CONTRACT Artists
Court of Appeal calls time in Quo battle: L ancaster and another v Handle Artists Management Ltd[2008] All ER (D) 308 (Apr)
by Cassandra Williams, postgraduate student at the College of Law
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
CONTRACT
Artists
Court of Appeal calls time in Quo battle: L ancaster and another v Handle Artists Management Ltd[2008] All ER (D) 308 (Apr)
by Cassandra Williams, postgraduate student at the College of Law
In the case of Lancaster and another v Handle Artists Management Limited and others [ 2005] All ER (D) 128 (Nov) a claim was made by two former Status Quo band members Alan Lancaster and John Coghlan for payment of back catalogue royalties primarily against the two continuing band members Rick Parfitt and Francis Rossi who continued with others as status Quo (see http://www.musiclawupdates.com/06Januarylawupdates.htm) and initially resulted in a victor for Lancaster and Coghlan, The claim centred on certain ‘Pye’ royalties (going back to the sixties) and other Phonogram royalties (going back to the seventies). As was normal at the time, the Pye contracts were made directly with individual band members but as Status Quo became more successful the contractual arrangements "merged" with contracts made with the band’s corporate vehicles. At the end of the trial the Pye royalty claims were upheld and it was declared that the royalty shares belonging to the Claimants, Coghlan and Lancaster, were held by the continuing band members on constructive trust despite the fact that they had signed a deed relinquishing their rights to further - the trial judge constructed the deed of release signed by the parties against the confused factual background at the time the deed was entered into. Although the deed was expressed in the widest possible terms and was in respect of 'any and all sums of money' the judge concluded that the deed of release signed by the first claimant did not include royalties paid under the 'Pye agreements’. The case was appealed and The Court of Appeal felt that the Judge at first instance had ‘erred’ in his judgment by giving the narrow ratio which was incorrect. At trial the royalties were said to be held on constructive trust for the claimants but the Court Of Appeal held that on the true construction of the deed, the judge had erred in construing the language of the document narrowly. The language of the deed of release had been formulated in the language of the clean break and there was nothing in the deed, or the factual matrix existing at the time the deed had been entered into, to indicate that the 'Pye agreements' should not be included. However with further appeal allowed it will be interesting to see whether this case makes it all the way to the House of Lords.
Maintaining the Status Quo - record royalties, protecting and claiming your share - by Robert Deacon
http://www.mondaq.com/article.asp?articleid=58548
Lancaster and another v Handle Artists Management Ltd [2008] All ER (D) 308 (Apr)
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COPYRIGHT
Internet, record labels
ARTICLE LINK: RIAA sues Project Playlist / record labels take aim at “clever” sharing operation
Is Project Playlist legal? The site allows users to build playlists of music found on other websites (whether they got there legally or not the site claims disinterest) and then streams them to listeners. They pay the relevant performance royalties. In what could be a precedent-setting case, recording companies are alleging that the Project Playlist Web site is guilty of infringement by enabling its own members to give other users access to unlicensed music files hosted by other sites .
http://government.zdnet.com/?p=3779
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COPYRIGHT
Internet
IFPI launch copyright education project
The IFPI have launched a global information campaign to explain the world of music downloading to teachers and parents worldwide. A new pocket-sized guide, published by children’s internet charity Childnet International and supported by Pro-music, the international alliance of music sector groups, will be distributed through schools and colleges, libraries, record stores, teaching portals and websites in 21 countries. The simple, concise guide, “Young People, Music and the Internet” aims to help young people use the Internet and mobile phones safely and legally to download music. The guide will be available on http://87.84.226.198/Content/GuidesAndResources/advice_for_parents.php as well as on www.childnet.com/music , where parents, teachers and young people will be able to access more information on a music microsite.
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COPYRIGHT
Internet, record labels
Arizona court takes a narrow view on P2P file swapping (Atlantic v Howell)
The CMU Daily reports on an interesting technicality was raised in a US court hearing relating to one of the Record Industry Association Of America's P2P lawsuits this week. It's a technicality that has been raised before, but it was the court's ruling on the matter that was interesting, because in theory it reduces the scope of the RIAA's lawsuits a little. The case was against Pamela and Jeffrey Howell who are accused of illegally sharing music via the Kazaa file sharing network. The labels are suing them for copyright infringement.
