Getting to grips with the MMA

Hailed as a major milestone and major opportunity for the music industry, the Music Modernization Act (MMA) of the USA was signed into law by President Trump on  the 11th October 2018.  The MMA also has a global impact due to the USA being a signatory to the Berne Convention which dictates that the copyright law of the country where music is played, performed, streamed, downloaded, etc regardless of the country in which it was created; is the applicable jurisdiction.   The MMA comprises three Bills previously introduced to the US Congress, which were enjoined and finally passed:   Title I: Music Licensing Modernization  This part of the MMA dictates how digital music providers (DMPs) of on-demand interactive audio streaming services e.g. Spotify, Tidal, Apple Music, Amazon Prime, etc, will in future obtain a blanket mechanical licence for interactive streaming or digital downloads; and the creation of a Mechanical Licensing Collective (MLC) to administer the blanket license.  It also replaces the current legal standard for setting the statutory rate by the Copyright Royalty Board (CRB) with a new standard taking free-market conditions into consideration when determining rates.   The MLC will be a non-profit quasi-government agency which will (i) collect, distribute, and…

Commodores take further action against founder member’s continued use of their name
Artists , Trade Mark / May 2018

TRADE MARK Artistes   Commodores Entertainment Corp, the corporate body behind the current incarnation of The Commodores, has asked a court in Florida to consider sanctioning a founder member of the group, Thomas McClary, as part of a long-running trademark dispute citing McClary’s continued use of Commodores Trade Marks despite a court order that should prevent him from doing this. The band formed in 1968 when two other bands mergeed: oLionel Richie, Thomas McClary, and William King jopined from the Mystics, and Andre Callahan, Michael Gilbert, and Milan Williams were from the Jays. Renowned for the R&B hits which include “Just to Be Close to You,” “Easy,” and “Brickhouse” the group is credited with seven number one songs and a host of other Top Ten hits on the Billboard charts, and their vast catalogue includes more than 50 albums. King, a founder member who chose the band’s name, is part of the current line-up of The Commodores and McClary is accused of infringing the group’s trademark and violating a 2016 court order by staging shows under the name ‘The Commodores Experience featuring Thomas McClary’. In fact the case goes back to 2014 when CEC first took legak action against McClary over his use of the Commodores brand for his…

44 arrested after roof top filming in Manhatten
Artists , Criminal Law / March 2018

CRIMINAL LAW Artistes   Police say 44 people were arrested while filming on a Manhattan roof top on what seems to be a new video for rapper China Mac, who had appealed for members of the public to attend the shoot. It seems that Mac’s public appeal drew in a fair crowd, and eventually the police say they responded to numerous calls of disorderly conduct in the early evening 37 men and 7 women were arrested and charged with criminal trespass at the Baruch Houses, a NYCHA building on 95 Baruch Drive on the Lower East Side. Two imitation rifles and one firearm was found on the scene. NYCHA released a statement Saturday night saying, “Safety and security is our top priority. This is an ongoing incident and we are working with our partners in law enforcement to resolve this as soon as possible.”  The artist’s manager said that was no permit for the shoot, there was no need for the arrests as this was just ‘art’    http://www.nydailynews.com/new-york/nyc-crime/rapper-manhattan-rooftop-video-shoot-ends-44-arrests-article-1.3797771

Male model sues Cardi B over mixtape cover
Artists , Image Rights / December 2017

IMAGE RIGHTS Artistes   Cardi B is reportedly being sued by a male model who allegedly features on the cover of her 2016 mixtape, ‘Gansta Bitch Music Vol 1‘, with the image used suggesting that the model is performing oral sex on the rapper. Although Kevin Brophy’s face cannot be seen in the image, he alleges that the distinctive tattoos on his back confirm his identity. TMZ reports that Brophy did not model for the artwork, and only became aware of the cover when a friend told him that they’d seen him “cunnilinging this rapper called Cardi B”. Brophy said that the image has negatively affected his family wife, he was worried that his wife would think he had been unfaithful to her and his young son saw the image and wanted to know “what Daddy was doing”. Brody says that he has had his tattoo of a tiger fighting a snake for over ten years, but has never met Cardi B or anyone on her team. In a lawsuit, he is suing the rapper and her management for $5 million. You can see the cover and the model here https://theblast.com/cardi-b-mixtape-lawsuit/ and more here https://www.vibe.com/2017/10/cardi-b-five-million-lawsuit-model-mixtape-cover/

