COPYRIGHT Music publishing
Court of Appeal allow appeal against Procul Harum organist Brooker Onward Music v Fisher [2008] EWCA Civ 287
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
COPYRIGHT
Music publishing
Court of Appeal allow appeal against Procul Harum organist Brooker Onward Music v Fisher [2008] EWCA Civ 287
The Court of Appeal (Lord Justice Mummery, Mr Justice David Richards and Sir Paul Kennedy) has partially allowed the appeal by Procul Harum frontman Gary Brooker against former keyboard player Matthew Fisher. The appeal was against the 2006 decision of Mr Justice Blackburne which awarded Fisher 40% of the music writing royalties of the classic pop song ‘A Whiter Shade of Pale’, the UK’s most popular radio track ever. Whilst the Court of Appeal agreed With Blackburn J that Fisher was a co-author of the work, they held that Fisher’s delay in bringing the case in 2006, 38 years after the track was released, was fatal to his claim for royalties. The Court agreed that Fisher’s ‘Bach inspired’ Hammond organ solo at the beginning of the track was intrinsic to the song’s melody and indeed that Fisher was a co-author of the work and had made a significant contribution - but The Court of Appeal held that by silently standing by and acquiescing in the commercial exploitation of the Work without taking action, Fisher "led [Brooker] to act for a very long period on the basis that the entire copyright in the Work was theirs". Mummery LJ said that this acquiescence made it "unconscionable and inequitable for him to now seek to exercise control over the commercial exploitation of the copyright in the Work" and that ‘excessive and inexcusable delays’ in asserting his claim” meant that Fisher would not receive any past or future royalties.
http://www.bailii.org/ew/cases/EWCA/Civ/2008/287.html
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COPYRIGHT
Television, internet, publishing
The new PACT-MCPS Independent Production Company (IPC) Licence
The MCPS launched its Independent Production Company licence as a mandatory scheme for television producers on 1st August 2007 and has now accepted a number of changes proposed by Pact, the trade association representing independent film and television producers. However Pact advise that the licence does have some elements that may not be entirely welcome to certain producers, and members are advised to consider the licence and the Guidance Note carefully in coming to a decision about taking up a licence. In particular, the IPC licence contains a clause that requires users to pay licence fees even if the material used is covered by the "fair dealing" copyright rules. Pact had tried to persuade MCPS to remove this requirement but MCPS has stated that its members insist that such payments are essential if producers wish to have the benefit of automatic clearance for the entire MCSP repertoire. The MCPS scheme is mandatory - MCPS publishers will no longer be in a position to grant music rights individually to producers. The only alternatives to licensing through the MCPS IPC licence are for a producer to use their own commissioned music, use public domain music or use other repertoire licensed by bodies other than MCPS such as Audio Networks. The licence, available to all UK producers, will automatically clear primary uses of all MCPS music in programmes made for any UK broadcaster (except where the broadcaster already has its own blanket MCPS licence that covers independent producers). Primary uses include the broadcaster's primary transmissions, plus the 30 day video on demand windows. Payment is per 30 seconds of use, and based on a rate card with different rates for each channel. There is an increase in rates for commercial music to cover the additional rights granted. The Channel 4 rate is £107 per 30 seconds, and the Five rate is £78 per 30 seconds. The licence will also cover the use of music in content related to the programme that is used in new media applications such as video-on-demand, online and mobile services. The commercial music rate for Channel 4 programmes is £36 per 30 seconds, and the Five rate is £26 per 30 seconds.
The Guidance Note contains further information about the licence, including details on how to apply.
MCPS IPC Licence - Guidance Note
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COPYRIGHT
Internet, record labels
How will record labels monetise copyright in the future?