The technicality is as to whether merely placing music files into a Kazaa folder on your PC in itself amounts to copyright infringement. Generally speaking courts have been willing to say "yes" in the past - so that if a defendant puts music in a Kazaa folder, and a label's agent is to download a track or two from it, then infringement has been assumed in relation to all
tracks put in that folder. However, the court in Arizona hearing the Howell's case wasn't keen to extend the definition of infringement that far. It said that a copyright was only infringed if there was "actual dissemination of copies or phonorecords" - ie infringement took place when someone downloaded a track from the Kazaa folder, but not when the tracks were first put into the folder. It's a subtle distinction, though one that's not without ramifications. The
RIAA's agents had downloaded 12 files from the Howells' Kazaa folder, but were suing for infringement on all 54 tracks they found in the folder. Given their narrow definition of infringement, that meant that in the eyes of the court there was only evidence of infringement on the 12 tracks the RIAA had themselves accessed, nothing could be proven on the other 42. Of course moving forward, if this ruling was accepted elsewhere (and it's only really relevant for other Arizona cases) the RIAA could overcome it by always downloading a copy of every track being shared by its P2P targets, though that does extend their workload somewhat, and could be problematic for lawsuits pending where all tracks have not been specifically accessed. Responding to the ruling, the RIAA said they thought the Arizona courts had failed to follow precedent set in other US courts on this matter, and that as a result they were reviewing their options. Their statement read: "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues. We are currently considering all options going forward".
http://www.cmumusicnetwork.co.uk
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COPYRIGHT
Internet, record labels
Jammie Thomas conviction to go back to court
The judge in the Jammie Thomas case – the first case where the US record labels secured a criminal conviction for illegal file sharing has notified attorneys for both sides that he's considering granting a new trial on the grounds that he improperly instructed the jury about what constitutes illegal file-sharing on the internet. U.S. District Judge Michael Davis said in an order filed in Minneapolis that he may have made a "manifest error of law" last October when he instructed a Duluth jury that simply uploading songs to a music file-sharing network could be considered illegal distribution, even in the absence of proof that anyone received them. The jury found Thomas, 30, willfully violated the copyrights of six recording companies and that Thomas, operating on her home computer under the user name "tereastarr" on the Kazaa file-sharing network, copied or distributed 24 songs, and it set damages at $9,250 for each alleged infringement. Thomas' s attorney said the award (totaling $222,000) was excessive and had already filed a motion asking Davis to reduce it. But Davis, in today's order, wrote that he'll consider granting a new trial on different grounds. "The Court is concerned that Jury Instruction 15 may have been contrary to binding 1993 Eighth Circuit [U.S. Court of Appeals] precedent," Davis wrote. He then cited a case in which the appeals court "stated that `infringement of [the distribution right] requires an actual dissemination''' or, in other words, proof that someone received the songs. Different judges have ruled different ways on the matter. Last month a federal judge at a pre-trial ruling in Boston said that merely making the songs available online is not copyright infringement. But a ruling by a New York judge took the opposite position. Judge Davis also observed the recent decision in Atlantic v. Howell (see above) in which a decision that had initially equated making a file available with file distribution was reversed and the Arizona court held that a copyright was only infringed if there was "actual dissemination of copies or phonorecords" - ie infringement took place when someone downloaded a track from the Kazaa folder, but not when the tracks were first put into the folder. The judge has ordered that attorneys for Thomas and the record companies submit briefs by May 29 on whether he erred. He wrote that he'll hear oral arguments on those briefs on July 1 in U.S. District Court in Duluth.
