COPYRIGHT Record industry, film industry
Custodial sentences for family counterfeiting business
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
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COPYRIGHT
Record industry, film industry
Custodial sentences for family counterfeiting business
According to the British Phonographic Industry (BPI), counterfeiting costs the music industry £165m a year in lost sales as part of a total loss to piracy , including illegal downloads and file swapping, of something approaching half a million pounds in the UK and so it’s no surprise that the BPI has welcomed prison sentences for the ringleaders of what was one of Britain's biggest and most extensive counterfeiting gangs. Sentencing after a BPI private prosecution at Durham Crown Court, His Honour Judge Hewitt, said "It is clear that this was a substantial operation, on a much greater scale than just friends and family. It caused an incalculable loss to the industry and would have continued had the industry not taken this action." After a two week trial, ringleader James Glen Cowan, 41, was yesterday jailed for 2 years for conspiracy to defraud, tax evasion and benefit fraud. His wife, Ann Cowan, 38 was found guilty of conspiracy to defraud, benefit fraud (up to £30,000) and attempting to pervert the course of justice. She received a 9 month sentence suspended for 12 months and also has to spend 150 hours working unpaid in the community. The judge told her she only escaped prison because she was the mother of two young children. Andrew Wood, 36, pleaded guilty in January and was jailed for 12 months for conspiracy to defraud and tax evasion. Confiscation proceedings to seize assets are underway and due to be heard in court in July 2007. The sentences were handed down after the court heard that the trio's extensive counterfeiting operation - a criminal enterprise concealed behind a local video store - may have involved dozens of people and generated in excess of £1.5m over five years. British record industry body, the BPI, brought a private prosecution after a routine operation led to the unveiling of an extensive and sophisticated counterfeiting operation. The BPI worked closely with film industry body, FACT, whose investigators assisted with the raids and gave evidence.
Video Drive in the seaside town of Horden, County Durham, looked like an innocuous family run film rental store in a small close-knit neighbourhood. But the court heard that the gang used the store, owned by Andrew Wood, as a front for an extensive counterfeiting ring that the BPI believes was earning tens of thousands of pounds a week at its peak. The Cowans had converted their family home and their caravan into ad-hoc factories that would have been able to produce hundreds of counterfeit CDs and DVDs every hour. This case follows on from the cases against since Paul Canning and Mark Bailey in 2005 who each received three and half year custodial sentences in April 2005 for their role in masterminding a ten-strong gang that earned £1.2 million during a counterfeiting scam.
BPI estimated total loss to the music industry from piracy in 2005 at £414 million
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COPYRIGHT
All areas
ARTICLE LINK: Fair Use It or Lose It - Copyright owners’ threats erode free expression
By Marjorie Heins
An excellent article on the doctrine of fair use in the USA http://www.fair.org/index.php?page=3066
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COPYRIGHT
Internet
ARTICLE LINK: The Impact of the Groskster decision on file sharing
By Odia Kagan
As the law suits against YouTube mount up (led by Viacom’s billion odd dollar claim) this article is a timely reminder of the Supreme Court decision in MGM v Grokster and the decision’s effect on file sharing in the US. The Author (a lawyer qualified in Israel, the USA and the UK) also looks at the position of illegal file sharing in Israel.
http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=1715
also see the excellent article ‘Peer to Peer Music Sharing since MGM v Grokster [2005]’http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=0873BD96-349E-479B-B667-F0928B35B5C7
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COPYRIGHT
Internet, music publishing
ARTICLE LINK – Are Songwriters double dipping? By Steve Gordon
Should songwriters get paid for a public performance when you download a song? Well US publishing bodies ASCAP and BMI have brought a case in New York asking for this right
http://www.theregister.co.uk/2007/04/13/steve_gordon_performance_royalties/
But a summary Judgement by Federal Judge William Connor has left ASCAP reeling after he ruled that the act of downloading a music file does not constitute a public performance of a song, stressing that "a person must be able to perceive the song as it is being transmitted" for it to be considered a performance. Digital music services AOL, RealNetworks and Yahoo! won the summary judgment after objecting to proposals put forward by ASCAP to include a performance fee for downloads. As a result of the judgment the services are not required to pay royalties for downloads to the performing rights organisation. The case goes forward to trial on 21st May.