Manowar and Womanowar are in a trade mark war
Artists , Trade Mark / November 2017

TRADE MARK Artistes   Manowar is a heavy metal band from New York, Womanowar are a “feminist tribute band” to…you guessed it: Manowar.  Manowar’s bassist, Joey Demaio, is the proprietor of US trade mark registration numbers: 75645524 and 85065290. The first registration is for a word device (logo) mark and the second is for a word only mark ‘Manowar’. The bassist is also the proprietor of EU registration number: 0011118041 for a word device (logo) mark. The three trade marks, amongst others, are all registered for use in class 41 entertainment services, namely, live performances rendered by a vocal and/or instrumental group.  But it appears that Manowar and not fans of their feminist tribute band ‘Womanowar’, it has been reported that Demaio’s legal representative has sent a cease and desist letter to the tribute band. The letter alleges that Womanowar’s logo is likely to “cause confusion among the consuming public”. In practice, coincidences at the beginning of marks will increase the similarity as opposed to the middle or the end.  If I were, Womanowar’s lawyer, I would certainly be arguing that the fact that one mark starts with ‘Man’ and the other ‘Woman’ means that the marks might not be…

Frank Ocean defeats estranged Father’s libel lawsuit
Artists , Defamation / November 2017

DEFAMATION Artists   Frank Ocean is riding the wave of success after he was successful in defending a $14.5 million libel lawsuit that was filed against the singer/ songwriter by his estranged father.  The lawsuit revolved around a Tumblr post written by Frank Ocean in the aftermath of the attack on the Pulse nightclub in Orlando last year, the post, which is still live, read:  “I was six years old when I heard my dad call our transgender waitress a faggot as he dragged me out a neighbourhood diner saying we wouldn’t be served because she was dirty.  That was the last afternoon I saw my father and the first time I heard that word, I think, although it wouldn’t shock me if it wasn’t”. Calvin Cooksey, Frank’s father, claimed that the incident did not take place and accused his son of staging a “publicity stunt in the wake of the Orlando attack … [and] us[ing] his father as an instrument for personal connection in order to sell records”. Cooksey then went on to sue for libel.  In response, Ocean stated seventeen ‘affirmative defences’ which he claimed should exemplify why his father’s lawsuit should be rejected. Cooksey attempted to have…

Public Enemies
Artists , Contract , Music Publishing / October 2017

CONTRACT Artists, recorded music   Flavor Flav has launched a legal action against his former Public Enemy collaborator Chuck D and various other parties associated of the seminal hip hop group over allegedly unpaid royalties.  That said it seems Flavor Flav and Chuck D will still perform together in upcoming live shows. According to TMZ, the lawsuit covers unpaid royalties and revenue shares from recording income, publishing, live performances and merchandising income generated by Public Enemy, including monies from the recent album ‘Nothing Is Quick In The Desert’ and money relating to a deal that resulted in Public Enemy action figures being sold. In the lawsuit, Flavor Flav (real name William J. Drayton) claims that he and Chuck D (real name Carlton Ridenhour) had a long-established agreement that profits from their music, merchandise and concerts would be split between them. Despite that alleged arrangement, Flavor Flav claims that Public Enemy’s business management firm Eastlink has not been sending the earnings he is owed, which have “diminished to almost nothing, and Drayton has been refused accountings, even on the items bearing his likeness, Responding to the litigation, Chuck D told TMZ: “Flav has his rights, but took a wrong road on…

Martin Garrix freed from contract with Spinnin Records
Artists , Contract , Music Publishing / October 2017

CONTRACT Recorded music, artists   A Dutch court has sided with EDM producer and superstar Martin Garrix in a legal dispute with his former label and management firm, Spinnin Records and MusicAllstars. Both of the defendants were founded by Eelko Van Kooten.   In August 2015 Garrix said that he was parting company with both of Van Kooten’s businesses and then launched a legal action, accusing his former manager of having provided “false and misleading information” when Garrix, as a teenager, had signed his deals with Van Kooten’s companies.   The producer also alleged that, by signing an artist he managed to his own label in 2012, Van Kooten had a clear conflict of interest, and that he had signed a recording deal that was in Van Koote’s own interests, but that Van Kooten should have been representing the interests of his client  – Garrix. Garrix’s father countersigned the recordng agreement with the then teenager (he is now 21).    In the original lawsuit, Garrix sought to reclaim the sound recording rights that had been assigned to Spinnin Records and 4.35 million Euros in damages.  Spinnin counterclaimed, arguing that Garrix’s unilateral termination of contract had cost the label over 6.4…

