Article: “Let He Who Is Without Sin, Cast The First Stone”
Articles / May 2012

Click here to download this article as a PDF file (.pdf) By Ben Challis The title of this article is from the Bible, from the story of a woman who is caught committing adultery, then a mortal sin. The sinner is brought before Jesus by the less than unblemished Scribes and Pharisees: In the lesson, Jesus refuses to condemn the woman, because of the hypocrisy of those who brought the charges, and whilst he tells the woman to ‘sin no more’ he also tells her accusers to repent their sins. Now why does this remind me of what’s happening with copyright law reform at the moment? Well, let me explain.   Pontificating Pirates Reading The Pirate Bay co-founder Peter Sunde’s rather pathetic excuses and whinging repudiation of the quite proper conviction he was given by the Swedish Courts, laden with conspiracy theories and self pity, I couldn’t but think that in my heart of hearts, I do feel that copyright theft is wrong because it steals from the very people who create beauty and enjoyment in our lives. Where would we be without music, art, books, films, plays, poetry and the other marvellous fruits of human creativity? But there again,…

Article: 2011 – A Review Of The Year
Articles / December 2011

Click here to download this article as a PDF file (.pdf) By Ben Challis This is my (personal) take on copyright and the business of music in 2011. A number of threads emerged, most notably the battleground over what (if any) responsibility Internet Service Providers (ISPs) and another web intermediaries should have for the infringing acts of their users – something considered by the US Ninth Circuit Court of Appeals in UMG v Veoh, by the British High Court in Newzbin2, The Australian Full Federal Court in the iiNet case and by the European Court of Justice in Scarlet v SABAM with legislation pending in Spain and the UK. A second thread was the future role of collection societies in monetising music copyrights and the potential for enhanced but streamlined societies – at least on a pan-European basis, And finally, IF music copyrights can be monetised in the digital age with the “can pay won’t pay” generation of users, then battles remain over who gets what share of the pie with artistes beginning to challenge the accounting practices of the recorded music sector in particular. It is no secret that music is important in almost everyone’s life, but the music…

Article: A Guide To Becoming A Lawyer In England & Wales
Articles / December 2011
UK

A rough guide on how to become a lawyer written by Music Law Updates editor, Ben Challis. The ‘normal’ route to qualify as a lawyer in the UK – as a barrister or as a solicitor – is to firstly take a UK or other recognised university degree. A lot of students will take a law degree, but some students decide to become lawyers later on during their university course – this isn’t a huge problem, but those students who haven’t studied law have to complete an additional year studying for the ‘Graduate Diploma in Law’ (GDL) accredited by the College of Law. A degree takes THREE years. The Graduate Diploma in law would take a further ONE year for students who are not law graduates. So, providing you have a law degree – either a Bachelor of Laws (LLB), Bachelor of Arts in Law (BA), Bachelor of Civil Law (BCL) OR a Diploma in Law – you can then try to qualify either as a solicitor or a barrister: In very general terms, solicitors work in practices. Many solicitors work in ‘high street’ firms looking after legal matters such as family law, conveyancing, wills, property, trusts and criminal matters. Some…

Article: WELCOME TO THE JUNGLE
Articles / February 2010

Click here to download this article as a PDF file (.pdf) IS THERE AN UNWARRANTED FEAR OF LIABILITY FOR MOSHING, CROWD SURFING AND STAGE DIVING? Ben Challis JP FRSA LLB(Hons) MA MA(Law) Barrister  Visiting professor of law at Buckinghamshire New University February 2010 When I was a teenage punk rocker in the late seventies, one of the joys of going to gigs was being able to pogo in some venues – bounce around with wanton abandon and then immediately as the music stopped, look down to see what badges you could collect – to replace the ones that had fallen off in the heat of the moment. Then along came grunge and the word ‘mosh pit’ was coined and groups of (mostly) male fans would indulge in often physical, aggressive and violent mass dancing (see Upton, 2004 and Marshall, 2004). In the nineties promoters, venues, event organisers and show security all had to get used to crowd surfing and stage diving – as well as moshing – and face up to the fact that at some events the audience and sometimes the performers voluntarily took part in potentially dangerous – if not lethal  – activities. Unsurprisingly this is when the…

