COMPETITION Record labels
BMG-Sony merger re-approved as AIM questions Universal’s label acquisitions
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 sits as a magistrate in Cumbria, England.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
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COMPETITION
Record labels
BMG-Sony merger re-approved as AIM questions Universal’s label acquisitions
The European Commission have now formally re-approved their July 2004 merger approval of Sony and BMG’s record labels which was annulled in 2006 by the European Court of First Instance. The EC Competition Commissioner Neelie Kroess said that the “investigation represents one of the most thorough analyses of complex information ever undertaken by the Commission" adding that "It clearly shows that the merger would not raise competition concerns in any of the affected markets." But in the same week UK independent labels trade body the Association of Independent Music, which is part of IMPALA, the European trade body which first complained about the Sony-BMG merger, responded to a request for information from the Office of Fair Trading (OFT) regarding Universal’s “creeping dominance” of the UK recorded music market. Having already complained about the Sony-BMG merger which put 80% of the recorded music market into the hands of just four companies (Universal, Sony-BMG, Warners and EMI), AIM are now citing Universal’s recent acquisition of two of the UK’s largest independents, V2 and Sanctuary Records as evidence of Universal’s “progressive expansion” which will “further marginalise the independent sector, serving to stifle competition and narrow consumer choice”. Market consolidation means that only 20% of sales are now from indies, down from double that in the late 80’s. AIM says that the major’s dominance results in restricted access to market for smaller companies and that the tying up of radio play and music TV slots, retail space, online visibility, TV, radio and print advertising makes it harder for independents to compete and enables consumers to see and hear less music through these key channels. AIM also say that the pattern is replicated across Europe, where Belgian independent ARS Entertainment , Spain’s Vale Music and Sweden’s Lionheart E Group were all recently acquired by Universal. Universal called the comments by AIM "misleading," stating that it had voluntarily filed its submission to the OFT back in September. And in Europe, European independent trade association Impala has asked the European Commission to examine the publishing divestments related to the Universal Publishing/BMG Music Publishing merger. The trade body is concerned that independent cash buyers will be excluded from bidding for publishing assets such as Rondor UK, Zomba US and UK, 19 Music and BBC Music.
http://news.bbc.co.uk/2/hi/business/7025803.stm
http://tinymixtapes.com/Sony-BMG-Merger-Approved-for-the
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COPYRIGHT
Record labels, internet
RIAA finally gets a filesharing conviction in the US
The Recording Industry Association of America's much criticised campaign against individuals who take part in illegal filesharing which costs the industry billions of dollars has finally resulted in a high profile conviction when a jury at the Duluth Federal Court ordered Jammie Thomas to pay the labels $222,000, the sum of $9,250 for each of 24 songs for which the companies sought damages. The lawsuit accused Thomas, a single mother of two, of sharing more than 1,700 songs on the peer-to-peer file sharing network Kazaa. The suit contended that Thomas violated the Digital Millennium Copyright Act by distributing songs for free that belonged to the record labels. The labels' international trade body, the IFPI, estimates that 20 billion tracks are downloaded illegally each year and that only 795 million tracks were legally purchased - a ratio of 25 illegal downloads to each legal one. Over 10,000 people in 18 different countries have been threatened with legal action. The legal download market, worth about £1 billion ($2 billion) is worth about 10% of the total market value in recorded. The Head of Sony-BMG litigation, Jennifer Pariser, who testified during the trial made the industry’s position clear saying "it is important for Sony BMG to combat this problem, If we don't, we don't have a business”. The case was brought by SonyBMG, Arista Records, Capitol Records, Interscope Records UMG Recordings and Warner Bros. Records. In Washington, D.C., the Recording Industry Association of America issued a statement that the jury's decision affirms "that the law is clear, as are the consequences for breaking it. ... We will continue to bring legal actions against those individuals who have broken the law".
http://www.startribune.com/467/story/1464264.html
Democrat Congressman Rick Boucher, criticising the excessive quantum of the award added that rather than suing people Congress should reform the section 115 licence to aid legal downloading and more interestingly added ”I really think the time has come for the recording industry to consider some form of blanket license arrangement that would apply fairly broadly across our society. There are early examples that are very successful for voluntary blanket license arrangements, and what I had in mind are the contracts that the record labels have entered into with a number of universities in this country. Through those contracts, universities pay a lump sum on an annual basis to the record label, and in return for that lump sum payment, the students at that university are able to download and file share among themselves as much music as they want. Given that success and that some amount of illegal file sharing is destined to continue, i think the time has come for the industry to explore some broader applications of that blanket license arrangement. I'm not going to suggest how that can be expanded. Contracts could be entered into with the major ISPs. A blanket arrangement could be entered into with Verizon for example with its DSL and FIOS services, or with AT&T for its broadband services. It could be entered into with even smaller ISPs, whereby for a blanket sum, a lump sum payment, the users of those Internet services would be able to download music from those labels, or from other sites that offer the music.”
CNET http://www.news.com/8301-10784_3-9792154-7.html?tag=nefd.only
It is likely the case will be appealed: See the excellent CNET article by Declan McCullagh at
http://www.news.com/8301-13578_3-9793438-38.html?tag=nefd.pulse which reviews the legal background to the case and in particular whether ‘making available’ copyrighted material can be an infringement in the USA.