“England’s loudest band will be heard”….in a courtroom in the US
Artists , Contract / October 2017

CONTRACT Film & TV, Artistes   The ‘This is Spinal Tap’ litigation has been ongoing for some time and now and it looks like it will go ahead. Last week it was ruled that the case will proceed on the provision that some new paperwork is filed.  Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner allege that Vivendi, owner of StudioCanal, who in turn is the rights holder of the ‘Spinal Tap’ movie, of deliberate under-payment of music and other royalties.  The action started when Harry Shearer began the lawsuit against Vivendi, and not long after Christopher Guest, Michael McKean and Rob Reiner followed suit. They turned it up to eleven, and claimed that Vivendi “wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”. Vivendi called the litigation ‘absurd’ and stated that they planned to have the case dismissed. In the ruling last week the Judge stated that the creators of ‘Spinal Tap’ had not done enough to substantiate the claims of fraud, Judge Dolly Gee explained that: although the creators had “vaguely alleged the elements of a fraud claim, they have failed to plead…

Yoko Ono forces a John Lemon re-brand
Artists , Trade Mark / October 2017

TRADE MARK Artists   John Lennon’s widow, Yoko Ono, has pushed  a Polish beverage company into changing the name of its new lemondade drink which had been called “John Lemon”. The singer-artist’s legal team alleged that the product infringed on Ono’s ‘John Lennon’ trademark and his personality rights. With a Dutch action pending, Mr Lemonade Alternative Drinks agreed to change the name to “On Lemon” after Ono wrote to the company and its distributors across Europe, warning that continued infringement could result in substantial damages which were reported as 5000 euros per day that the drink was on sale, and 500 euros for every bottle sold.    Ono’s attorney, Joris Van Manen, told the East London Advertiser that the lemonade sellers “were abusing and misusing the legacy of John Lennon to sell their soda”. In addition the lawyer cited various promotional efforts by the drinks company that also alluded to the one time Beatle.   The legal action referenced a Facebook post by John Lemon Ireland showing a large wall mural of Lennon holding lemons with the brand’s logo underneath. Other advertising depicted a pair of round glasses, closely linked with the famous Beatle, next to the words “Let It Be.”  …

ZAPPA vs ZAPPA and ZAPPA PLAYS ZAPPA
Artists , Trade Mark / October 2017

TRADE MARK Artistes   What essentially is a trademark dispute has taken on dinosaur proportions due to the participants involved – the children of the late US musician, Frank Zappa, who died on the 4th December 1993.   Zappa Plays Zappa was a tribute band formed in 2006 by Dweezil Zappa, the eldest son of the late Frank; and as the name implies, performs the music of his father.  The Zappa Family Trust (ZFT) managed the late musican’s estate, with his widow Gail Zappa as its Trustee.  On July 26th, 2006 the ZFT filed a trademark registration application with the United Sates Patents and Trademark Office (USPTO) for the name ZAPPA PLAYS ZAPPA and was granted an unopposed registration on May 15, 2007. For nearly a decade, Dweezil Zappa performed under the monicker of Zappa Plays Zappa, playing the music of his late father to audiences worldwide and winning one Grammy in 2009.  So far so good.    In October 2015, Gail Zappa died leaving two of her four children – Ahmet and Diva, the younger siblings, as the Trustees of the ZFT with a share of 30% each, thereby handing control of the Trust over to them.  All four children are beneficiaries,…

Sweet home truths for Artimus Pyle
Artists , Contract / September 2017

CONTRACT Artistes   You might have thought that having an ex-member of a legendary band involved in a film bio-pic would be an asset, but a new Lynryd Skynryd biopic has been blocked because of ex-drummer’s Artimus Pyle’s involvement.  Initially producers Cleopatra Records said that the biopic, Street Survivor: The True Story Of The Lynyrd Skynyrd Plane Crash‘ was not an authorised project, and that it should be free to make the film – arguing that under its First Amendment free speech rights, it was allowed to make a film about the band and the 1977 plane crash in which two band members died. Initially US District Court Judge Robert Sweet agreed that Cleopatra was free to make the film in its own right, but then found that the involvement of Pyle in the movie venture violated the agreement (a’consent order’) he had reached with his former bandmates back in 1988. In that agreement, Pyle was given permission to tell his own life story, but he couldn’t use the band’s name or exploit the rights of the two band members killed in the 1977 crash, Ronnie Van Zant and Steve Gaines. Granting an injunction, Judge Sweet said: “Cleopatra is prohibited from making its movie about Lynyrd Skynyrd when its…