Article: AFTER THE GREAT WHITE TRAGEDY
Articles / December 2009

Click here to download this article as a PDF file (.pdf) WHERE NOW WITH CROWD SAFETY LEGISLATION? Ben Challis JP FRSA LLB(Hons) MA MA(Law) Barrister  Visiting professor of law at Buckinghamshire New University December 2009 The Station nightclub fire began just after 23.00 on February 20th 2003 and ended with the deaths of 100 people, the fourth deadliest nightclub fire in US history. The club, in West Warwick, Rhode Island, in the United States of America, was host to the rock band Gat White and the fire began when sparks from pyrotechnics set off by the band’s tour manager Dan Bichele ignited low cost, unsuitable and flammable sound insulation foam in the walls and ceilings around the stage, creating a flash fire which engulfed the club with astonishing speed – in less than five and a half minutes the entire venue was ablaze (Pollstar Vol 23, Issue 10). Today the site where the one story wooden building once stood has been cleared and is empty, apart from numerous small crosses remembering the dead. Indeed February 2003 was a dark month for safety in US nightclubs as just four days earlier (on the evening of September 17th) twenty one audience members…

Article: “NET PROFIT DEALS:” NOT YOUR TRADITIONAL RECORD DEAL
Articles / November 2009

Click here to download this article as a PDF file (.pdf) By Bart Day In recent years there has been a rapidly increasing use of so-called “Net Profit Deals,” as an alternative to the traditional type of record deal. This has been the particularly true with indie label record deals. The basic idea is that any net profits will be split between the artist and the record label, after ALL expenses connected with the artist’s records have been deducted by (and reimbursed to) the label from record sales income. Compare this with the traditional record deal, where the artist is paid on a royalty basis, with a typical artist royalty in the range of 12 to 15% (of the retail price) but sometimes higher (especially for more established artists). Ten years ago, out of every ten indie record deals I negotiated, only one or two were Net Profit Deals. Today it’s more like six or seven out of every ten, at least. In this article, I will first compare the basic aspects of Net Profit Deals and traditional record deals, and the advantages and disadvantages of each, both for labels and for artists. Then I will show some sample royalty calculations for both. Finally, I will provide some detail about…

Article: WHERE NEXT IN THE FIGHT AGAINST TICKET TOUTS?:
Articles / May 2009

Click here to download this article as a PDF file (.pdf) Update 28/05/09: Depeche Mode ticket re-sales banned in Germany CMU daily (28/05/08) reports that a German court has banned a secondary ticketing website from selling tickets to the upcoming Depeche Mode tour in the country. Promoter  Marek Lieberberg,  took ticketing portal Ventic, owned by Dutch company Smartfox Media, to court after they began reselling tickets for Depeche Mode gigs which they had bought off the promoter’s company, or third parties. The lawsuit was based on the fact the terms and conditions attached to the tickets ban their resale, which, therefore, technically speaking puts Ventic, and any third parties they represent, in breach of contract and because Ventic hid their intent to re-sell when buying from official sites and so they were also guilty of “fraudulent purchase”. A Munich court backed Lieberberg’s claims this week, and served an injunction ordering Ventic to stop the resale of tickets to the German leg of the Depeche Mode tour. Welcoming the ruling, Lieberberg told Billboard: “This decision is the first small step toward the long overdue regulation of ticket sales and the restriction of black market trading. Our aim must be to prevent professional ticket auctions and unacceptable commissions…

Article: WILL GREEN ISSUES BE THE NEXT LEGAL MINEFIELD?
Articles / September 2007