http://www.startribune.com/entertainment/music/18971729.html?location_refer=Home%20+%20Garden
http://ap.google.com/article/ALeqM5gUiUM7D5ibA1Nf5u08i0_RTmq1nAD90MAAA80
http://www.informationweek.com/news/personal_tech/music/showArticle.jhtml?articleID=207800402
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TRADE MARK
Internet
Myspace domain can be kept by original owner
The Nominet Dispute Resolution Service Appeals Panel has ruled that the myspace.co.uk domain - which was registered by Total Web Solutions before the now very popular MySpace service came into existence did not after all have to be turned over to MySpace Inc, owners of the social networking site. Total Web Solutions registered myspace.co.uk in August 1997 in order to provide its clients with a cheap and easy homepage and email. On or before July 2004 myspace.co.uk, which was no longer in demand for its original purpose , was "parked" with Sedo, a company that targets advertising links on unused domains which In 2005, following the growing popularity of MySpace, began serving Total Web Solutions' domain with advertisements for services such as "MySpace Friend Adder". The appeal panel dismissed the assertion by MySpace Inc that it was entitled to the disputed site on the ground that it was entirely descriptive of its business. Nor did it consider the earlier registration to be abusive. The panel added: "To date experts and Appeal panels have reasonably consistently taken the view that if a registrant acquires a domain name in advance of the coming into existence of the complainant's rights, the registrant is entitled in principle to hold onto the domain name and to use it, notwithstanding that confusion of the 'initial interest' variety may be inevitable. Similarly, experts and Appeal panels have concluded that in such circumstances it is not of itself abusive for the registrant to demand a high price from the complainant for transfer of the domain name in recognition of its enhanced value".
http://ipkitten.blogspot.com/2008/05/myspace-ruling.html
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COPYRIGHT / PRIVACY
Internet
MySpace wins $230 million from spammers
MySpace has won a record $230 million (approx £118 million) legal judgment against ‘spam king’ Stamford Wallace and business partner Walter Rines over junk messages sent to Myspace customers which directed them to online gambling and porn sites. District Judge Audrey Collins in Los Angeles made the order after hearing how 700,000 messages were sent to MySpace users and bolted on an prohibition against Wallace and Rimes similar activities in the future.
http://digg.com/security/MySpace_Wins_230_Million_Judgement_Against_Spammers
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COPYRIGHT
Internet
ARTICLE link AOL, Real, Yahoo must pay millions in outstanding music royalties
By Scott M. Fulton, III, BetaNews
The artists' rights organization ASCAP will be receiving tens of millions in back royalties from 2006, from the leading Web radio broadcasters. But it's much less than what it had proposed, and way less than what royalties groups wanted last year.
The CMU Daily adds:
A US District Court has ruled on a long running dispute between three of the US's big net outfits - AOL, Real and Yahoo - and publishing rights body ASCAP, regarding how much the web firms should pay the collecting society for the rights to play songs on their online music services – now decided at 2.5% of “music-use-adjusted revenue" which could be according to US commentators a payment to ASCAP of a combined $100 million. ASCAP chief Marilyn Bergman says said "The Court's finding represents a major step toward proper valuation of the music contributions of songwriters, composers and publishers to these types of online businesses - many of which have built much of their success on the foundation of the creative works of others. It is critical that these organisations share a reasonable portion of their sizable revenues with those of us whose content attracts audiences and, ultimately, helps to make their businesses viable. This decision will go a long way toward protecting the ability of songwriters and composers to be compensated fairly as the use of musical works online continues to grow".
ASCAP’S Bill of Rights for Songwriters and Composers can be found at http://www.ascap.com/rights/billText.aspx
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PRIVACY / CONFIDENCE
Artists
The cat is out of the bag - so Max Mosley fails to gag News of the World
The IPKat has come across a case in which Max Mosley attempted to enjoin the News of the World from showing video footage of his allegedly Nazi-themed orgy with five prostitutes. The footage was posted on the News of the World's website at the end of March. It was then voluntarily taken down on 31 March, by which time other websites had copied and posted the footage. On 3 April the News of the World gave notice that it intended to repost the footage. Mosley applied to the court for an injunction to stop this.
According to Eady J, Mosley's Art.8 right to privacy was in conflict with the News of the World's Art.10 right to freedom of expression. In balancing the two, the court has to take the following into account:
i) No Convention right has, as such, precedence over another;
ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case;
iii) The Court must take into account the justification for interfering with or restricting each right;
iv) So too, the proportionality test must be applied to each.