Live on stage: Avenged Sevenfold face jury trial in battle with Warners
Artists , Contract / September 2017

CONTRACT Recorded music, artistes   Metal band Avenged Sevenfold’s troubles with Warner Bros continue, stemming from a legal action brought by the major label in January 2016. The action began when the label sued the band over the band’s failure to deliver a new album. In response, Avenged Sevenfold cited the “seven-year rule” set out in the California Labor Code which allows parties to leave personal service contracts under certain circumstances after seven years have passed.  The Hollywood Reporter reports that intense record industry lobbying had meant the the Code was amended in the 1980s to allow record companies to claim lost profits on uncompleted albums. Record companies, though, only have 45 days to do so when an artist exercises the right to terminate. At the heart of the didpute is Avenged Sevenfold’s album The Stage which was released via Capitol Records, and at the same time Warner Bros. put out a Avenged Sevenfold ‘Greatest Hits’. Most commentators then presumed the legal dispute had been settled – but not so – and now the “seven-year rule” will be tested before a jury. The Hollywood Reporter estimate that if Avenged Sevenfold (ultimately) lose the court battle, it could cost them between $5 million and…

Travis Scott takes action against former management
Artists , Contract , Employment Law / August 2017

CONTRACT / EMPLOYMENT LAW Artistes   Travis Scott (Jacques Webster), the US rapper, singer, songwriter and record producer, has accused the artist management company owned by music industry veteran Lyor Cohen (now  top music man at YouTube) of violating California’s Talent Agencies Act. It’s a two way battle: LCAR Management sued Scott earlier this year claiming that the rapper, who had been a client, owed the firm $2 million. Now, according to Billboard, Scott has responded by accusing LCAR of Talent Agencies Act violations by allegedly booking shows for him without the approval of his actual talent agent, and therefore acting as if a talent agency in itself – without a licence from the California state Labor Commissioner. Scott is seeking to void his contract with LCAR on the basis of the alleged violations. There are further allegations including that LCAR allegedly used Scott to promote Cohen’s other business venture, even though he had no affiliation with that business. LCAR is yet to respond to Scott’s claims. http://www.completemusicupdate.com/article/travis-scott-accuses-former-management-of-violating-californias-talent-agencies-act/

Gene in the horns of a dilemma
Artists , Trade Mark / July 2017

TRADE MARK Artistes   Gene Simmons (yes, he of rock band Kiss) attempts to register a trade mark for the widely used heavy metal ‘devil horns gesture always looked doomed to fail, and sure enough, they have.   The Hollywood Reporter reported that Simmons had applied to the U.S. Patent and Trademark Office (USPTO) for protection of the gesture in class 41. Simmons claims he first used it in commerce in 1974, although it’s fellow rocker Ronnie James Dio (Rainbow, Black Sabbath) who generally is credited with popularising the gesture, and has said he learned it from his Italian grandmother as a way to ward off the evil eye. In the application, the sign is described as “a hand gesture with the index and small fingers extended upwards and the thumb extended perpendicular”. The registration covered “services having the basic aim of the entertainment, amusement or recreation of people” and the “presentation of works of visual art or literature to the public for cultural or educational purposes”. The application further identified the types of services for which registration was sought as “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”.    Simmons said that “the mark was…

New lawsuits over Jefferson Starship name, the Hotel California name and …. a cat
Artists , Trade Mark / June 2017

TRADE MARK Artistes     A founding member of Jefferson Starship has filed a legal action in a move designed to prevent the current version of the legendary band from using the name Jefferson Starship. The band evolved out of the group Jefferson Airplane in 1974 and also produced the ‘spin off’ band Starship (itself a name change after a legal dispute). Craig Chaquico,  who was member of the Jefferson Starship line-up, and subsequently played with Starship, has brougt the action: The Jefferson Starship name was retired in the mid-1980s after a little legal battle between members. In the 1990s, Paul Kantner, a founder member of both Jefferson Airplane and Jefferson Starship and the first member of Jefferson Airplane to use the Jefferson Starship name, began to use the Jefferson Starship name again. Chaquico, who had also played on  three of Kantner and Grace Slick’s solo albums, now says that he gave permission for Kantner’s later use of the band’s Jefferson Starship brand, but his agreement and consent was for Kantner personally and again came after litigation and arbitration in 1993 (Kantner died in 2016), and that previous inter-band agreeements and settlements mean the current band members do not have his permission to continue using the name,…