Click here to download this article as a PDF file (.pdf) by Ben Challis, Barrister-at-law   Whenever politicians get excited about something you can bet that legislation will follow. The modern trend for often rushed and poorly drafted legislation sees no sign of slowing down and industries like the music industry which is fragmented into a number of different discrete sectors are often very bad at making their voice heard. Even the well funded record label trade associations (AIM, the BPI and its international counterpart the IFPI) have seen little progress in promoting the extension in the term for the copyright in sound recordings from the current limit of fifty years. But the new big talking point is, of course, the environment. Whilst some still question the science of climate change, it is becoming apparent that our weather is changing and it is getting difficult to deny that the world is warming up. The Earth’s surface temperature is 0.7 degrees warmer than it was one hundred years ago – and the change is accelerating. The five hottest years on record were all in the last ten years. 2007 had the warmest spring and wettest summer ever – as attendees at…

Article: THE RIGHT IMAGE?
Articles / January 2007

Click here to download this article as a PDF file (.pdf) Does the UK need a stand alone image right for the new millennium? by Ben Challis, Barrister-at-law In this article Ben Challis examines current developments in the United Kingdom which could be used to support the concept of a coherent stand alone ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance. —————————————————- Celebrity ‘image’, ‘publicity’ or ‘personality’ rights are big business in the advertising and endorsement industries with stars as such as David Beckham and Kate Moss generating millions of pounds in revenue from the exploitation of their name, likeness and image. Until recently it would have been more than fair to say that “there are no image rights in English law, unlike the position in several other countries” but a number of recent court decisions have meant that this position needs to be re-examined. In jurisdictions where image rights do subsist, the development of the law usually follows one (or both) of two paths. The first is the development of an actionable right to privacy (or a ‘dignitarian’ right) and the second is the development…

Article: EXTENDING THE TERM
Articles / March 2006

Click here to download this article as a PDF file (.pdf) Should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended? Ben Challis, LLB MA MA(law) FRSA Barrister-at-law In this article Ben looks at the current moves by the UK’s recording industry to push for a Europe wide extension in the term of copyright for sound recordings – from fifty years to ninety five years. But Ben asks if this is the time for a complete overhaul in the way copyrights are owned and suggests that any change in term should only be made with additional provisions to protect both the customers and the creators of recorded music. Front page news in the UK trade magazine Music Week on the 4 th March 2006 was the headline ‘Timefor Action’ launching a major campaign under the ‘Extend The Term!’ banner, calling on the UK Government to take action over extending the term of copyright for sound recordings. Currently the term of copyright protection for original literary, dramatic, musical and artistic works along with Films is seventy (70) years from the death of the author or last surviving author pursuant to the…

Article: PERFORMERS’ RIGHTS
Articles / October 2005

Click here to download this article as a PDF file (.pdf) by Jamie Barnard Media, Brands and Technology Lawyer, Lewis Silkin Solicitors London, UK October, 2005 Although it took many years to achieve, performers of music have finally been given rights equivalent to those conferred on authors and other copyright owners. Rights of the intellect (avoiding reference to intellectual property for reasons that will become clear) are theoretical until the moment they can be exploited. In other words, a poem rehearsed a thousand times in Shakespeare’s mind would have no more protection in law than a spectacular soliloquy to an empty room. In the days before performances could be captured in acoustic or visual recordings, or indeed broadcast live, rights in a performance could vest in no one but the performer. Without the ability to “fix” a performance, exploitation was impossible without the performer’s consent. However, as soon as a performance could be fixed, it could be exploited by others, and the performer’s autonomy was no longer guaranteed. The synopsis at the head of this essay contains a subtle truth which should be acknowledged before performers’ rights are considered further. In society, rights exist on two levels: philosophically and legally. Whilst we may…

