television channel by providing videos free of charge to promote their artists. Labels saw little of the hundreds of millions of dollars MTV later earned – but maybe the Warner deal is the start of a new business model which might just work in the digital age and

Warner chief Edgar Bronfman Jnr said "Consumer-empowering destinations like YouTube have created a two-way dialogue that will transform entertainment and media forever."

http://www.latimes.com/business/la-fi-uni14sep14,1,2912252.story?coll=la-headlines-business&ctrack=1&cset=true

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COPYRIGHT
Record labels, internet
Record industry keep up the pressure on illegal downloading
Five Eight magazine reports another milestone victory for the music industry in its fight against P2P. Its latest scalp is eDonkey which is paying $30M as a settlement. The service had upwards of 3M users last year. This latest ruling now means that five of the seven major P2P providers targetted by the RIAA in 2005 have made significant payments and effectively been closed down - eDonkey, BearShare, i2Hub, WinMX and Grokster. The ruling on August's legal action against LimeWire is still pending:
http://www.wired.com/news/culture/music/0,71771-0.html?tw=wn_index_13
http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003120853

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COPYRIGHT
Radio broadcasting
ARTICLE LINK – Consumer groups and satellite radio stations lobby on US copyright amendments
A useful update on the latest developments in copyright revision in the USA
http://www.businessweek.com/ap/financialnews/D8K84R4O1.htm

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COMPETITION
Record labels, internet
ARTICLE LINK: US Anti-trust chief takes hands off approach to Apple
As competition and consumer regulators in some European countries prepare to take action against Apple and its DRM software, the US competition chief has a different view.
http://www.marketwatch.com/News/Story/Story.aspx?dist=newsfinder&siteid=google&guid=%7B3845BAAA-EA87-45E3-BA14-7756F8619D75%7D&keyword=

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COPYRIGHT
Record labels, music publishers, film
European Commission to review copyright levies
The European Commission has unveiled plans to set up streamlined systems for copyright levies across Europe. The levies exist to compensate artists and other creators for unauthorized copyright by consumers use - essentially giving consumers permission to make private copies, but in return charges a levy on media and devices used to make them - including photocopiers, cassettes, discs, CDRs and MP3 players. These levies are then passed on to the copyright owning community as compensation for the copying that is assumed to take place. The EC's aim is to make levies more consistent, both across different member states and between different technologies.

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COPYRIGHT
Music publishing, internet
MCPS-PRS challenge basis of eMusic’s pan-European licence
Legal download specialist eMusic has now launched across Europe but a dispute about the validity of their music publishing arrangements has surfaced meaning that Buma/Stemra and the MCPS-PRS are in talks to resolve a contested pan-European licence. eMusic has a licence with Buma/Stemra which it says covers it for Europe but the MCPS-PRS is disputing that Buma/Stemra has the right to offer such a pan-Europe licence:
http://www.billboard.biz/bb/biz/newsroom/global/article_display.jsp?vnu_content_id=1003123582

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COPYRIGHT
Artists
SoundExchange list unpaid artists
SoundExchange (which is in charge of collecting and distributing broadcast royalties in the US) has published a list of artist it “can't find” and to whom royalties should be paid. If the monies are not disbursed, SoundExchange retains the monies remaining. It has been reported that SoundExchange worried about publishing the list for fear that "middlemen" would try to swipe a piece of the action by connecting artists with their royalties. Artists listed include Cassandra Wilson, Jeff Buckley, Booker T & the MGs and Public Enemy:
http://www.boingboing.net/2006/09/21/exriaa_agency_cant_f.html
http://63.236.111.137/jsp/unpaidArtistList.jsp

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MEDIA
Broadcasting
Islamic Courts ban western music in Somalia
The Union of Islamic Courts, which now govern large parts of Somalia, have extended their influence into Somalia’s media by prohibiting the broadcast of Western love songs in areas of the country that they control. The UIC had previously banned broadcasts of the World Cup and cinemas are now censored, with many closed for showing "un-Islamic movies” such as Bollywood films. Night clubs have been shut down and many aspects of social life have been ‘Islamized’. A wedding party was stopped because beer was being served, women and men were openly socializing together and the wedding band was playing what were deemed "filthy songs". In September the Union banned the broadcasts of Western pop music and love songs. A radio FM station in Jowhar, an airport town which lies 90 kilometers from the capital of Mogadishu was shut down for airing "music and love songs," according to an Islamic official Sheik Mohamed Mohamoud Abdirahman. In a statement issued on Saturday, and later read on several radio stations, Abdirahman wrote: "We are here by announcing to suspend temporarily the work of the Radio Jowhar from 9 p.m. local time and forbid releasing all music which is a big crime according to the Islamic religion …. It is useless to air music and love songs for the people," the statement added. It also warns that anyone who dares to violate the music ban will be punished according to Islamic law. This includes a fine, flogging, a jail term or arrest. He further explained that Radio Jowhar was closed because the Islamic Court determined that its programs were very un-Islamic and were in fact inflicting "cancer on the people." The station has now re-opened but with no music. The UIC are part of a fundamental movement that aims to transform Somalia into one Islamic nation, ruled by Sharia law.
http://news.bbc.co.uk/2/hi/africa/5334258.stm

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MEDIA
Artists, broadcasting
Buckcherry accused of featuring a minor in video
US rockers Buckcherry are facing a lawsuit over allegations that they enticed an under aged girl to appear in a raunchy video for their song 'Crazy Bitch', which was then posted on their MySpace site. The girl in question, who was under 18 when the video was shot, appears topless, kissing another girl and writhing against a pole. She also appears and is named in a ‘behind the scenes’ video shot on the set. The girl and her mother are now suing the band saying that they plied her with alcohol before enticing her to perform in the pop promo, and that she has suffered "emotional stress". The band run the risk not only of having to pay compensation if they loose the civil suit but also facing a serious criminal charge of enticement of a minor. The band are not surprisingly disputing the claim pointing out that the girl, known only as Jane Doe, used fake ID to enter the video shoot, that it was made clear in advance that the shoot was strictly for over 18s only and that she voluntarily took part in the scenes seen in the original video. The band's manager told reporters that "there was every opportunity for her not to be in that video. For whatever reason, the girl subverted those efforts, and now her mom is trying to blame everyone but her." The band's lawyer has issued the following statement regarding the case reinforcing the band’s own statement saying: "the claims in this case are completely bogus. This woman obtained access to the video shoot by using a phony ID. Strict precautions were taken to insure that only people over the age of 18 would gain access to the shoot. The casting ad called for talent over 18 only, signs were posted to that effect at the venue and IDs were checked. This person signed a talent release form and verified her age by writing what we have now discovered to be a false birthdate on the release to match her phony ID. She was later seen boasting into the camera about her exploits in the video. This lawsuit was filed almost a year after the video was shot, following the financial success of the band. We are going to defend this action vigorously and let the evidence speak for itself." A new version of the video has since been edited without the girl in question. Her lawsuit names the band and their management, as well as Warner Music (and Atlantic) even though the band weren't signed to the major at the time the video was shot.
http://www.artistdirect.com/nad/news/article/0,,3777942,00.html

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