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COPYRIGHT
Record labels
Radiohead and Charlatans ‘give away’ albums: the end of the label (for some)?
by Marc P Holmes
In the space of a few days, two of the UK’s most enduring rock acts have announced plans to ‘give away’ their latest albums. Radiohead, in a cunning experiment have led fans into a moral maze and will allow consumers to name their own price starting from £0.00, thus either entrapping their fans into admitting that they’ve never paid for a single one of their albums, or else giving those who would have downloaded the music anyway the best possible quality copy of the work. In the ake of the announcement the band’s website crashed as it tried to cope with demand. An Xfm survey pitched up with 40% saying they would pay nothing, 30% plumping for £10 and the rest suggesting other figures. The Charlatans, for their part, are giving their latest efforts away as part of an XFM sponsored free download, accompanied by the hyperbolic language of a ‘revolutionary…groundbreaking first’, with the predictable anti-label (but not anti-copyright) lip service being paid by another band that coincidently happens to no longer have a major record deal. What does it all mean? The moves appear to signify that, once released from the their contracts, successful artists are becoming more willing not only to accept publicly that the income from record sales alone has been decimated by filesharing, but also actually do something about it. Depending on which way one looks at it, it either strikes another blow at the heart of an already weakened copyright regime struggling to adapt, or effectively takes those IP rights back into the hands of the artist who then consents for them to be given away. Unfortunately, the change may appear more cosmetic than anything else, with the alternative reality for now being the label owning the copyright, actively condemning filesharing, which then occurs anyway.
However, and more interestingly, it the events hint further at a world where, no longer in need of a label due to sufficient notoriety, an artist will shed the restrictions imposed by its contract, and enter a new period where it can maximise income from touring and merchandise, giving up altogether on revenue from record sales. For the time being, the irony of all this, at least as far as these two bands are concerned, is that the publicity budget that they no longer have - being out of contract - has effectively been secured for nothing with almost universal reporting of the moves in the newspapers and music press.
What is for certain is that this symbolic ‘dumping’ of the record label is a luxury that the vast majority of acts will not be able to afford, however, it gives a glimpse of the major label bosses’ worst nightmares - that there may come a point in a band’s career when labels are no longer a necessity. Ultimately, the problem still remains: how to compensate labels for much of the popularity that may be owed to them in the first place? It will be interesting to see how this manifests itself in contractual terms, especially at a time when the oppressively long and controlling recording contract is considered all but dead and buried by the courts.
Five Eight magazine (10/10/07) add “with both Oasis and Jamiroquai possibly set to follow suit. Trent Reznor of Nine Inch Nails has just declared his band a "free agent, free of any recording contract with any label" after 14 years of industry attachment. Is the sale of concert tickets and merchandise the only future for music now and just how can emerging artists fit into this brave new world? Or is this new world not so brave at all and merely a means of promoting acts that are approaching the end of their sell-by date and who are struggling to disguise the patches of mould”
http://www.xfm.co.uk/Article.asp?b=news&id=485685
http://canadianpress.google.com/article/ALeqM5h16r7SFfT_k1UhCaWhO2ziNGLeLg
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COPYRIGHT
Internet
Swiss parliament approves downloading for ‘personal use’.
By Marc P Holmes
Just as Germany makes copying for personal use illegal, Heise have reported that the Swiss Parliament has passed new federal legislation dealing with the sharing of ‘copyright and related intellectual property rights’ over the internet. The effect of this legislation is that, providing files shared are for ‘personal use’, the act of making a copy by downloading will not be illegal. In addition, the Act stresses that ‘access and copy-protection measures must not be circumvented’, which suggests that only files uploaded and shared by the author would conform to this definition.
It would seem that over seven years since the explosion of Napster and others, during which time ‘filesharing’ and ‘downloading’ have become popular euphemisms for the mass breach of copyright, legislators still insist on buying into two fallacies: Firstly, that they can actively encourage a watertight, author-endorsed sharing of works without the risk of all sorts of other files being shared via the same platform without the author’s consent, and secondly that by legislating a national policy on filesharing, this somehow excludes (or simply does not take into account) all content being downloaded by fellow countrymen originating from a myriad of different international locations. Perhaps unfortunately from their point of view, the internet was not christened ‘the intranet’ on its inception – limiting all content to within national borders – thus, it seems fairly futile to now try and declare a certain web-based practice illegal or legal in one country alone. In almost a decade since the first server-client filesharing programmes came into use, music as a readily downloadable medium is continuing to make a mockery of the vast majority of copyright legislation, as well the entertainment industry’s official stance on filesharing activity. Making downloading legal for ‘personal use’, a policy that French courts also appear to be sympathetic to (albeit there within a clearer potential collective license framework), still looks like a clumsy extension of the English ‘fair use’ principal. After all, unless you are DJing on a nightly basis to hundreds of people, or holding downloaded album listening parties for everyone in your apartment block, what else is listening to music for other than for ‘personal use’?
http://www.heise.de/english/newsticker/news/96732
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TRADE MARK
All Areas
UK Trade Mark Law Changes
By Tom Frederikse, Clintons
UK trade mark law has changed so that the UK Registry will no longer block applications for being identical or similar to existing registrations. From 1 October 2007 under the Trade Mark (Relative Grounds) Order 2007, existing trade mark holders will carry the burden of trying to oppose (or negotiate around) any application that may threaten their registrations, without assistance from the government beyond a single alert notifying them of a possible threat. This is good news for new applicants and bad news for existing owners of UK trade marks.