Article: “Noise Annoys”
Articles / September 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis, FRSA, LLB, MA(Law), MA Barrister-at-law Music Industry Lawyer Taking for its title a classic punk track by The Buzzcocks, this article summarises a variety of cases around the world where noise nuisance has been ruled upon in law. The implications of such rulings are of crucial importance to artists, promoters, venues owners and managers. IN the days when I still had some hair to spike up, I really used to enjoy going to loud (very loud) rock concerts. I remember coming home from a Ramones concert in the UK in the late seventies totally deaf – and I was still partially deaf at school the next day. As far as I know, my hearing did recover, but noise is a now major issue in the live music industry. Today promoters, venues and artists need to be aware of their legal responsibilities to a number of different people: to the audience, to their workers, and – as importantly – to neighbours who can suffer from noise nuisance. “Noise annoys”, but it can also damage hearing. Failure to comply with the law in respect of noise levels can result in fines, and, in extreme cases, claims for massive…

Article: The Digital Dilemma: How Do We Pay The Piper?
Articles / March 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis Music Industry Lawyer March, 2005   In this article summarising recent developments in digital downloading and Internet copyright, the author argues that in the digital future it will not be ‘who pays the piper’ that matters, but ‘how the piper is paid’.   TRADE associations representing record labels, films companies, software manufacturers and music publishers have for some time been making noisy protests about Internet copyright theft.  As copyright owners seek to protect their intellectual property rights (and maintain profit margins), there have been numerous legal actions worldwide against peer-2-peer file swappers, uploaders, downloaders, file swapping software providers and Internet service providers.  But is the current model of ‘paid for’ legal downloads the true business model that copyright owners want – or even need?  Moves are now afoot to develop new systems to protect intellectual property, but these systems may have long-lasting ramifications for civil liberties and personal privacy. There are, at last, a reasonable range of music files available for legal downloading – with Apple’s i-Tunes online music store leading the way. However, the more one looks at legal downloading, the more one sees this as possibly a…

Article: “Format Fortunes: Is there Legal Recognition for the Television Format Right?”
Articles / August 2004

Click here to download this article as a PDF file (.pdf) by Ben Challis (Music Industry Lawyer and Senior Lecturer in Law, Buckinghamshire Chilterns University College), and by Jonathan Coad (Specialist in Music and Media Law with the Simkins Partnership, London) High Wycombe and London, England, UK August, 2004  Most people who are involved in exploitation, global licensing and merchandising of television programmes know the value of a television format – whether it be Who Wants To Be a Millionaire?, Big Brother, Wheel of Fortune, Pop Idol, or Family Fortunes. Licensing formats – where the creator of a format licenses a broadcaster or production company in another territory with the right to produce a version of that format – is a massive global industry worth tens of millions of dollars. However, there is also a huge ‘copycat’ industry, with rival ‘versions’ of these formats being developed by other broadcasters and producers. The recent question troubling both the industry and the courts has been whether or not television formats enjoy any legal protection themselves, and whether copycats can be stopped.   IN UK law, the starting point when looking at the licence of format rights is the 1989 case of Green v Broadcasting Corporation of New Zealand where presenter Hughie Green lost a Privy Council decision when he…

Article: NEW DOOR SUPERVISOR LICENCES COME INTO EFFECT
Articles / April 2004

Click here to download this article as a PDF file (.pdf) ARTICLE: HEALTH & SAFETY Live concert industry New door supervisor licences come into effect: The PRIVATE SECURITY INDUSTRY ACT 2001. The Private Security Industry (Regulations) 2004. Ben Challis Variation in the quality of regulation and licensing of the private security industry in the United Kingdom and a small but noticeable criminal element within the industry led to the passing of the Private Security Industry Act 2001 (the Act) and the creation of the Security Industry Authority (the SIA) which has the remit to regulate and licence the private security industry in England and Wales. The SIA aims to ensure that there are professional, trained and qualified door staff working at all licensed pubs and clubs. An estimated 85,000 door supervisors and staff now have to or will have to have a SIA licence to work in licensed premises (as defined under the Licensing Act1964). The Act defines a door supervisor as those whose work is limited to licensed premises and includes guarding against unauthorised access or occupation or against outbreaks of disorder or screening the suitability of people entering premises when they are open to the public. The door supervisor licences are…

