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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A BRIEF REVIEW OF 2007
Whilst the record labels continued their uphill struggle in what looks like a hopeless fight against peer to peer file swapping, the live event industry looked in rude health. As a previously neglected area of legislative interest, the UK and European live sectors have become the focus of increasing (and some might argue sometimes unnecessary) legislation which has recently covered disabled rights, noise limits, smoking, agents responsibilities, security staff and event licensing, to name but a few. Many unsafe, bureaucratic, counter-productive and unwise practices are introduced in the name of progress but it is up to the live sector to make its voice heard if it wants to work with legislators to improve the industry.
One of the most interesting legal issues across the entire music industry has been sector consolidation and competition law. This is not just within the record and music publishing industries, which both faced renewed scrutiny from the European Commission in 2007 after the mergers of Sony and BMG and Universal Music and BMG Music, but also in the live sector. In the UK the ownership of venues in London resulted in a thorough examination of the live sector by the Competition Commission and in the USA the continued dominance of Live Nation continues to attract interest as did Clear Channel’s business practices in the past.
Ticket touting continues to attract headlines in trade magazines and elsewhere and there have been repeated calls for ‘anti-tout’ legislation. I very much doubt if this will be forthcoming – putting on a one-off show by Led Zeppelin at the 20,000 capacity O2 in London is surely going to create massive ticket demand and touting activity – made all to easy by eBay and the web – and with hospitality, VIP and ‘golden circle’ tickets officially on sale by promoters - the music industry itself gives out the impression is that money can buy access. And really, what has touting got to do with government? The legislation brought in about the re-sale of football tickets was to combat violence at matches. It is arguable touts provide a service – albeit a grubby one - allowing ticket prices to find their own level and putting tickets in the hands of real fans. It should also be noted that whilst in Europe promoters continue to call for government intervention, in the USA states such as New York, Florida, Illinois and Minnesota have repealed state anti-scalping laws in 2007 and this is almost certainly going to be followed in other states. (I believe there are now only 5 states left with anti-scalping provisions). I wouldn’t hold my breath about UK or European legislation on touting in the near future although ‘self-regulation’ of the secondary market seems a possibility after a new initiative, the Resale Rights Society, was launched by the Music Managers Forum (MMF) in December and UK sports minister Gerry Sutcliffe is considering drawing up a list of ‘protected events’ where touting would be banned in response to a leaked Culture, Media & Sport Select Committee report critical of a system which “exploits fans” (The Observer, 23 rd December 2007). Where I am certain there will be a regulatory impact will be on the environment and climate change – expect a flurry of legislation and directives – just about everywhere. We should be flattered by legislator’s interest in our business – and equally worried about just what might be legislated for.
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COPYRIGHT
All Areas
ARTICLE LINK – How long should copyright last? By Victor Keegan
In 1735 William Hogarth, after a lively public campaign, helped to pass an act giving engravers the rights to their work for 14 years from publication. It was a landmark in the history of copyright as it bestowed on engravers similar legal rights to authors and stopped sellers of prints from creaming off all the profits. Hogarth would be amazed today to find that in the US copyright has been extended to 70 years - not from the date of publication, but from the death of the author. In Britain it was regarded as rather bold of the Gowers report - on which the government will pronounce soon - to suggest that Britain should keep the existing limit of "only" 50 years after death …. Read more at
http://www.guardian.co.uk/technology/2007/nov/29/comment.intellectualproperty
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COMPETITION
Record labels, internet
It’s not all good news for the labels as Limewire’s defence is thrown out
A US federal judge has thrown out Limewire’s defences to the action brought against it by the Recording Industry Association of American on behalf of its label members with Judge Lynch dismissing all claims yesterday by the P2P file-sharing network. LimeWire had claimed that the record industry illegally blocked its attempts to build a legitimate digital music service. The 13 RIAA labels named in the complaint, including the four majors, were accused of price-fixing, hacking LimeWire users, falsely claiming that Lime Wire promotes child pornography, and pressuring artists not to deal with P2P networks - but the judge agreed with the record industry that Limewire had no case saying “the allegations made over child pornography are not a matter for the federal antitrust court”. More worryingly for the labels, Judge Lynch did make some comments on price fixing and was of the opinion that cartel-like behaviour "may have harmed competition generally" although held that Limewire failed to show it specifically had suffered, as allegations under the Sherman Act required (the Sherman Act is the cornerstone of US antitrust laws). The Judge also found that the labels licensing schemes had harmed Limewire saying "[The] mandatory [hash] licensing regime inflicted direct and concrete antitrust injury on Lime Wire by raising its costs and thus impeding its ability, and the ability of other P2P retailers utilizing hash-based filtering technology, to operate as effective competitors in the digital distribution market … ... accordingly, LimeWire has established antitrust standing to challenge counter-defendants' mandatory licensing scheme". But it seems Limewire’s claim failed to go further and failed to “plausibly suggest the existence of a conspiracy," Lynch wrote. Limewire’s claim that the RIAA tried to create a "shared monopoly" was dismissed for lack of evidence. Judge Lynch ruled that Limewire cannot appeal the antitrust rulings.