Until today, a new UK trade mark application had to overcome the twin hurdles of being both a registrable mark (i.e. distinctive, not descriptive or generic, not offensive or deceptive – known as “Absolute Grounds”) and being not identical or confusingly-similar to an existing mark in identical or similar classes of goods and services (known as “Relative Grounds”). The UK government, wishing to harmonise with the EU’s “Community Trade Mark” process (and, presumably, also to save costs), will now no longer refuse to register a mark on Relative Grounds unless a successful “opposition” is raised by the owner of an earlier mark.
Each new application will now be compared to the Register and notice of any likely overlap with an earlier registered trade mark will be sent to the relevant UK trade mark owners. Owners of a European-wide Community Trade Mark will not be notified at all unless they “opt-in for notification of conflicting later-filed marks” (for a cost of £50 for three years). This notification process carries no guarantee (and, in any case, always depends on good mail delivery) and all trade mark owners should therefore consider subscribing to one of the UK “watching services” to help ensure no threatening applications are missed.
Those applying for a new UK trade mark are now in a much better position as their application can only be blocked by an owner of some earlier right if that owner learns of the new application and takes action in time – not to mention the matter of obtaining proper advice and running a successful opposition case.
The recently-renamed Intellectual Property Office hopes the new system will create new room for “co-existence” between trade mark owners and will foster quicker commercial resolution of disputes. But, whilst it is likely that the main trade mark battles will continue to be fought over “who had earlier rights”, this new law raises the unsettling likelihood that (following some lost mail or oversight) the UK will soon see two registrations for the identical mark for identical goods and services.
The new law means that businesses looking to register their name or logo now face an easier process and those already holding a trade mark registration face the added worry of having to remain vigilant to any and all newcomers in their area of business.
The full text of the new law may be accessed via: http://www.opsi.gov.uk/si/si2007/draft/20077018.htm.
This article contains general information about English (or other) law. It does not contain legal advice. Clintons www.clintons.co.uk
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COPYRIGHT
Artists, record labels
ARTICLE Link – the most illegal album ever?
One artist’s take on the ‘fair use’ doctrine and sampling in the USA
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COPYRIGHT
Music publishing
PRS bring lawsuit over garage radios
The Performing Rights Society is to bring an action against the tyre and exhaust fitting chain KwikFit as apparently staff play radios which can be overheard by colleagues and customers and the chain doesn’t have a licence for the public performance of songs from the PRS. At a procedural hearing at the Court of Session in Edinburgh a judge refused to dismiss the £200,000 damages claim. In PRSvHarlequinRecord. Shops Ltd (1979) 1 WLR 851 It was held that music played over loud speakers in a record shop was a public performance and in Ernest Turner Electrical Instruments Ltd v PRS ([1943]1 Ch 167 the playing of music to workers in a factory was held to be a performance although here of course the sound recordings and songs are performed at least initially via the (very loud?) fitter’s radios.
http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/7029892.stm
http://www.musicforlondon.co.uk/MusicContractsSite/copyright_uk_second_part.htm
see also Australian PRA v Commonwealth Bank (1992) 25 IPR 157 and PRS v RangersClub (1975) RPC 626.
The IP Kat adds this:
According to PRS, Kwik-Fit employees "routinely use personal radios at work in such a way as to make copyright works audible to colleagues and customers alike. This, it is said, constitutes the "playing" or "performance" of such works "in public" for the purposes of section 16 of the Copyright, Designs and Patents Act 1988, and renders the defenders guilty of copyright infringement either directly or through others authorised by them. Alternatively, the defenders are charged with infringement under section 26(3) of the same Act, by permitting employees to bring personal radios on to the premises in the knowledge, or with reason to believe, that infringing acts were likely to occur".
Kwik-Fit - who for 10 years have had a formal ban on employees taking their radios to work - sought dismissal of this action as irrelevant or as not providing fair notice of the case they have to meet. Lord Emslie however allowed the action to proceed. He said, in relevant part:
"[8] In my opinion there is some force in the defenders' contentions regarding lack of specification in the pursuers' [claimant] averments. By way of illustration, I think that the precise conduct alleged against the defenders themselves could have been more clearly and specifically averred; more could have been said about the degree of audibility of music played at different premises at different times; the same applies to the extent to which copyright works were involved; and explicit averments might have been included as to the defenders having done or authorised infringing acts, or as to their having permitted the use of personal radios in the workplace in the knowledge, or with reason to believe, that copyright infringement was likely to occur. However, looking broadly at the pursuers' averments as a whole, I am not persuaded that they are irrelevant in the sense that, if they were all fully proved, the case would nevertheless be bound to fail. Equally, it does not seem to me that the defenders are currently denied fair notice of the case against them to such a degree that dismissal, or partial exclusion from probation, could be regarded as a realistic option.