The information disclosed intrusive and demeaning to Mosley. However, the court had to consider two factors which could limit his right to privacy:
1. There was no public interest justification for revealing the edited video footage. The public was already aware of Mr Mosley's proclivities, and the pictures embodied in the video footage were only of interest because they were "mildly salacious and provide an opportunity to have a snigger at the expense of the participants".
Although there was a public interest in protecting the public from being misled by statements made by a claimant (in this case, the possibility that Mr Mosley was not telling the truth in denying that the S&M session has a Nazi theme), the News of the World could put the record straight without recourse to the video footage. In particular, the footage in question did not convincingly show that Mosley was lying.
2. However, there was no point in barring the News of the World from showing the material since the material was now widely available on the internet and anyone who wished to view the footage could easily do so. Either Mosley had lost his reasonable expectation of privacy because the information was so widely available, or the information has entered the public domain. In either case, the court had to avoid adopting the role of King Canute and making "vain gestures".
The judge summarised:
I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.
The IPKat is a tad puzzled by Eady J's approach. Although he states that no convention right takes precedence over another, he seems to proceed on the assumption that Mosley has a prima facie right to privacy which would need to be rebutted by free speech concerns. In other words, free speech seems to be being treated almost as a defence, rather than as a right of equal importance to privacy.
Mosley v News Group Newspapers Ltd (2008) EWHC 687 (QB)
http://www.bailii.org/ew/cases/EWHC/QB/2008/687.html
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PRIVACY
All areas
David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Ltd [2008] EWCA Civ 446
Again from the IP Kat, news of JK Rowling’s son David Murray’s action for privacy. David when 20 months old, was photographed by Big Pictures, using a telescopic lens, while he was being pushed along the street in a buggy by his parents. The photograph, published without the family's knowledge or consent, subsequently appeared in The Sunday Express magazine with accompanying text - attributed to JK Rowling - setting out some thoughts on her approach to motherhood and family life. The quote was genuine but out of context, having been made in relation to David's big half-sister Jessica. The Express having compromised the Murrays' claim, the action proceeded only against Big Pictures. On behalf of David it was argued that Big Pictures had acted in breach of the European Convention on Human Rights Article 8 and in breach of confidence; it was also claimed that the company was in breach of the Data Protection Act 1998 since it held photographic data about David while unregistered as a data controller. Suing via his parents as best friends, David sought damages and an injunction against further publication of the piccie. Big Pictures moved for summary judgment or a strike-out of David's claim.
The judge at first instance, Mr Justice Patten, perhaps surprisingly struck out the claim. In his view there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy. Further, even if the European Court of Human Rights' decision in the Princess Caroline case (Von Hannover v Germany) had extended the scope of protection into areas that conflicted with the principles enunciated in Campbell v Mirror Group Newspapers Ltd (2004) UKHL 22 he was bound to follow Campbell because it was a decision of the House of Lords. David appealed.
The Court of Appeal (Sir Anthony Clarke MR, Laws LJ and Thomas LJ) allowed the appeal. In their opinion
Jeremy Philips at the IPKat thinks that the Court has done a neat job in synthesising the approaches of the House of Lords in Campbell and the ECHR in von Hannover . First it neutralised any suggestion that those decisions had any bearing on account of their facts, since neither concerned the special circumstances of child-of-celebrity privacy. Then, without saying that either was right or wrong, it confirmed that the correct approach depends on the facts of each case in which Article 8-type issues and the privacy/press freedom balance is invoked. It did not (as it could not) say that the House of Lords' approach was wrong, but in the end there was no need for it to do so.
http://ipkitten.blogspot.com/2008/05/now-you-can-buy-milk-without-being-shot.html
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FREEDOM OF INFORMATION
Artists, internet
A novel way to produce a promo video
This is a very interesting story and a heading we have never used before- although here at Music Law Updates we wonder about the copyright implications. Anyway, CMU Daily report that Manchester trio The Get Out Clause have hit on a novel way of making videos. Instead of forking out thousands to make a proper video for their new single 'Paper', they performed the song in front of 80 different CCTV cameras in their home city and then applied for copies of the footage under the Freedom Of Information Act. Guitarist Tony Churnside told Sky News: "We wanted to produce something that looked good and that wasn't too expensive to do".