http://www.theregister.co.uk/2007/12/04/limewire_antitrust_riaa/
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CONTRACT
Artists
High School Musical star’s claim to avoid contract signed as a minor goes to trial
A lawyer who claims "High School Musical" lead Vanessa Hudgens owes him $150,000 in legal fees can proceed with his lawsuit against the teen star, a US judge has ruled. Superior Court Judge Tricia Ann Bigelow said she or a jury should decide whether the actress acted within a reasonable period of time when she waited two years to repudiate a contract she signed when she was 16. Attorney Brian Schall filed a breach-of-contract lawsuit in September that said Hudgens agreed in October 2005 to pay him 5 percent of her earnings in exchange for his legal representation. Hudgens earned more than $5 million with his help, Schall says in his lawsuit. Hudgens disavowed the agreement on October the 9th and she turns 19 later this month: her current attorney argues that state law provides that a contract with a minor can be voided before the person turns 18 or "within a reasonable time afterward."
http://www.startribune.com/entertainment/12195876.html
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COMPETITION
Live events industry
Live industry promotes self regulation for ticketing
The artist management community have launched a new initiative on secondary ticketing by proposing the launch of a Resale Rights Society to regulate concert ticket market. Whilst the UK government has shown an interest in touting and secondary ticket sales, they have put pressure on the live industry to do something about it itself - but the live industry has generally said that is powerless to do anything, and that the government should look to regulate ticket touting in music and entertainment (in a similar way to the regulations that exist in the football industry). Four 'government summits' have addressed the issue so far, and a select committee of the Department Of Culture, Media & Sport is currently investigating it further with the results apparently leaked in the Observer newspaper urging a crackdown on touting.
The Music Managers' Forum, with support from the songwriters and music publishers collection societies the MCPS-PRS Alliance, has now decided to make its own proposals and have announced that a coalition of artist managers, who manage over 400 artists between them, including The Verve, Robbie Williams, Arctic Monkeys, KT Tunstall and Radiohead, are launching a new body called the Resale Rights Society which will aim to (i) provide music fans with some protection if and when they buy tickets from resellers and (ii) ensure some of the profits of the secondary ticket market go back to the artists and live sector. The Society aims to do this by persuading the likes of eBay and ticket reselling sites to sign up to a 'kite-mark' scheme which would force them to make certain commitments to consumers (eg to have a refund policy if a gig is cancelled) and to commit to pass on a portion of their own profits to the Society, which would distribute the monies to artists, songwriters and promoters. In return the ticketing sites would be legitimatised by the industry (or those parts of the industry signed up to the Society). The new Society, which will be a not-for-profit membership organisation run by and for artists, managers and promoters, will be chaired by Marc Marot, a former Island Records chief and now manager of Yusuf Islam and Paul Oakenfold. The RRS have said that informal discussions with promoters and ticket agencies had been positive and The Association Of Secondary Ticket Agents has said it will support the new initiative. One amusing headline called the proposed system a ‘tout tax’.