ARTICLE LINK Warner Music’s Tune of Folly
C/Net News Editor's note: Music attorney Chris Castle is all for finding a way to boost the music industry out of its current nosedive. But bundling music charges into ISP bills is not the way to go, he says.
http://www.news.com/8301-10784_3-9905661-7.html?tag=nefd.lede
And from the glorious IP Kat an update in this area:
It looked like Internet service provider and telecom company Virgin Media was going to become the first UK internet company to crack down on subscribers who download music illegally. While record labels are lobbying for a "three strikes" regime that would see those who collect pirated material disconnected from the internet, Virgin has been working with music trade body BPI on a pilot project which could see "dozens of customers" sent warning letters. This trial will go live within months, with the threat (or "option") of disconnecting customers who ignore the warnings. The trial is also open to film and television studios. Says the Sunday Telegraph (30/03/08):
"This would be the first time a British internet company has publicly moved to share responsibility for curbing piracy. Two years of negotiations between record labels and internet service providers (ISPs) have so far failed to produce an industry-wide agreement.
A spokesman for Virgin Media said: "We have been in discussions with rights holders organisations about how a voluntary scheme could work. We are taking this problem seriously and would favour a sensible voluntary solution."
The BPI has teams of technicians to trace illegal music downloading to individual accounts. It will hand these account numbers over to Virgin Media, which will match them to names and addresses". In February the UK government said it would implement legislation by April 2009 unless ISPs came to a voluntary agreement with the music and film industries. According to industry sources, the Department for Business, Enterprise and Regulatory Reform is due to publish a consultation paper next month, outlining legal measures.
Says the IPKat, getting in with a consensual arrangement ahead of any legislative initiative will keep Virgin in the recording industries' good books, but is unlikely to stave off pressure for legislative intervention unless (i) the pilot works, (ii) it is adopted as a sectoral norm by all the other ISPs and (iii) does not raise suspicions within the European Commission that there exists any hidden market-sensitive agenda that will distort or reduce competition between ISPs or upstream or downstream of them. Merpel adds: Virgin's own slightly risquee, devil-may-care, young-and-attractive image may the main victim of this initiative -- it all depends on how carefully Virgin's publicity people spin it.
http://ipkitten.blogspot.com/2008/03/bpi-virgin-to-pilot-warning-scheme-for.html
However it seems the BPI is not quite as positive as Virgin saying in press release
"Unfortunately it simply isn't true that we have agreed a pilot - or any sort of deal - with Virgin Media, though we continue to work towards that. We think that every socially responsible ISP should help their customers avoid the illegal use of their broadband account. It is true that the BPI is talking to major ISPs, including Virgin Media, about how we can work in partnership to create a richer legal music downloading experience that benefits everyone and reduce online music theft”.
And the boss of Talk Talk has taken up the gauntlet thrown down by record labels trade body the BPI and hit out at proposals by the music industry that Internet service providers should take a more active role in preventing illegal file sharing online saying it wasn't their job to police the Internet. Carphone Warehouse and Talk Talk CEO Charles Dunstone issued a statement criticising the BPI and rejecting their demands for assistance in fighting online copyright infringement. He told reporters: "We are the conduit that gives users access to the Internet, we do not control the Internet nor do we control what our users do on the Internet. I cannot foresee any circumstances in which we would voluntarily disconnect a customer's account on the basis of a third party alleging a wrong doing. We believe that a fundamental part of our role as an Internet service provider [ISP] is to protect the rights of our users to use the Internet as they choose". He added that he was of the opinion that the record industry, who were struggling because of their own failures to adapt to the digital age, were simply looking to "foist their problems on someone else". The BPI quickly responded to Dunstone's statement, claiming that the Talk Talk boss was seriously misrepresenting, or possibly misinterpreting, their requests saying that it was not unreasonable to involve ISPs in the fight against illegal downloaders saying "We believe that any socially responsible ISP should, as a core part of its business, put in place steps to help their customers avoid engaging in illegal activity, and deter those who knowingly break the law." Against a background of the UK government telling labels and ISPs to talk, the BPI recently posted their views at http://www.bpi.co.uk/isp-partnership
The Guardian newspaper reported on this 24/04/06) and makes a guess at what action could be coming, and even speculates at the potential for future law-making and the IPKat reports that copyright holders already have a powerful tool against ISPs that they could use right now, in the form of section 97A of the CDPA. This allows the High Court to grant an injunction against an ISP "where that service provider has actual knowledge of another person using their service to infringe copyright". To the IPKat's eyes, this seems to be pretty broad, and gives the BPI potentially pretty strong grounds to go after ISPs, provided they have good evidence that their service is being used for infringement (which everybody knows is widespread). They would presumably only need to show that infringement is taking place, for example by users making available copyright works contrary to s20(2)(b).