Check out the video here: http://www.youtube.com/watch?v=W2iuZMEEs_A
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COPYRIGHT
Internet
AIM launch manifesto for copyright in the digital age
AIM have published Copyright In the Digital Age, their manifesto for a copyright infrastructure “fit for purpose” in the 21st Century.
Within it, AIM sets out the case that:
AIM’s original 2006 Copyright in the Digital Age paper built on the view that the value chain from the creators and investors in music through to ISPs to the consumer is currently dysfunctional, and proposed a range of solutions. This was the basis for the 2006 all-industry Round Table (facilitated by the Smith Institute) discussion on monetising the digital distribution of music, since when the industry has been working together on developing a solution. AIM’s participation in this process has resulted in the new paper, a refined version of the original, which outlines AIM’s proposals on making the digital music value chain functional in a market which has completely changed the producer/consumer relationship.
The paper can be downloaded at http://www.musicindie.com/254.asp?sub=General%2520Resources
And a summary of Music Tank’s “Meet The Millennials” on the state of the music industry written by Terry McBride, boss of label and management group Nettwerk and former Nettwerk GM Brent Muhle can be found at www.musictank.co.uk. The Executive Summary is free.
And as said above, ASCAP’S “Bill of Rights for Songwriters and Composers” can be found at http://www.ascap.com/rights/billText.aspx
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COPYRIGHT
Internet
Chinese search engine fined
Zhongsou, one of China’s top five internet search engines, has been found guilty of infringing record companies’ copyrights by the Copyright Bureau of Hebei province and Cangzhou city. The authorities have ordered the internet company to stop infringing immediately and pay the maximum penalty of RMB 100,000. Three computer servers belonging to Zhongsou have also been forfeited. This is the first time that administrative penalties have been levied on a company running a music delivery service. In September 2007, IFPI lodged a complaint with the Hebei Provincial Copyright Bureau. Further investigations by Cangzhou Copyright Bureau, Cangzhou Cultural Task Force and RenQiu Cultural Task Force revealed that copyright infringing files accessed by the delivery service were hosted on servers owned by Zhongsou in Cangzhou city in Hebei province. With the assistance of the ISP Cangzhou Netcom, the authorities raided and seized the servers on 11th March 2008. The administrative fine of RMB 100,000 imposed on Zhongsou in May 2008 is the largest fine for copyright infringement in the history of Hebei province.
www.ifpi.org (from press release)
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COPYRIGHT
Internet
Criminal conviction for Brooklyn music infringer
Barry Gitarts, a 25-year-old Brooklyn man, has been found guilty of conspiracy to commit criminal copyright infringement by a federal jury in Virginia. Under the pseudonym "Dextro," Gitarts was charged with administering a server in Texas for an underground file sharing group called Apocalypse Production Crew - APC members traded music, games, movies and software amongst themselves but trial testimony from the Recording Industry Association of America portrayed APC as a "first provider" or "release group" of pirated content, often pre-release material, sometimes months before retail release. Evidence presented in the case showed that he received payment from the leader of the group in return for this work. Gitarts appears to be the 15th APC member to be convicted for criminal copyright infringement as part of U.S. Department of Justice's long-running Operation Fastlink but this was the first case that has gone to a trial. U.S. District Court Judge Liam O'Grady will sentence Gitarts on August 8 th and penalties extend to a maximum of five years in prison, a fine of up to $250,000 and three years of supervised release. In addition, he must "make full restitution" to the record labels affected. Mark Shumaker, a co-conspirator who pleaded guilty to the same crime in 2003, was sentenced to two years probation and a $100 fine.
http://blog.wired.com/music/2008/05/guilty-verdict.html
http://blog.wired.com/27bstroke6/2008/05/guilty-verdict.html
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© 2008, Ben Challis