However it should be remembered that unlike the PRS, MCPS and PPL, the ‘right’ the new society holds is not expressly provided for in UK law. The music collection societies can collect royalties because they control the ‘restricted acts’ in copyright put forward in the Copyright, Designs and Patents Act 1988. The PRS and PPL for example can licence the right to perform and/and broadcast a composition or a sound recording. The MCPS can licence the right to copy a piece of music. There is even legislation in place to govern the re-sale of works of art over specific thresholds in value (Artist’s Resale Rights Regulations 2006). But there are no such provisions in law for tickets except for the criminal prohibition which applies to the unauthorised re-sale of football tickets (s166 Criminal Justice and Public Order Act 1994) and a similar prohibition which will apply to tivkets for the 2012 London Olympics. Obviously acts such as Kylie Minogue and Led Zeppelin and major events such as Glastonbury and the Rugby Six Nations have used contractual terms and conditions in the attempt to thwart onward sale by touts, by fans on eBay and to an extent by secondary ticketers. But of course contractual terms themselves need to be certain and reasonable (and indeed not fall foul of the Unfair Contract Terms Act 1977) and this comment sums up promoters difficulties: “ Typically private resale will contravene the original conditions of sale, but it's legally questionable whether the original conditions of sale are even enforceable”. A s far as I am aware such terms have yet to be tested in a UK court although there is a worrying (for the RSS) Australian authority where in an action brought by online auction site eBay, Mr Justice Rares in the Federal Court ruled that Big Day Out promoter Creative Festival Entertainment engaged in misleading and deceptive conduct by stating every ticket resold for profit would be cancelled saying that Creative "did not have reasonable grounds" to claim every ticket resold for profit would be cancelled.
News story from CMU Daily http://www.thebeatsbar.co.uk . For details of the Australian federal court decision see http://www.news.com.au/comments/0,23600,20945199-2,00.html (including some interesting comments from the general public) and see
http://ezinearticles.com/?Ticket-Scalping-Continues-to-Frustrate-Promoters&id=390449
For an interesting discussion in this area and a ‘legal response’ have a look at Wikipedia at http://en.wikipedia.org/wiki/Ticket_resale (as at 06/12/07) and see http://www.out-law.com/page-8745 ; For the Artist’s Resale Rights see http://www.out-law.com/page-6636
And see http://www.economist.com/business/displaystory.cfm?story_id=10259003 and IQ Issue 15 Supp 2 p13 (Article by Petri H Lunden).
See the Observer Newspaper p1& p4 December 23 rd 2007 ‘Crackdown urged on rip-off web ticket touts’
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LICENSING
Live music industry
UK Government responds on Licensing Act problems
In a somewhat lacklustre announcement, the UK Government has nodded through a token £500,000 (E700,000) to support new initiatives in developing rehearsal spaces for performing artists in the live music industry in the UK - which it estimates is worth £743 million per year (E1,040 million) up 8% from 2006. In its response to the Live Music Forum's report on the live industry which was set up after the introduction of the Licensing Act in 2005, the Government has said said it would "explore exemptions from licences for some small venues" - but unfortunately no time frame is given. The DCMS release added that it would "work with the Mayor of London to protect venues" - but no mechanisms are given. The response also said that the Government would help the National Union of Students (NUS) to re-establish a live music network to increase the number of universities putting on live music - although the NUS had itself already set up the new uLive circuit in June 2007 - so this is hardly a new initiative. All in all a most disappointing response.
The Forum's report, published in July, made recommendations on how the Government could improve the licensing system for live music venues and how it could better promote live music and one key finding was that some small venues had been put off staging live performances after the old 'two in a bar rule' was abolished. Interestingly the press release slips in the phrase 'anachronistic' when referring to the old system although at the time the Government pointedly ignored a vigorous (and it might be added now fairly accurate) campaign in the House of Lords supporting live music and pointing out the old rule was a practical, workable and simple solution allowing small venues, pubs, clubs, community spaces and restaurants that put on live music. But it was abolished anyway! In many ways the Licensing Act has been seemingly beneficial to the leisure industries and whilst small venues struggled with increased bureaucracy, larger venues, events and festivals have found the streamlined process an advantage. On top of this, flexible licensing hours as well as Temporary Events Notices have been a boon to the industry. Culture Secretary James Purnell said "The live music industry is clearly booming but there hasn't yet been the increase in live music in small venues such as restaurants that we had hoped for. I want to do everything we can to support live music. To help ensure that, we will explore exemptions for some venues. Clearly we'd only be looking at exemptions for events that don't cause public nuisance or compromise public safety .... and so fans are able to see their idols live in central London venues, we will work with the Mayor of London to investigate how we can secure the future of live music venues." The Culture Secretary added that up to a dozen new rehearsal spaces would be developed in conjunction with local and regional authorities and industry supporters including AIM, the BPI and Sony BMG - this initiative spearheaded by ex-Live Music Forum chair Feargal Sharkey
The response to the Live Music Forum's (LMF) report can be found at www.culture.gov.uk.