[9] As characterised in the course of the debate, the pursuers' allegations are of a widespread and consistent picture emerging over many years whereby routine copyright infringement in the workplace was, or inferentially must have been, known to and "authorised" or "permitted" by the defenders' local and central management. If that picture were to be satisfactorily established after proof, it is in my view at least possible that liability for copyright infringement would be brought home against the defenders under either or both of sections 16 and 26(3) of the Act. At this stage, certainly, such an outcome cannot be ruled out, especially in circumstances where the true scope and application of the law regarding the "playing" or "performance" of copyright works "in public" have not been explored in argument. On relevancy grounds, therefore, the pursuers are in my view entitled to the inquiry which they seek. Having reached that conclusion, however, I am not to be taken as accepting that, on proof of the averments in question, the pursuers would necessarily succeed in their claims against the defenders. In the course of the debate various hypothetical situations were figured in which charges of copyright infringement might arguably go beyond the contemplated scope of the legislation and/or offend against common sense. Whether, in the event, any such difficulties materialise in this case will depend on how the evidence turns out at the proof.
[10] Reverting to the defenders' complaint of a lack of fair notice, it seems to me that, with the assistance of the incorporated schedule, they now know the scale and geographical extent of the picture which the pursuers seek to paint against them. They also know from the associated averments that the pursuers are offering to prove consistent findings on each recorded inspection visit, to the effect that copyright works played on personal radios are routinely audible to the workforce and customers alike. In addition the pursuers offer to prove a long-term state of awareness on the part of the defenders' central and local management from which inferences of "authorisation" and "permission" may legitimately be drawn. Against that background, it is hard to see what further notice the defenders can now truly require, bearing in mind that formal averments of the statutory wording of sections 16 and 26(3) of the Act would tell them nothing that they do not already know. The defenders fairly acknowledge that proof of every single instance of alleged infringement might be an unwieldy and excessive exercise, but for the pursuers it was stressed that without some agreed identification of a representative sample for the purposes of proof there might be little alternative but to go the whole way. At this stage, ... I am not persuaded that the court can or should curtail the pursuers' freedom to lead evidence, if they have to, on all of the matters particularised on Record and in the incorporated schedule.
[11] Finally, as regards the defenders' averments of their long-standing company policy prohibiting the use of personal radios in the workplace, I am satisfied that they are relevant to go to inquiry and that the pursuers' challenge is not well founded. At the very least, as it seems to me, the existence of such a policy must be one of the many factors to be considered in any assessment of the defenders' alleged responsibility for primary or secondary infringing acts".
The IPKat looks forward to the ruling at trial, noting the decision of the Danish Supreme Court in Marius Pedersen A/S v KODA [2007] ECDR 15 that an employer was not carrying on a public broadcast of copyright-protected work even if it supplied its employees with radios and players at the workplace
http://ipkitten.blogspot.com/2007/10/fit-to-sue-forthcoming-aippi-talk.html
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COPYRIGHT
Artists, sound recordings
Wu Tang Clan get Beatle’s ‘sample’
The Wu Tang Clan have been given permission to sample a Beatles track having been given clearance to use the George Harrison composition ‘My Guitar Gently Weeps' off the 'White Album' (famously illegally sampled on Dangermouse's 'Grey Album'). However the band make it clear on their website that the use is a ‘replay’ – a re-recording and then INTERPOLATION of the classic George Harrison composition. Dhani Harrison, son of George, through his friendship with the RZA, played guitar on the song and he himself helped secure the reuse license of the song. The sample forms part of the Wu song 'Gently Weeps', off the rap collective's new album, '8 Diagrams'. The Beatles, through Apple Corp, have been famously reluctant in granting any master tape licences for sound recordings by the Band.
CMU Daily 4 th October 2007 http://www.thebeatsbar.co.uk
http://www.mtv.com/news/articles/1571487/20071009/wu_tang_clan.jhtml
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CONTRACT
Artists
Genuwine litigates to get out of ‘fraudulent’ contract
Ginuwine has filed a lawsuit filed in Manhattan's state Supreme Court saying that he was duped into signing a contract in May 2007 with a company, the King Music Group Inc., which doesn’t exist. The King Misic Group was allegedly owned by a personal acquaintance of Genuwine’s, Michael Bourne and t he terms of the contract gave Ginuwine (real name is Elgin Baylor Lumpkin) $1.75 million to record his first album a $500,000 advance. In nearly five months the singer hasn't made any records and hasn't been paid a cent, the lawsuit said. The lawsuit further alleges that there are no corporate records for King Music Group Inc. anywhere in New York, California, Florida or Tennessee. The lawsuit accuses King Music and Bourne of breach of contract, fraud and negligent misrepresentation. It asks for a total of $4 million in damages. Genuwine was previously signed to Epic.
http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003653658
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CONTRACT
Artists
Does Diddy owe on a Biggie debt?