Article: NEW UK REGULATIONS FOR AGENTS & AGENCIES
Articles / January 2004

Click here to download this article as a PDF file (.pdf) New UK Regulations for Booking Agencies and Entertainment Agents – – The Conduct of Employment Agencies and Employment Businesses Regulations 2003 – By Ben Challis and Paul Fenn The Conduct of Employment Agencies and Employment Business Regulations will come into force in the United Kingdom, in the main, on 6 April 2004. The Regulations affect all employment agencies and employment businesses including entertainment agents and booking agents. The aim of the Regulations are “to make provision to secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons using their services.” The Regulations include new procedural obligations. The major impact on UK booking agencies will be the requirement to have strict “compliance” procedures in place. In general, the regulations do not have any specific changes that will conflict with the usual day to day running of the agencies in their normal course of business, but a lot of additional paperwork will need to be generated. The Agents Association are currently working on the idea of developing a “Terms of Business” (ToB) letter that be issued to artists / clients that will cover the majority of the…

Article: THE SONG REMAINS THE SAME
Articles / December 2003

Click here to download this article as a PDF file (.pdf) “The Song Remains the Same: A Review of the Legalities of Music Sampling” by Ben Challis December, 2003 Sampling copyrighted music and lyrics – without permission – remains a common activity in the area of music creation. In this article, Ben Challis explains the extent to which this practice is legal. Relevant case law examples from the UK and USA are identified for consideration. Sampling can be simply defined as the incorporation of pre-existing recordings into a new recording. It can be extended to include the incorporation of part or the whole of a ‘tune’ (a melody) and/or lyrics into another work. Copyright subsists in sound recordings, and in the music and lyrics to a song, pursuant to section 1(1) of the Copyright Designs and Patents Act 1988 (CDPA). The CDPA provides in section 16(1) that the owner of a work has a number of acts restricted to him or her, which are to: Copy the work Issue copies of the work or lend or rent copies of the work to the public Perform, show or play the work in public Broadcast the work or include it in a cable programme; and:…

Article: THE COPYRIGHT & RELATED RIGHTS REGULATIONS 2003
Articles / November 2003

Click here to download this article as a PDF file (.pdf) By Jonathan Cornthwaite, Solicitor Wedlake Bell © 2003 Wedlake Bell   The Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498)(“the Regulations“) came into force on 31 October 2003. The Regulations implement in the UK the EU’s Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (“the Directive“) which entered into force on 22 June 2001. The aim of the Directive is to harmonise across the EU the basic rights relevant to uses of copyright material in the light of technological developments in the information society and e-commerce. The rights in question are those of originators of copyright material to control reproduction and communication to the public by electronic transmission of their works, including by way of digital broadcasting and on-demand services (i.e. services whereby works are accessed by the public at a time and place individually chosen by them). The UK has implemented the provisions of the Directive by an amendment to the Copyright, Designs and Patents Act 1988 (as amended)(“the Act“). The Copyright Directorate (part of the Patent Office) considers that current UK law provides a sound basis to meet the challenges of new…

Article: REGULATED TO DEATH
Articles / October 2003

Click here to download this article as a PDF file (.pdf) “Regulated to Death: Safety Regulation in the Live Event Industry” by Ben Challis  October, 2003 This article discusses the recent event safety problems faced by the live music industry, and the effectiveness (or otherwise) of health and safety legislation. The author argues that improvements in health and safety will only take place where governments and authorities involve those in the live concert industry. At the same time it is pointed out that those in the live concert industry must be pro-active on health and safety issues – or they will find their industry “regulated to death”. SINCE the death of nine young music fans at the Roskilde Festival in Denmark in 2000, the music industry could not have faced a more challenging year than 2003. The tragic deaths of 21 clubbers in Chicago on the 17th February, was followed, within a week, by extraordinary scenes at the Station Club in Rhode Island, New York. When pyrotechnics ignited by the band Great White set fire to the sound-proofed interior of the Station Club, hundreds of people were left dead and injured – including one member of the band. Then, in July, suicide bombers…