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MEDIA LAW
Internet
ARTICLE LINK Trespass - An Ancient Legal Doctrine Gains Traction In Cyberspace
By Eric Sinrod
Fed up with commercial spammers invading your inbox, unauthorized deep linking to your website, spyware on your PC or finding out that someone is using your server to send out spam – well here Eric Sinrod explains that the ancient legal doctrine of trespass to chattels which establishes liability when one person dispossesses or causes physical harm to the chattel (private property) of another person can be useful in Cyberspace. As Information technology development continues to advance at an astonishing pace, and with the law evolving at a much slower rate, traditional legal theories have had to be dusted off to grapple with Internet disputes and the best example is the application by the courts of the trespass to chattels notion to the new world of the Internet. Cases reviewed include AOL v IMS, AOL v LCGM, Compuserve v. Cyber Promotions Kerrins v. Intermix Media and Ticketmaster v. Tickets.com
http://technology.findlaw.com/articles/00006/010761.html
See the Article Internet Trespass: Measuring and Controlling Internet-Distributed Advertiser-Funded Content Music Law Updates April 2006 and a review of Kerrins v Intermix Media Music Law Updates March 2006
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HEALTH & SAFETY / LICENSING
Live Event Industry
ARTICLE LINK – Ticket Touting – the Great Rock & Roll Swindle
“The city is wrapped in spring smog as a queue snakes its way around the Forum in Kentish Town. Even here in grubby north London, at 7pm on a weekday evening, with the modest attraction being the indie jangle of the Shins, every ticket has been sold. Except, of course, they haven't. Easy to spot in the forest of skinny jeans are the oversized sports jackets and white trainers of the ticket touts, selling and reselling for a tasty profit ……. A useful article on touts – old style and the new bedroom tout using eBay and other online sites to sell tickets at often vast profits. ….” See the full article at
http://music.guardian.co.uk/rock/story/0,,2050841,00.html
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TRADE MARK / IMAGE RIGHTS
Merchandising
Beach Boys lose case to reclaim memorabilia
Former Rock 'n Roll musician Roy A. Sciacca has won a victory against The Beach Boys’ company, Brother Records, when Judge Manuel L. Real of the United State District Court for the Central District of California turned down a $60 million lawsuit. The lawsuit accused Sciacca of stealing a treasure trove of original Beach Boys lyric sheets, sound recordings, videotapes, photographs and other items from a warehouse in 1994. Sciacca is an avid collector of memorabilia. Following the $1.25 million sale in 2005 John Lennon hand written lyrics, Sciacca contacted auctioneer CooperOwen's Music Legends to arrange the sale of some of The Beach Boys' original lyric sheets and other items he had purchased at a warehouse sale in the 1980s. This alerted Brother Records who filed the lawsuit claiming, among other things, copyright, trademark, and right of publicity infringement. Judge Real ruled that there was no evidence to suggest that Roy Sciacca and warehouse owner Allen Gaba had stolen the memorabilia and Sciacca is now free to sell the items.
See http://www.sys-con.com/read/359811.htm
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COPYRIGHT
Internet
US webcasters fail to have new royalty rate overturned
A panel of copyright judges has dismissed US webcasters’ appeal to re-consider the new online music royalty rates which were set last month by the US Copyright Royalty Board. The CRB controls the royalty rates for US music services. The only leniency offered to the
webcasters was a decision to put off the proposed change in the way fees are calculated - from an 'average listening hours' system to a 'per-song, per-listener' system - for a year. The change in the will itself also increase the amount of royalties webcasters will have to pay for music and sound recording rights. The webcasters can now appeal the matter to the US Court Of Appeals for the District Of Columbia Circuit, but that this will take at least a year.
CMU Daily
See Law Updates April 2007 and http://www.dailytech.com/article.aspx?newsid=6361&red=y
and http://www.betanews.com/article/Record_Industry_Proposes_Huge_Streaming_Royalty_Fees/1173216492
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COPYRIGHT
Internet, record labels
RIAA v Santangelo rolls on
The long running litigation in the case(s) between the Recording Industry Association of America and various members of the Santangelo family rolls. The action stated with a suit against Patricia Santangelo, the American mother accused of illegally sharing music via her PC. Launched in 2005 the case has been problematic for the RIAA from almost from the word go because it quickly became apparent Santangelo herself had clearly not shared any music, and attempts by the industry association to suggest the mother should and could be held
liable for any filesharing committed by her children or their friends on her home PC were generally rejected by the courts. The RIAA then dropped the case to concentrate of Ms Santangeo’s children and did obtain a judgment in default against Patricia’s daughter Michelle. Patricia’s son, teenager Robert, is still fighting his case. But in a new the federal judge considering that application to dismiss the case against Patricia has only agreed to dismiss the case 'with prejudice' meaning that the RIAA can not now launch future proceedings against Patricia and they may be open to a claim for Patricia’s legal costs in defending the action – something another mother unsuccessfully targeted by the record industry, Deborah Foster, succeeded in doing earlier this year (although the RIAA is in the
process of appealing that decision).