BBC in pain over Sir Cliff’s legal bills
Artists , Privacy / June 2017

PRIVACY Broadcasting, Artistes     The BBC has hit out at Sir Cliff Richard’s legal spend after the broadcaster provided controversial live coverage of a raid on Richard’s Berkshire home by the South Yorkshire Police in an investigation into claims of sexual abuse that were made against the singer in 2014.  No charges were made in relation to the allegations of historical sexual assault, with the Crown Prosecution Service dropping the case because of insufficient evidence.  Richard claimed that the BBC’s coverage of the case, facilitated by South Yorkshire Police, breached his privacy rights and, in doing so, inflicted “profound and long-lasting” damage on the singer’s reputation. The case is ongoing, with the BBC denying any wrongdoing.  At a High Court hearing the legal costs were set out, with the singer having already spent £525,437 on the civil case, in addition to £369,414 spent on solicitors who dealt with the legalities around the police raid. The BBC’s lawyers argue that those costs are “disproportionate” for a case of this kind. Unless any settlement can be reached, the case will now proceed to a full court hearing. The BBC has said it will defend its coverage of the raid.   https://www.lawgazette.co.uk/news/bbcs-fury-at-900k-pre-action-legal-costs-of-sir-cliff-richard/5060954.article

Defamation case against Kesha’s former lawyer has been given the go ahead
Artists , Defamation / May 2017

DEFAMATION Artistes   Mark Geragos, the former lawyer for Kesha, who acted for the pop star in her legal battle against the producer Dr Luke, is now on the receiving end of legal action from the producer’s lawyers.    A New York judge has blocked efforts by Geragos to have the defamation case filed by Dr Luke (Lukasz Gottwald) dismissed. The case revolves around comments the ‘celebrity lawyer’ made on Twitter and the website TMZ. Set against a myriad of cross allegations, primarily made against producer Dr Luke where the singer says the producer manipulated her career and sexually abused her, in an unsuccessful attempt to free herself from record and publishing contracts with Dr Luke’s label and Sony, Geragos being the wise lawyer that he is, tweeted “Guess who the rapist was?” with a link to an article with Lady Gaga, who  explained in an interview that she had once been subject to a sexual assault. When subsequently asked on twitter if he meant Dr Luke, he tweeted “#bingo”. Later the lawyer told TMZ he said this “because it’s true”.    Geragos argued that neither his tweets nor the TMZ comments should be taken seriously and had sought to have…

When will I see my royalties again?
Artists , Contract , Music Publishing / March 2017

CONTRACT Recorded music, artistes   Three members of The Three Degrees, the female vocal group who had hits with  “When Will I See You Again”, “The Runner”, “Woman In Love” and “My Simple Heart”, are suing Sony Music Entertainment, seeking to recoup decades of royalties they say were withheld by a former manager and his widow. The Three Degrees were formed in 1963 in Philadelphia. The group’s membership has changed over the years, but for purposes of the lawsuit it is current members Valerie Holiday (a member from 1967 to present) and Helen Scott (1963-1966, and 1976 to present) and the estate of Fayette Pinkney (a founder member, and with the group until 1976). Pinkney died in June 2009. They were discovered by producer and songwriter Richard Barrett, who produced the original line-up on their first song, “Gee Baby (I’m Sorry)”, for Swan Records, in 1965. Barrett also signed Shiela Ferguson, who went to to become a member. According to the complaint, the group has “never received one penny” of royalties under an oral agreement struck in the mid- to late-1970s with former manager Barrett, for a 75% share of revenues. The plaintiffs say Barrett’s widow, Julie, and her company, Three Degrees Enterprises, have instead kept…

Kylie (M) stops Kylie (J) taking the name
Artists , Trade Mark / March 2017

TRADE MARK Artistes   Kylie Minogue has reportedly won – or at least settled – an important legal battle with Kylie Jenner over the latter’s application to trade mark their shared first name. The reality TV star filed paperwork at the U.S. Patent and Trademark Office in 2015, aiming to register ‘Kylie’ as a trademark for “advertising services” and “endorsement services”. Minogue objected in February 2016, stating in her opposition that Jenner’s trademark application would “bring on confusion for both the celebrities and their brands.” In her opposition, Minogue representatives KBD stated that she was an “internationally renowned performing artist, humanitarian and breast cancer activist” who already owns Kylie related trademarks in the US in, as well as the website www.kylie.com (since 1996), and referred to Jenner as a “secondary reality television personality” and also raised concerns about Jenner’s social media activity stating “Ms. Jenner is active on social media where her photographic exhibitionism and controversial posts have drawn criticism from Disability Rights and African-American communities.”  It now appears the matter has been settled. Minogue owns trademark registrations for “Kylie Minogue Darling,” “Lucky – the Kylie Minogue musical,” and her full name, “Kylie Minogue”. Her registered protection extends to perfumes and toiletries, music and sound recordings, live entertainment,…