Blimey, another rap suit. P Diddy is being sued by a former colleague who claims he is owed monies relating to a Notorious BIG recording from in 1994. The plaintiff is James Sabatino who previously worked as a consultant for Diddy's Bad Boy, and who personally paid for Biggie, to fly to Miami to perform live and record songs back in 1994. Because he paid for the trip, Sabatino had a deal with Wallace that he would own the recordings made that day. Enter Diddy who allegedly agreed to buy the recordings in 1997 after Biggies untimely death in for $200,000 of which $25,000 was paid. Then Sabatino was declared to be "of interest" to LA police investigating Biggie's murder and so Diddy promptly put his deal with Sabatino on ice. Since then Sabatino has since been cleared of any involvement in Biggie's murder although he was jailed over a totally unrelated matter. And now he wants his $175,000 for those 1994 recordings.
CMU Daily 8 October 2007 http://www.thebeatsbar.co.uk
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COPYRIGHT
Internet, record labels
Italian police take fileshare action
By Marc P Holmes
Italian police have shut down the Discotequezone file-sharing network with raids in Rome, Milan and Brescia. A total of 11 computers and 110,000 illegal MP3 music files were seized in the action. Police in the Italian city of Bergamo have reportedly arrested the administrators of a P2P network, along with seven filesharers who are accused of illegally uploading copyright materials including in excess of 110, 000 MP3 files. These raids constitute another episode in the continuing global ‘war on illegal filesharing’ waged on illicit downloaders. Under Italian law, the IFPI reports, these individuals could now “…face fines of up to 8.5 million euros in each case” and form part of a group of 170 file-sharers and P2P network administrators who have so far been hauled up before the country’s courts on similar charges.
It is interesting to note that many of the new prosecutions being faced by such filesharers in their respective countries are now being brought by state authorities. This marks a subtle, yet significant shift in the nature of the battle against internet-based copyright infringement. Whereas initially the music industry itself brought private prosecutions against such individuals, with the result being, in all but exceptional cases, downright awful press, the stepping in of the authorities in these countries – albeit after sustained lobbying campaigns – has added a legitimacy to such proceedings that the global industry bodies have so long craved.
Despite this, in the face of the dogged continuation of legal proceedings against filesharers, it is still hard to see the real efficacy of such proceedings beyond the deterrent - a relatively impotent one - with the statistical improbability of being prosecuted for downloading music remaining high. Furthermore, there appears to be little evidence of a direct link between successful prosecutions and the recent increase in legal downloading, which is reported to now constitute 4% of global music sales (The Times, Oct 4 2007).
In the face of the continued proliferation of illegal filesharing, it seems that the music industry is still getting it wrong. At their inception, certain shrewd commentators advised that the strategic nature of the copyright enforcement proceedings would have to be not so overtly punitive, or at least a solid defence of legal rights coupled with conciliatory moves towards to consumer. Yes, the industry has a right to defend its investment in copyright works, but surely there must come a point when a more creative, and crucially strategic, approach to tackling the problem must be employed.
Link http://www.ifpi.org/content_section/news
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HEALTH & SAFETY / LICENSING
Live events industry
New neighbours object to live music venue
By Marc P Holmes
The Birmingham Mail has reported a dispute concerning noise levels between the residents of a newly built housing development and a long-standing drinking hole in the traditionally vibrant Irish Quarter of Digbeth. The Spotted Dog public house now finds itself in a neighbourhood being regenerated with new residential buyers and tenants and has been served with a noise abatement order. The case raises interesting issues concerning the regulation of noise emanating from social and live music venues - if less tolerant new neighbours move into close proximity to boisterous neighbours, exactly what should the cost of harmony between the two parties amount to: the death of another live music venue or the daily donning of ear muffs for those unhappy residents? The answer is hopefully neither, with the soundproofing of new properties the most obvious solution. However, this then raises the critical issue - who is to bear the cost?
In Australia, under the ‘agent of change’ doctrine, residential developers building city centre apartments are obliged by law to soundproof developments themselves: The owner of one live music venue objected to a three-storey apartment block being built in a warehouse shell behind his venue. The Victoria Civil and Administrative Tribunal ruled that although the development could proceed, builders should engage a sound engineer and incorporate soundproofing into the new development. There is no corresponding doctrine in English law - and this area of dispute of course extends beyond music to sports venues and even to public spaces long used for public gatherings. The result is often, as can be seen in the Digbeth case, a divisive dispute between neighbouring residents with complainants currently forced to rely on the terms of the Environment Act. There are also provisions in the Licensing Act 2003 which allow local authorities to take action to prevent 'public nuisance'. Similar provisions exist in Australia where venues have been penalised after complaints from newly arrived neighbours. As such, the will of a disgruntled minority can lead to the end of social and musical activities enjoyed by others for decades. Of course residents of England and Wales should have the legal right to enjoy their properties free from unreasonable nuisance noise. However, no rights - legal or otherwise - exist in a vacuum, and this particular right should not necessarily extend to end the right of others to enjoy live music. Such a result would seem clearly unfair to most, but there is a flip side to the coin. In the absence of any such noise constituting a clear and actionable health hazard under the Environment Act, it is suggested that buyers such as those in this case would in fact fall foul of the old property law adage of cave emptor, and as one Digbeth resident commented should probably “have done their research better before they moved in”. Of course the ultimate solution for developers is surely to actually replace music venues with new developments – Manchester’s Hacienda apartments development being a great example – but this is a not a particularly attractive scenario for live music fans!