CMU Daily http://www.cmumusicnetwork.co.uk/daily/archive.html
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COPYRIGHT
Television
MPS v Murphy: The legality of pubs using foreign satellite signal goes to the High Court
Karen Murphy was convicted under s297(1) of the Copyright Designs & Patents Act 1988 for showing Premiere League football matches in her pub using a legitimate Greek satellite service, Nova The conviction was upheld at Portsmouth Crown Court but Murphy has now lodged an appeal with the High Court. The Crown Court in MPS v Murphy came to a very different decision to the Crown Court in FACT v Gannon on the same basic facts meaning it will be up to the High Court to decide whether or not the section in question is relevant for prosecution. The case has also thrown up the interesting fact that whilst Sky is taking action against UK landlords and licensees using the Nova signal to protect its UK market, Sky’s ‘UK’ signal is of course picked in numerous pubs and bars in Spain, Portugal and France and used in competition to official broadcasters in those territories who have licensed English Premiership football for their countries from the FAPL (the UK premiership rights licensing body). So in a world of ‘Television Without Frontiers’ the FAPL may need to look at how it licences its football matches in the future.
http://www.morningadvertiser.co.uk/news_detail.aspx?articleid=29946&categoryid=9001
For the views of the Association of European Satellite Supplier & Installers see http://www.aessi.org/press/index.html
Television Without Frontiers EU Directive 89/553/EEC ( Directive 89/552/EEC ). http://ec.europa.eu/comm/avpolicy/reg/tvwf/index_en.htm
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CONTRACT
Artists
Busted bust up still a dust up
The Universal Music Group has been brought the legal action involving former UK chart topping boy band Busted which has been brought by two former members Ki Fitzgerald and Owen Doyle who were axed before the band became successful. The label is added as new matters include allegation that the axed members' vocals appeared in on the band’s 2002 album Busted released by the major. Fitzgerald and Doyle have already claimed that they were integral in the creation of the Busted franchise, coming up with the name and co-writing some of the band's early hits. They claim they were unfairly cut out of the equation by manager Richard Rashman and that Rashman failed to fulfill his contractual commitments as a manager to protect their interests by making them sign agreements on their departure that greatly favoured Rashman and remaining band members, James Bourne and Matt Willis. Fitzgerald and Doyle's 2005 legal action seeks a cut of the royalties from the band's early songs and trademark use. Rashman, Bourne and Willis are named as defendants. The claimants are also looking at the band’s US trade mark registration which is allegedly held in Rashman’s personal name. The High Court has ordered evidence to be submitted by July for a trial start date of 1st Feb 2008.
See comment at http://www.popjustice.com/index.php?option=com_smf&Itemid=237&topic=4997.msg80545;topicseen
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COPYRIGHT
Internet
Yahoo! China must remove links to illegal websites
A Beijing Court has confirmed that Yahoo! China has clear responsibility for removing all links to websites hosting infringing download tacks tracks on its service. Yahoo's China website, operated by Alibaba.com, has been ordered to pay the compensation of 210,000 yuan ($27,000) for copyright violations and must delete links to 229 songs on nonaffiliated sites by the Beijing Second Intermediate People's Court. About 85 percent of recordings in China are illegal, with sales of pirated music worth $410 million in 2005, according to the International Federation of the Phonographic Industry, the industry group that brought the claim. EMI, Warner Music Group and nine other record companies sued Yahoo China in March claims the service violated copyrights by allowing users of its search engine to find links to pirated music. The music industry had previously lost a similar case in China (although on first appeal) against Baidu – a leading Chinese links/search site. That case is being appealed again and the IFPI are obviously hoping that the Yahoo! case, decided under new Chinese regulations, will prove a valuable precedent in the Baidu appeal. www.ifpi.org
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COPYRIGHT
Record labels
AIM to challenge suggested private copying right
The proposals in the Gower’s report on IP that the UK’s copyright should be changed to allow for a private copying rights are being challenged by AIM, the association of independent labels who say that such a move could ‘open the floodgates’ to other copyright infringements and would damage artists, labels and music publishers. Whilst accepting the practice is widespread, AIM is lobbying the UK Government against any change in the law (which only allows copying of TV and radio programmes for ‘time shifting’ and say they will take the matter to the European Commission if necessary.
http://www.digitalspy.co.uk/music/a45651/indie-labels-warn-over-copyright-change.html---------------------------------------------------------------------------------------------------------------
© 2007, Ben Challis