http://www.guardian.co.uk/technology/2008/apr/24/piracy.netmusic
Across the Channel, the European Parliament has narrowly voted against a rule which would cut the Internet connections of people who illegally download copyright infringing music and other digital files. The parliament voted 314-297 in favour of an amendment that saw off a requirement that would have protected copyright music files on the Internet; 297 voted against the amendment. The amendment raised the issue of human rights and civil liberties - "avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of internet access". The International Federation of the Phonographic Industry (IFPI) has said the amendment was badly drafted and a contradiction to the contents of the full report.
And again in Europe a new task force on culture and the creative economy, has produced a report suggesting less VAT and a sharper focus on training and mobility in an own-initiative report for the Committee on the cultural industries' potential to contribute to the Lisbon growth and jobs strategy. French Socialist MEP Guy Bono noted "Criminalising consumers who are not seeking to make a profit is not the right solution to combat digital piracy...The central message of this report is to find a balance between the possibility to access cultural events and content while ensuring cultural diversity and genuine income to the right holders,"
http://www.thinkbroadband.com/news/3502-meps-say-anti-piracy-plans-conflict-with-human-rights.html
ISPs and privacy – a European view http://www.p2pnet.net/story/15543
http://news.zdnet.co.uk/communications/0,1000000085,39384074,00.htm
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COPYRIGHT
Internet, record labels
ARTICLE New data law could benefit music pirates
Germany 's music industry fears that a new telephone data law could become a carte blanche for Internet users, who download tunes illegally. Until now, they've traced music pirates with the help of phone records – this Deutsche Welle article explores the ‘privacy vs property’ tension.
http://www.dw-world.de/dw/article/0,2144,3220471,00.html
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COPYRIGHT
Record labels
Universal brief says throwing away promotional CDs is “piracy”
A brief filed by Universal Music Group (UMG) in federal court says that giving away or even throwing out a promotional CD is piracy. The brief was filed in the case of UMG against Troy Augusto (Roast Beast Music Collectibles), an eBay based service that sells collectible promo CDs which are brought at used record stores around Los Angeles and resells them on eBay. Although the CDs have "promotional use only" labels, both he and the EFF (who took his case after UMG sued him) feel that he is covered by the "First Sale" doctrine in US law which allows purchasers of copyrighted material to sell that which they have purchased without violating the copyright laws as the copyright owner has derived all revenue from the so-called first sale, and cannot control the future disposition of the article originally sold. the copyright owner only has right to prevent others from copying and distributing (for free or for profit) copies of a work covered by a valid copyright. UMG argue that each promotional item is a copyrighted work and when they initially are distributed they are not sold – so they technically remain the property of the record company or the studio that distributed them. The Court has set a trial date of June 24, 2008.