The LMF published its report on 4 July 2007. The report can be found at:
http://www.culture.gov.uk/Reference_library/Publications/archive_2007/lmf_findings_recommendations.htm
A survey of live music in England and Wales 2007 was conducted by BMRB Social Research on behalf of DCMS and can be found at:
http://www.culture.gov.uk/Reference_library/rands/research/livemusicsurvey.htm
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MEDIA
Broadcasting
DJ sentenced to 10 months in prison for illegal broadcasting
A DJ running an illegal FM station has been jailed for a total of 20 months following a case pursued by broadcast regulator Ofcom and the Metropolitan police. Jason Weatherman, the DJ and station manager of Lightning FM, received a sentence of 10 months for illegal broadcasting offences under the Wireless Telegraphy Act 2006. Weatherman, who ran the station from Tulse Hill in south London, received a further 10 months for other criminal offences including benefit fraud. In passing sentence at the Inner London Crown Court (Southwark) the judge referred to the dangerous nature of illegal broadcasting which runs the risk of interfering with the signal for emergency services such as the fire brigade and air traffic control as well as broadcasts by licensed radio stations. Ofcom estimates that there are around 90 illegal stations operating across the UK, with over half of these in London. Last year Ofcom undertook 1,085 operations against illegal broadcasters, and achieved 63 convictions .
http://www.guardian.co.uk/media/2007/dec/07/radio.ofcom
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COMPETITION
Music publishing
EC says collection society guidelines will remain voluntary
The European Commission has said that it currently has no plans to introduce new legislation that would force an overhaul of the publishing royalty collecting societies across Europe but will continue to evaluate the effect of voluntary guidelines already in place that encourage the royalties sector to offer artists, labels and digital music firms more choice in terms of which societies they work with and in offering pan-European licences. The EC has been encouraging the collecting societies to reform the way they operate, partly because of concerns the way each society traditionally dominates in its home country is anti-competitive on a European level, and also because many argue digital music services can only prosper if there is a one stop shop to licence music across Europe. The logic behind the EC's recommendations is that collecting societies give up certain monopolies they have essentially enjoyed in their home territories and instead take advantage of the opportunities that come from the pan-European royalty market.
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COMPETITION
Internet
EU not planning to regulate online music markets
The European Commission is currently not drawing up any binding rules to regulate the online music market, despite repeated calls by the European Parliament. At a meeting with MEPs in the legal affairs committee last month (14 November), the commission said: "The submissions analysed so far show that most stakeholders do not see the need for a framework directive, and prefer market-based solutions to regulatory intervention. Commissioner Joe Borg, standing in for his internal market colleague Charlie McCreevy, said "Our recommendation is not detrimental to cultural diversity” referring to Brussels' suggestion that the copyright market be left to market forces.
The full ARTICLE can be seen at http://euobserver.com/9/25235
On digital consumer rights in Europe see http://www.rte.ie/news/2007/1203/murrayj.html
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COPYRIGHT
Record labels, film, TV
RIAA and MPAA top ‘worst corporations’ list as new copyright legislation is proposed
The film, TV and music industry have lobbied hard to toughen up copyright laws in North America but in both the US and Canada there is an increasing backlash against these industries as politicians, academics, consumer groups, civil liberty campaigners, performing artists and even librarians resist what are seen as increasingly draconian and ridiculous 'solutions' to the creative industries's problems. In the US, the governments own Department of Justice has slammed intellectual property legislation introduced by Judiciary Chairman John Conyers last week that would re-organize its IP enforcement structure, calling it unnecessary and counterproductive to the work it has already accomplished. "We have a current structure … that works quite effectively," Sigal Mandelker, Deputy Assistant Attorney General, told the House Judiciary subcommittee on Courts, the Internet, and Intellectual Property. And in Canada new, Industry minister Jim Prentice has backed down on tabling new copyright legislation after fierce criticism. The new digital age copyright legislation is seen as completely pro 'industry' and a 'flash mob' of outraged protesters descended on his Calgary office after he refued to answer questions on a TV show on state broadcaster CBC's service. In particular there is growing resistance to DRM (which locks content) and against 'anti-circumvention' legislation with consumers arguing that once they have brought a piece of music they should not be restricted in how they use it. Apple are already fighting a backlash against this in Europe where music brought from iTunes is locked into Apple's iPod only. Critics have labelled the new Canadian bill as the “Canadian DMCA,” after the USA's oft criticised Digital Millennium Copyright Act as their new act contains many of the same provisions - amongst them are the laws that have enabled the U.S. music industry to launch its well-publicized blitz of lawsuits against individuals who share files illegally. http://news.yahoo.com/s/zd/20071213/tc_zd/221645
http://www.vueweekly.com/articles/default.aspx?i=7705
http://www.theglobeandmail.com/servlet/story/RTGAM.20071222.copyright22/BNStory/National/home
ARTICLE LINK : The Recording Industry Association of America and Motion Picture Association of America are some of the most hated ‘brands’ in the USA – and now are number one and number two on the list of hated companies: The RIAA had already won a vote to become the ‘worst’ company in the US. this article explains why - in a fairly damning critique of the copyright industry’s bully boy tactics against consumers and technology companies and self centered lobbying of US politicians.