http://www.thestirrer.co.uk/spotted_dog_2709071.html
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COPYRIGHT
Music publishing
Brooker to appeal Whiter Shade of Pale judgment
Gary Brooker, the lead singer of Procol Harum, is appealing the judgment awarding the group's former organist (Matthew Fisher) 40% of the royalties from the 1967 hit 'A Whiter Shade of Pale'. Brooker's lawyers will question Fisher’s 40 year delay in making and claim that the case sets the “dangerous precedent” of allowing any musician who had played on any recording in the past four decades to claim joint authorship.
For more in this area see the article Battle of The Bards at http://www.davidwineman.co.uk/press17.htm
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COMPETITION
Live event industry
Ticketmaster seek to block automated access by secondary retailer
The furor over the state of the secondary ticket marketing in the is moving to the courts. Ticketmaster is seeking a preliminary injunction to stop RMG Technologies from accessing the Ticketmaster system through automated programmes (a tactic which provides resellers with repeated access to Ticketmaster.com via a proxy server).
www.billboard.biz
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TRADE MARK / IMAGE RIGHTS
Artists
ARTICLE LINK: Celebrity image rights can now be inherited in California
This article about the estate and image of the late Marilyn Monroe and titled “Law decides who owns a dead star’s image” by Jim Zarolli can be found at http://www.npr.org/templates/story/story.php?storyId=15198298
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COPYRIGHT
Film & TV
Indian religious festival falls foul of Potter magic
The Delhi High Court has partially dismissed a claim from Harry Potter author JK Rowling and film producers Warner Bros against organisers of a religious event who constructed a replica of the fictional Hogwarts School complete with a marble staircase and stone flagged hall, all lit with flaming torches. The writer had brought a claim in copyright law seeking 2 million rupees (£25,000) in damages. The Scholl replica will be remain standing until the end of the festivities in what appears to be a common sense judgment. However the Court took a dim view over adverts featuring ‘Potteresque’ characters used to promote the event and banned the use of these by organisers of the Durga Pjua festivities in Calcutta. The festivities begin on October 16th and last for four days. Event organisers were told that any future use of any material from Harry Potter would need the permission of the author.
See http://spicyipindia.blogspot.com/2007/10/potter-troubles-over-for-puja.html
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EDUCATION
Film & TV
An inconvenient judgment against Al Gore
We were not quite sure what heading to put this story under, but, a High Court judge in London had agreed with a complaint made by a school teacher that Al Gore's film, An Inconvenient Truth was not entirely accurate and contains certain unsubstantiated data. Mr Justice Barton said schools could screen the film but must make available balancing materials. For example Gore claimed that sea levels could rise twenty feet in the 'future' whereas the respected Intergovernmental Panel on Climate Change (IPCC) suggests less than a tenth of this figure (18 inches) over the next 100 years. The judge also found no evidence that polar bears were drowning because of melting ice and that the film was guilty of 'alarmism and exaggeration'. However the judge also commented that there was good support for the four main hypotheses of Gore's film - that climate change is mainly caused by human created emissions; that global temperatures are rising and will continue to so do; that unchecked climate change will cause serious damage; that government and individuals can reduce the impact of climate change. The case was brought by Stewart Dimmock, a school governor from Kent, with funding from a variety of climate change sceptic sources. If you are interested (and Dimmock has an interesting collection of supporters) see the Observer newspaper of the 14th October 2007 at pages 10-11 and see www.guardian.co.uk/environment/climatechange.
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COPYRIGHT
Internet, record labels
Record labels clamp down on student downloading in USA and Taiwan
US Universities have been counting the cost of policing illegal music downloading by students after being contacted by a U.S. House of Representatives subcommittee on intellectual property. The University of Winconsin at Madison (UW) said that it had spent more than US $300,000 responding to cease and desist leters from the Recording Industry Association of America (RIAA) and to a lesser extent the Motion Picture Association of America (MPAA). Staff have to deal with cease and desist letters, follow up with students, notify the RIAA when the music is deleted and secure the student's agreement not to copy again. The University also spends time and money publicising the implications of copyright theft. Last year UW received 1,158 cease and desist letters from the RIAA. Purdue University, which made the top 10 lists of both the RIAA and MPAA for unauthorized use of copyrighted materials, says tracking down alleged offenders and verifying identities has been a "significant cost to the university" with each case taking 3 - 4 hours to properly deal with at an estimated $50 per hour cost. Last year Purdue received 1,068 notices form the RIAA and 873 from the MPAA. In mid-September, the RIAA issued a new wave of 403 pre-litigation settlement letters to 22 universities nationwide, including 62 letters to parties at UW System schools where users have failed to comply with cease-and-desist orders. Twenty-eight of those were sent to students at UW-Madison. The letters give students the chance to resolve copyright infringement claims against them at a discounted rate before a formal lawsuit is filed.