http://www.huliq.com/56478/universal-music-group-tossing-your-promo-cds-piracy
This is a link to a very amusing article comparing J K Rowling’s “goblin” approach to the ownership of treasure with Universal’s approach - also noting that J K Rowling herself is currently in court in the US with a copyright infringement suit over an unauthorised lexicon about the Harry Potter stories. http://www.mlive.com/entertainment/citpat/index.ssf?/base/entertainment-2/120868593990920.xml&coll=3
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COPYRIGHT
Music publishing
Bollywood filmmaker pays up for plagiarised song
A Bollywood filmmaker has been ordered to pay 20 million rupees ($5 million) to a songwriter after the Bombay High Court ruled that Mumbai-based Rakesh Roshan's film production company Filmkraft had copied fromm a sing by composer Ram Sampath. Sampath claimed two tracks and two remixes from Roshan's latest film "Krazzy 4" were lifted from a jingle Sampath composed last year for a commercial for Sony Ericsson mobiles. Mr Justice D. G. Karnik ruled that Rakesh and his composer brother, Rajesh Roshan (who composed the "Krazzy 4" soundtrack), were "prima facie guilty of copyright violations and plagiarism," adding that "to my untrained ear, the music (in the two works) appeared to be similar." Initially the the court had passed a stay order (injunction) blocking the film's release until the disputed songs were removed. But that order was lifted and the case dismissed after Filmkraft agreed to pay Sampath damages and give due credit.
http://www.billboard.biz/bbbiz/content_display/industry/e3i841febf193b81360fcda7b5de73a7250
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COPYRIGHT
Record labels, music publishing
The music industry responds to the Gowers report
The Music Business Group - which represents a number of music industry associations - including the BPI, AIM (independent labels), MU (Musicians Union), MMF (Music Managers), PPL, BMR (British Music Rights) and the MCPS/PRS - is putting together a united response the Gowers Review of UK copyright law which they will present to the UK Intellectual Property Office today. The document will give the collected music industry's viewpoint on six recommendations made by Gowers in his 2006 review including the suggestion that consumers should be given the right to make private copies of copyright material they have already legally purchased (the private copying exception) which Gowers supports. The various members of the Group seem to have differing views on this although the possibility of a levy to compensate songwriters, music publishers, record labels and recording artists has been forwarded as one solution. BMR, which lobbies on behalf of composers, songwriters and music publishers, has recently commissioned research that shows s that 95% of the 1,158 UK sample group have engaged in some form of illegal copying and amongst 16-24 year olds home copying - transferring tracks from borrowed CDs to a hard drive, CDR or MP3 player, is the most popular with 85% indulging. 59% swapped files over the internet. BMR CEO Feargal S harkey is urging the record labels and publishers to take a realistic attitude to consumer behaviour and develop business models reflecting consumer attitudes - but also asking the government to look at European systems where private copying exceptions are mirrored by compensation provisions for composers and recording artists - usually levies on equipment and on blank CDRs and tapes. http://www.guardian.co.uk/technology/2008/apr/07/digitalmusic.drm
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COPYRIGHT
Record labels
Australian police bust music piracy ring
The Australian Federal Police have busted an international piracy ring that produced and sold pirated music in a clandestine manufacture and export operation from Sydney. In a two day operation that involved executing 11 search warrants across Sydney, the police raided private residences, an optical disc manufacturing plant and several retailers. The police seized thousands of pirated CDs and album covers and charged a 36-year-old man with copyright infringement. He was bailed and will appear before the Central Local Court on May 13. The retailers were selling pirate compilations made by "Fresh off the Boat Entertainment", which included illegally reproduced songs by artists such as Justin Timberlake, UB40 and Gnarls Barkley. The anti-piracy arm of the Australian music industry, Music Industry Piracy Investigations (MIPI ) helped the police with its investigation, said the pirate compilations uncovered in the Sydney raids had also been found in New Zealand and Pacific Island territories such as Fiji. MIPI and the Recording Industry Association of New Zealand, have begun enforcement action against an importer and CD manufacturing plant that are allegedly stocking and distributing the pirate compilations Criminal penalties for copyright infringement in Australia are up to $60,500 and 5 years imprisonment per offence for individuals, and up to $302,500 for corporations
http://www.theage.com.au/news/technology/music-piracy-ring-busted/2008/04/22/1208742919040.html
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TRADE MARK
Live events
Zappa Estate take on Zappanale Festival
The future of a music festival set up in honour of Frank Zappa is in doubt following a lawsuit brought against the organisers by Zappa's widow Gail. The Zappanale festival has been running in the German village of Bad Doberan since 1990 as a way of celebrating the records of the avant-garde musician whose records had previously been illegal under the East German Communist regime. Gail Zappa, who formed the Zappa Family Trust in 2002, is demanding that she has a say in which Zappa tribute acts play the event, that the festival's logo - Frank Zappa's trademark moustache and goatee - be scrapped, that a statue of the musician in the village be pulled down and that the organizers pay £200,000 for the right to use the Zappa name. Festival organisers counter by saying that they registered the Zappanale mark almost 20 years ago. The Dusseldorf court will consider the dispute.