http://www.p2pnet.net/story/14272
ARTICLE LINK : New US legislation – the new PRO IP (Prioritizing Resources and Organization for Intellectual Property Act), H. R. 4279, introduced with bipartisan support, would boost some fines from the current maximum of $30,000 for non-intentional infringements. Under the new bill, courts would be able to issue damages of $30,000 for each track on an album, as opposed to one $30,000 fine per album. Sponsors include Lamar Smith (Republican -Texas.), Howard Berman (Democrat -California.), Adam Schiff (D-Calif.) and Bob Goodlatte (R-Va).
http://publications.mediapost.com/index.cfm?fuseaction=Articles.showArticleHomePage&art_aid=72376
ARTICLE LINK : “ Imagine a world in which a single industry could control an entire continent's access to particular web sites, force ISPs to install expensive deep packet inspection gear that would search the complete Internet data streams of millions of users, and force Internet applications to conform to its design parameters or risk being blocked. If you're a European consumer, this might sound like a paranoid dystopia, but it's actually a vision of paradise—if paradise were designed by the IFPI”
http://arstechnica.com/news.ars/post/20071209-ifpis-european-christmas-list-content-filtering-and-p2p-blocking.html
ARTICLE LINK – The Magnificence of Disaster – Reconstructing the Sony BMG Rootkit Debacle by Deidre Mulligan and Aaron Perzanowski ( Berkley Center for Law & Technology). An interesting analysis of Sony BMG’s now infamous foray into the world of DRM and the ongoing effect of the DCMA. Synopsis at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1072229
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COPYRIGHT
All areas
ARTICLE LINK – in defence of the artist’s rights to get paid
If you have read the updates above on the apparent loathing against the RIAA, MPA and others, especially in the US, you would think that no-one supports their position. But here is an articulate response to some questions from an unnamed writer (“Sam I Am”) who says s/he is not linked to trade associations but does work self employed in the entertainment industry. It is interesting, well thought out (have a look at his/her definition of ‘sharing’ – it makes you think about ‘file-sharing’ in a different way!) and well worth a read and hopefully not planted by the entertainment industries!
http://www.p2pnet.net/story/14377
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COPYRIGHT
Record labels, music publishing
Thailand moves to amend copyright legislation
Thailand ’s lawmakers have finalised a draft bill to amend its copyrights law in an effort to regulate the collecting of royalties in domestic music industry. The law will require those wanting to collect royalties on copyrighted works to incorporate their business into a limited company known as a “collecting company” and seek a permit for such operation from a regulatory committee set up under the proposed bill. These collecting companies would be required to publicly declare the works for which they hold the copyrights, rate of royalties they will collect from users, and how they will distribute the royalties collected among the various copyright holders. Those who continue to collect royalties without complying with procedures under the new law could now be subject to a maximum jail term of two years or a fine of 800,000 Thai baht ($23,680), or both. Thailand’s current Copyrights Act, in force since March 1995, contains no provision specifically dealing with royalties collection. The entertainment business that uses Thai copyrighted music most is karaoke parlours, which are the key issues intended to be addressed by this new bill and the bill should provide a clear and clean collection system free of confusion and corruption.
http://www.ip-watch.org/weblog/index.php?p=876
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COPYRIGHT
Record labels, music publishing
ARTICLE LINK : Final Blow to File Sharing? Japan's Government to Revise Copyright Law
News from Japan on revisions to this important market’s copyright laws – Japan is the second biggest market for the sale of recorded music and a leader in mobile downloads.