Article: DON’T SHOOT THE MESSENGER
Articles / September 2003

Click here to download this article as a PDF file (.pdf) “Don’t Shoot The Messenger: Copyright Infringement in the Digital Age” by Ben Challis Music Industry Lawyer and Senior Lecturer in Law, Buckinghamshire Chilterns University College High Wycombe, Buckinghamshire, England, UK September, 2003 – with subsequent addenda From the humble VHS machine to Internet file swapping, the issue of hardware and software – which has both infringing and non-infringing uses – has long troubled the courts on a global basis. Recently, different technologies have faced their scrutiny: since 2000 a number of cases have been focused on peer-2-peer file swapping on the Internet, but manufacturers and others who provide, produce, write and manufacture software and/or hardware capable of copyright infringement, have also found themselves at the receiving end of lawsuits.   In 2003 the Motion Picture Association of America (MPAA) launched an action in the High Court of England & Wales against 321 Studios – which produces software which allows the copying of DVDs by consumers. The MPAA has already filed an action in the US (December 2002) seeking to prohibit the sale of 321 Studios’ software titles DVD X Copy and DVD Copy Plus. The MPAA also wants any profits from sales as recovery…

Article: THE DOCTRINE OF RESTRAINT OF TRADE
Articles / March 2003

Click here to download this article as a PDF file (.pdf) The Doctrine of Restraint of Trade in Relation to Music Industry Agreements Andrew Evans MA, Solicitor March 2003 In this article Andrew looks at the decisions of the UK courts which have, over the last thirty years, developed a body of law under the doctrine of restraint of trade which will, in certain circumstances, allow artists to ask courts to hold their excusive recording contracts and exclusive music publishing contracts unenforceablewhere the provisions of such contracts are unreasonable. All covenants in restraint of trade are prima facie unenforceable at common law and are enforceable only if they are reasonable with reference to the interests of the parties concerned and of the public. Unless the unreasonable part can be severed by the removal of either part or the whole of the covenant in question, its inclusion renders the covenant or the entire contract unenforceable. With the case of Nordenfelt v Nordenfelt, it was decided as a matter of policy that although general restraints were prima facie void, such restraints may be considered valid provided that the party alleging its validity could prove it reasonable as between the parties and in the…

Article: SAMPLING & NEW INDIE DANCE LABELS
Articles / September 2002

Click here to download this article as a PDF file (.pdf) “Sampling and New Independent Dance Labels: The Importance of Understanding Copyright Law” by Jenna Bruce Music Industry Law Correspondent Long Buckby, Northamptonshire, UK September, 2002 This article considers whether those founding and operating new independent record labels specialising in ‘dance music’ genres have sufficient knowledge of legal issues relating to copyright law, and in particular, the sampling of music. With the rapid technological advances of recent times, the accompanying issue of how much is actually known about relevant copyright law has tended to be somewhat overlooked. Consequently, many dance music record companies have had to subsequently overcome legal difficulties relating to sampling. Samples can generate considerable income for the original copyright owners, and for those who ignore clearance procedures, the issue of brevity often affords no legal protection against infringement proceedings. (N.B.: The context of this article relates solely to UK Copyright Law and is based on interviews with a number of UK music industry professionals.)   Copyright in the UK Great Britain was the first country in the world to establish a formal copyright law (Statute of Anne, 1709). Generally speaking, copyright law serves the fundamental purpose of…