http://www.chinapost.com.tw/taiwan/2007/10/15/126665/40%25-of.htm
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COPYRIGHT
Internet
Canadian Copyright Board rule on download royalties
Canada's Copyright Board has ruled on what publishing royalties should be paid to the Society Of Composers, Authors And Music Publishers (Socan) on download sales made between 1996 and 2006, bringing to an end a decade long dispute between the recording and publishing sectors. Socan had been pushing for a higher rate than physical royalties, at one point 25%, though during the Copyright Board hearing they gave clear indications they would settle for a royalty much lower than that, though not as low as the 3.4% awarded by the Board this week. But the record labels were looking for something much less than even the 3.4% that was awarded. They already pay a 7.9% royalty to mechanical rights body the Canadian Musical Reproduction Rights Agency, and were hoping to keep the total publishing royalty - ie the amount paid to CMRRA and Socan - within the 8% figure, to keep the royalty inline with that due elsewhere (Japan is 7.7%, UK 8% and US 9.1%). The Board ruling means they will have to pay a total publishing royalty of 11.3%. The Board now needs to consider the royalty rates for this year, which have not been set pending the 1996-2006 ruling.
From CMU Daily http://www.thebeatsbar.co.uk
And see http://www.punknews.org/article/26147
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DEFAMATION
Internet
Football fans may face claim
Disgruntled Sheffield Wednesday Football Club fans who vented their anger about club directors in acrimonious blogs may face defamation clams after the High Court ruled that the owner of a blog must reveal the identities of three fans who had made allegations of ‘greed, selfishness, untrustworthiness and dishonest behaviour’. Mere abuse or where the post was likely to be understood as a ‘joke’ was not enough and eight fans were allowed to retain their anonymity. In an earlier case in October a Sunderland property developer called John Finn admitted in court that he was the owner of a website which had criticised a rival firm, Gentoo on a website set up to campaign for father’s rights.
The Guardian 22 October 2007 & see Music Law Updates April 2006 Liability for ISPs: Bunt v Tilly & Others
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TRADE MARK Pirate Bay, the ongoing thorn in the side of the record and film industries, has launched a new website at .... on no you guessed it, the seemingly vacant www.ifpi.com. The International Federation of Phonographic Industries whose main website is at www.ifpi.org have said they will bring a WIPO (World Intellectual Property Organisation) action to regain the ‘cyber squatted’ domain.
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COPYRIGHT
Internet
Google missing from copyright pact
A coalition of nine of the world’s biggest media companies have signed a pact aiming at cracking down on copyright abuse on the internet. The group, which includes Viacom, Microsoft, Disney and Fox have pledged to use filtering technology to stop the use of copyright materials without permission on file sharing sites. But Google, which owns the biggest file sharing website YouTube, is a notable absentee despite the fact that YouTube publicly launched new copyright filtering technology on the site this month. All nine companies have offered each other an amnesty against legal action for copyright abuse provided the new guidelines are adhered to. The Guardian October 19 2007.
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COPYRIGHT
Internet
FACT close down tv-links wesbite
The Federation Against Copyright Theft (FACT), Gloucestershire trading standards officers and Gloucestershire police have raided the offices of tv-links.co.uk and closed the site down. According to police reports, the website's owner and some of its moderation staff were arrested. FACT says that this is just the first of a series of planned moves to combat the illegal, unauthorised distribution of video content online here in the UK. The website, www.tv-links.co.uk, listed hundreds of TVseries and movies and provided links to video sharing sites - YouTube, Veoh, stage6, Guba and others, many of which host illegally uploaded content. However the website itself contained no illegal uploads nor offered illegal content and it will be interesting to see if the UK Courts decide that the mere linking to illegal sites and material constitutes copyright infringement especially as the wesbite did not support illegal links with advertising.
source CMU Daily 22 October 2007 http://www.thebeatsbar.co.uk
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CONTRACT
Live events industry
Nugent loses appeal over concert cancellation
The Michigan Court Of Appeal has rejected an appeal by rocker type Ted Nugent who sued music festival Muskegon Summer Celebration after they cancelled a 2003 booking with his band Amboy Dukes after he made allegedly racist remarks in a radio interview. Promoters of MSC cancelled the planned Amboy Dukes set at their 2003 event after a local newspaper reported on the radio interview, comments Nugent had made, and opposition by some local residents to what he had said. They said at the time of the cancellation that "any use of potentially offensive racial terms such as those attributed recently to Ted Nugent do not reflect the spirit of Muskegon nor the Summer Celebration". Nugent sued the MSC not only for breach of contract over the cancellation but also for libel, slander, "detrimental reliance", unfair competition and unjust enrichment. The breach of contract claim, heard by a jury, was successful, but a Muskegon County Circuit Court judge dismissed all the other allegations. Nugent appealed that decision, but the Court Of Appeals upheld the dismissals last week. Not only that, but they reduced the compensation awarded to the rocker over the breach of contract claim. At first instance he was awarded $80,000 for breach of contract and $20,000 for lost merchandise sales, but the appeal judges reduced the first amount by $20,000, arguing that, had the gig gone ahead, Nugent would have had to pay 25% of his earnings to his management and agents, who were not party to the lawsuit.