http://techon.nikkeibp.co.jp/english/NEWS_EN/20071219/144447/
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COPYRIGHT
Record labels, internet
Beijing Court confirms Yahoo’s music service infringes copyright law
The international recording industry has hailed a landmark Beijing court ruling confirming that Yahoo China’s music delivery service violates Chinese law by facilitating mass copyright infringement. Yahoo China, part-owned by one of the world’s biggest internet companies, Yahoo Inc, runs an operation enabling users to search for, play and download pirate music without ever leaving its website. Yahoo China’s appeal against a guilty verdict in April was today dismissed by the Beijing Court. The decision is made under new Chinese copyright laws which entered into force in 2006. The Court separately ruled on a similar case against internet company, Baidu which ‘deep links’ to thousands of illegal tracks had been brought under the previous Chinese copyright laws. The ruling confirmed that Baidu participated with and assisted third party sites in transmitting infringing music, but under the old laws Baidu was not liable for copyright infringement. Over 99 per cent of all music downloading in China infringes. In September 2005 IFPI filed claims on behalf of Gold Label, Go East, Cinepoly, EMI, Warner, Universal and Sony BMG – in the Beijing No.1 Intermediate Court regarding a total of 195 sound recordings claiming infringement of the record companies’ rights by Baidu for providing sound recordings to the public by means of streaming or download via the mp3.baidu.com site. In November 2006 the Beijing No.1 Intermediate People’s Court ruled that Baidu was not infringing and IFPI appealed on behalf of Go East, Cinepoly, Warner, Universal and Sony BMG to the Beijing Higher People’s Court who have now upheld that earlier ruling.
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TRADE MARK / IMAGE RIGHTS
Artists
Governor Schwarzenegger Signs Law Clarifying Posthumous Right of Publicity Statute
Governor Arnold Schwarzenegger has signed Senate Bill 771 into law (2007 Cal. Stat. ch 439) amending California’s right of publicity statute. The law now clearly allows a deceased person’s publicity rights to be passed on by will - even if that person died before January 1, 1985. The move was necessary after the existing publicity rights statute passed in 1985 (Civil Code §3344.1) was called into question by two federal court decisions - CMG Worldwide, Inc. v. Milton H. Greene Archives LLC, C.D. Cal., No. CV 05-2200 (summary judgment for defendants granted May 14, 2007) and Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., May 2, 2007). The latter case involved a dispute over the ownership of Marilyn Monroe’s right of publicity. Marilyn Monroe bequeathed her residuary estate to her long-time friend and acting coach Lee Strasberg; the question before the courts was whether Monroe’s publicity rights existed when she died in 1962 and could be bequeathed as a property right as California’s right of publicity statute recognizing a posthumous right only became effective January 1, 1985.
http://www.loeb.com/news/CaseDetail.aspx?article=493
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TRADE MARK
Artists
Four Tops win injunction and a most unusual order
Abdul 'Duke' Fakir, a founder member of The Four Tops, has won a legal action in the High Court in London against Viscount Oliver Miller who has been touring the UK under then name Viscount Oliver's Legendary Four Tops. Miller had no connection with The Four Tops, either in a recording or performing capacity and it is arguable if his band was meant to be a tribute band. Fakir and four other claimants began action against Miller after being made aware of the Viscount Oliver Legendary Four Tops tour by a UK fan. Fakir then discovered that Miller had trademarked ' Viscount Oliver's American Dream The Legendary Four Tops' and that Miller had been for some time touring the UK using photographs of the old Four Tops to convince punters that they were the genuine article and claimed in press handouts amongst other things that he had recorded with the band and inferred that in fact he was one of the Four Tops. When the Viscount refused to stop touring under The Four Tops banner, or to surrender his trademark, Fakir sued. Miller issued a defence to the litigation, but this was struck out after "persistent and serious breaches of court orders" on the defendant's part. The court found in Fakir's favour, issuing an injunction to stop Miller from performing under The Four Tops name , damages and a declaration invalidating the defendant's trademark.
Mr Justice Warren held and ordered as follows:
- that the registered UK trade mark Viscount Oliver’s American Dream The Legendary Four Tops was invalid
- Ordered by way of an injunction that The Defendant must not (whether by himself, his employees or agents or any of them or otherwise and whether alone or with others)
And Warren J further ordered that the defendant must not use and phrase containing the phrase “the Four Tops” and must not use photographs of the original line up(s) of The Four Tops.
Interestingly The order includes an order for dissemination of the Court order to the venues at which Miller’s act appeared and by way of an advert in the Stage and the order allows the Claimant to undertake this directly with the defendant paying for such by way of payment of the sum of £2.032.75. An inquiry into damages was ordered and t he defendant also had to pay £18,315.12 in costs.