From CMU Daily http://www.cmumusicnetwork.co.uk
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TRADE MARK
All areas
ARTICLE "Mr Spicy" trade mark case clarifies law on keyword advertising
By Laurie Kaye & Yasmin Joomraty, Laurence Kaye Solicitors
Trade mark law is really beginning to get its head around the workings of search engine and the Internet. As you'll read, a search engine isn't regarded - at least for UK trade mark law purposes - as "using" (and so infringing) a trade mark when a trade marked term is displayed by a search engine as a sponsored link. The case only concerned the position of the search engine. It didn't look at the position of the advertiser who bought the search term. Here's the detail. A recent UK High Court decision, Wilson v Yahoo! UK Ltd, has clarified the law on keyword advertising. The use of keywords for sponsored search results does not amount to trade mark infringement. As such, advertisers who sponsor links prompted by search terms are not at risk of infringing a third party's trade mark, even if the search terms entered (and subsequent keywords displayed) form all or part of that third party's trade mark.
The claimant in this case, Mr Wilson, owned a community trade mark (CTM) for "Mr Spicy." When users of Yahoo!'s search engine entered the search terms "Mr Spicy", sponsored links were displayed to third party sites (e.g. Sainsburys) who had bid on those keywords. Mr Wilson argued that Yahoo! infringed his trade mark by displaying these links to third party sites based on the search terms "mr" and "spicy", whether the sponsor had bid on such keywords individually or in combination. Mr Justice Morgan awarded summary judgment to the defendant, Yahoo!, stating that the claim against it was "totally without merit." His reasoning, at paragraphs 64 and 65 of the judgment, was as follows: "64. I can put my conclusions really quite concisely...as follows: The trade mark in this case is not used by anyone other than the browser who enters the phrase "Mr. Spicy" as a search query in the defendants' search engine...The response of the defendants to the use of the trade mark by the browser is not use of the trade mark by the defendants. That is enough to decide the case in the defendants' favour. But the matter does not stop there. If, by some process of reasoning, one were to hold that the search engine's response to the words used by the browser was, itself, use by the defendants, in my judgment, it is not use of the mark "Mr. Spicy". What, instead, is being used is the English word "spicy" as it appears in that phrase.
65. Further, even if, contrary to what I have now held are two fatal answers to Mr. Wilson's claim, I were to hold that the defendants were using his trade mark in doing what they did, then they are not using it as a trade mark as explained in the Arsenal Football Club case. In my judgment, this case, very comfortably and clearly, comes within paragraph 54 of the decision in that case; that is, Mr. Wilson is not able to prohibit the use of the words "Mr. Spicy" even when they are being applied to goods identical to those for which the mark is registered if that use cannot affect his own interest as proprietor of the mark having regard to its functions. That is satisfied here." The " Arsenal Football Club case" to which Mr Justice Morgan refers is the case of Arsenal Football Club PLC v Reed decided in the ECJ.
It is now established in UK law that a search engine does not "use" a trade mark for the purposes of trade mark infringement by displaying keywords featuring all or part of such a trade mark in sponsored search results.
http://laurencekaye.typepad.com/laurence_kayes_blog/www.laurencekaye.com
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© 2008, Ben Challis