source CMU Daily 22 October 2007 http://www.thebeatsbar.co.uk
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COMPETITION
Technology, software
Judgment of the Court of First Instance in Case T-201/04
Microsoft Corp. v Commission of the European Communities
Microsoft have announced that they will not be appealing against the recent CFI decision and European Competition Commissioner Neelie Kroes said in a speech on the 22 nd October "I want to report to you today that Microsoft has finally agreed to comply with its obligations under the 2004 Commission decision, which was upheld last month by the Court of First Instance. The Commissioner went on to confirm that Microsoft would now provide information allowing third party developers of work group server operating systems to develop products that interoperate with the Windows desktop operating system on terms acceptable to the Commission and that Microsoft had slashed patent royalty rates for interoperability information from 5.95% to 0.4% - less than 7% of the royalty originally claimed. The Commissioner also confirmed that there would now be a one of payment for access to secret interoperability information on software developed using licensed information and that
Microsoft would make interoperability information available to open source developers and that Microsoft would give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end users. The Commissioner added “I told Microsoft that developers who sign licensing agreements with them should have the means to ensure respect for the 2004 decision. Microsoft has now accepted that it must give legally binding guarantees to licensees about the completeness and accuracy of the information it provides and that the licensee can obtain effective remedies, including damages, from the High Court in London. These private enforcement tools come on top of the Commission’s powers and continued vigilance to ensure that Microsoft complies with its obligations in this area as in others” and warned Microsoft that it must continue to comply with the 2004 decision.
See Music Law Updates October 2007
See the IPKat http://ipkitten.blogspot.com/2007/10/microsoft-they-think-its-all-over.html
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COPYRIGHT
Music Publishing
ARTICLE LINK
A number of article have appeared commenting on the closure of the International Music Score Library Project which appeared to be a site hosting ‘public domain’ music scores – public domain works in Canada anyway.
http://yro.slashdot.org/article.pl?sid=07/10/21/0559220
and see a summary at http://www.p2pnet.net/story/13749 including comment from two leading Canadian lawyers Professor Michael Geist and Howard Knopf.
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COPYRIGHT
Internet, record labels
Oink shut down in British and Dutch raids
The IFPI report that British and Dutch police have shut down the world’s biggest source of illegal pre-release chart albums and arrested a 24-year old man in an operation coordinated between Middlesbrough and Amsterdam. The raids, which were coordinated by Interpol, follow a two-year investigation by the international and UK music industry bodies IFPI and BPI into the members-only online pirate pre-release club known as OiNK. OiNK specialised in distributing albums leaked on to the internet, often weeks ahead of their official release date. More than 60 major album releases have been leaked on OiNK so far this year, making it the primary source worldwide for illegal pre-release music. The site, with an estimated membership of 180,000, has been used by many hardcore file-sharers to violate the rights of artists and producers by obtaining copyrighted recordings and making them available on the internet. It is alleged that the site was operated by a 24-year-old man in the Middlesbrough area, who was arrested today. The site’s servers, based in Amsterdam, were seized in a series of raids last week. OiNK’s operator allegedly made money by setting up a donations account on the site facilitated by PayPal. Cleveland Police and the FIOD-ECD SCHIPOL branch of the Dutch police undertook the raids, supported by Interpol, as part of a carefully-planned international investigation with anti-piracy investigators from IFPI and BPI. OiNK used peer-to-peer technology called BitTorrent to distribute music. Torrent sites such as OiNK act as a library for torrent files. BitTorrent is the most popular software for internet file sharing and OiNK was the best-known for pre-release piracy. The IFPI say that closed internet communities known as “ripping groups” often get demos, early mixes of commercial releases and promotional copies of pre-release albums in advance of release with a view to distributing the music as widely and as far ahead of release as possible. Each ripping group gains cachet amongst its peers for being the first to get new music and uses torrent sites to distribute the music as widely as possible. OiNK operated an exclusive membership scheme by which users were only invited to join the site if they could prove that they had music to offer. They were encouraged to distribute recordings in the torrent file format with other OiNK members, and have to keep posting such music to the site to maintain their membership.
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COPYRIGHT
Record labels
ARTICLE: ‘Brega’ Sound turning music industry on its ear
“While piracy is the bane of many musicians trying to control the sale of their songs, tecnobrega artists see counterfeiters as key to their success. Artists, who make their money off of live shows, deliver their CDs directly to the street vendors, who determine the price that market can bear.” http://edition.cnn.com/2007/TECH/10/19/brazil.tecnobrega.ap/index.html?eref=ib_technology
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DAVID KENT
On a personal note, I would like to say how sad I was to hear the news of the death of David Kent. David died after losing a fight with pancreatic cancer. He was just 54. For those who didn’t know him, David was a lawyer with London based legal firm Seddons having joined in 1988 from Thorn EMI and he has run their media and entertainment division since 1997. He leaves behind his wife, Marilyn, and their daughter Charlotte. I worked with David on a number of projects and he was charming, professional and a real gentleman. He will be much missed in the music industry and by many friends in the legal profession. Ben.
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© 2007, Ben Challis