Alexis Grower of Magrath & Co who acted for the claimants commented as follows “one of the matters that concerns me is that in some States in the US, there are local laws that prevent the kidnapping of a band's name by pretenders although this is not federal law as such. As more and more of these 50s and 60s reach an age when they are no longer with us or unable to perform then this sort of activity will occur. Doing so is far more than just being a tribute band, it is actually taking over somebody's reputation, profile and brand. This maybe something we should consider lobbying to be brought into English law as a protection.”
See more on the ‘Truth In Music’ campaign in the USA from archives: Oldies groups go to court to challenge 'truth in music' law but promoter held in contempt for using Drifters name (October 2007 Updates) and see http://www.musiclawupdates.com/07Septemberlawupdates.htm
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TRADE MARK / IMAGE RIGHTS
Artists
Bands sue over Rolling Stone magazine cartoon feature
The dispute between certain US indie labels and the American music magazine Rolling Stone has escalated after two bands - Xiu Xiu and Fucked Up - launched a class action lawsuit against the magazine's publisher, Wenner Media, and one of their advertisers, RJ Reynolds who produce Camel cigarettes. The dispute relates to a cartoon feature that appeared in the magazine last month, and which featured cartoons of various indie bands – but the feature was backed by a big advert for Camel cigarettes, and a number of the artists featured in the
cartoons claim that readers will have assumed the cigarette brand had sponsored the feature, and that they, the artists, had endorsed that sponsorship. Wenner have denied that the feature was sponsored, and claim it was a coincidence the cartoon feature was printed back to back with the Camel ad. However, despite that a number of indie labels whose artists appeared in the feature last week published an open letter demanding a retraction and
apology from the magazine, while political types have been taking aim at Camel owners RJ Reynolds claiming that the association with a music based cartoon feature breaches a cigarette industry code of conduct regarding not promoting their products to the youth market.
According to Billboard, Xiu Xiu and Fucked Up's lawsuit alleges the publisher and cigarette maker are guilty of the unauthorised use of artists' names, unauthorised use of artist names for commercial advantage and unfair business practices. The legal papers say the two defendants were guilty of "despicable conduct" that was "illegal under settled, unambiguous California statutory and common law".
from CMU Daily 19 December 2007 http://www.thebeatsbar.co.uk
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COPYRIGHT / COMPETITION
Television, internet
Sky TV case reaches half time in High Court
Murphy v Media Protection Services Ltd [ 2007] EWHC 3091 (Admin)
The High Court have now made an ‘interim judgment’ in the dispute between UK broadcaster BSkyB and publican Karen Murphy over the latter's right to show live UK football matches to her customers in the Red, White and Blue pub ( right), Southsea, via Greek station Nova for just £800 a year, instead of paying substantially more for a licence from BSkyB. Lord Justice Pumfrey and Mr Justice Stanley Burnton) dismissed her appeal based on domestic law. Giving judgment, Pumfrey LJ is quoted as saying that BSkyB had the exclusive right to screen or broadcast the matches in question in the UK and it was "apparent" Ms Murphy knew that was the case. However, the court had not heard arguments about whether European competition and free movement legislation might affect the case: "So far as the competition law case is concerned, we do not at present follow how it is to be developed, and this appeal must therefore be restored for these points to be argued if that is what the appellant wants".
The court granted Ms Murphy permission to reopen the appeal at a one-day hearing in January. Several companies install foreign satellite equipment in pubs in the UK, including Digital Sales, run by Joe Ibrahim. He maintains that the ruling was unfair and inconsistent with copyright rules that covered other products: "If what we're doing is illegal, then it will stop people bringing European cars into Britain and if you buy a DVD in Europe and have it shipped to you in Britain then that will be deemed illegal too".
See http://news.bbc.co.uk/1/hi/business/7155939.stm
see the judgment at http://www.bailii.org/ew/cases/EWHC/Admin/2007/3091.html
And see the article on this site written in march 2007 (March 2007 updates) ARTICLE Does Sky have an enforceable a monopoly on live premiership football in the UK?
FACT v Gannon, MPS v Murphy
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It is with sadness we note that Sir Nicholas Pumfrey, Lord Justice of Appeal, passed away on Christmas Eve after suffering a stroke.
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© 2007, Ben Challis