Little River Band Trade Mark Dispute
Artists , Trade Mark / February 2017

TRADE MARK Artistes   Australia’s The New Daily has a well written piece on the trials and tribulations of founding (but former) members of Little River Band, one of the country’s first bands to crack America when their track “Help Is On Its Way” entered the US Top Twenty in November 1977. The song, written by lead singer Glenn Shorrock, peaked at number 14 on the Billboard charts and  Between 1977 and 1983 Little River Band had eleven top 20 hits in the United States, leading the way for an Oz invasion that included success for Air Supply, Men At Work, INXS, Savage Garden, Wolfmother, Tame Impala and many more. But for Shorrock and other LRB founding members, The New Daily says “the anniversary of the band’s breakthrough in America is tinged with bitterness.” And why is that? Well, since 1998, all of the original members, including Shorrock, Graeham Goble, Beeb Birtles and Derek Pellicci have been blocked from performing their hits in the US and Australia under the “Little River Band” banner because they no longer control the band’s trademarks. These are owned by Stephen Housedon, a British-born musician and songwriter, who was invited by the founding members to join LRB as lead guitarist in…

Dweezil faces siblings’ challenge to his use of the Zappa name
Artists , Trade Mark / January 2017

TRADE MARK Artists   Dweezil Zappa has  announced a public campaign to protect his right to use the ‘Zappa’ name. Hosted by Pledge Music, The Others of Intention campaign is offering original music downloads and merchandise – donors are invited to participate in the campaign by purchasing items ranging from a digital access pass to Zappa-inscribed guitar picks to limited edition Zappa artwork and vinyl record albums as well as a select assortment of one-of-a-kind Zappa guitars for sale. Last May, Dweezil published a blog titled “It Can Happen Here” at his website. The open letter to Zappa fans described an upcoming tour and strongly alluded to a pending legal battle to save his right to the surname Zappa where he said: “Beyond that, there have been a few other changes. Mainly name changes. As you may or may not know I now tour under my own name, Dweezil Zappa, instead of Zappa Plays Zappa because my brother Ahmet and my sister Diva who run the Zappa Family Trust (ZFT) claimed ownership of the name Zappa Plays Zappa which my mother trademarked in 2007. The heavily tweezed language appropriating that trademark was designed by my mother to distinguish between the 2 uses of Zappa. One…

Avenged Sevenfold face a trial – AND a competing ‘best of’ from their former label
Artists , Contract , Record Labels / November 2016

CONTRACT Recorded music, artistes   Avenged Sevenfold surprise announcement of the arrival of their seventh studio album, on Vivendi SA’s Capitol Records, after playing several songs on the roof of Capitol’s circular building in Los Angeles that was streamed online via a virtual reality app, may have come as some surprise to their former; record label, Warner Music Group, who sued the band earlier this year in California state court for breach of contract after the band left the label without delivering the final album that was apparently due under that deal. The Wall Street Journal says the battle centres on provisions in California’s state labor law that prevents contracts for “personal service” – and that includes recording artistes, actors and athletes –  from extending beyond seven years, but also explicitly permits record companies to sue acts for damages if the departing artiste fails to deliver the agreed-upon number of recordings during that time. Warner Music’s case against Avenged Sevenfold seems to be the first such suit claiming damages.   The surprise release of the new album, titled “The Stage,” by a rival label ahead of the trial could be a welcome development for Warner Music, as it will test the band’s current…

FTC takes a look at hidden endorsements
Artists , Competition / September 2016

COMPETITION Artistes   The US Federal Trade Commission (FTC) is planning to regulate ‘hidden’ endorsements by celebrities who promote brands and products through selfies, blogs, Facebook and Instagram postings, and other social media platforms  – without ever revealing they are being paid. The Federal Trade Commission has also said that hashtags like #ad, #sp, #sponsored – common forms of disclosure – are not always enough. The FTC will be putting the onus on the advertisers to make sure they comply. Michael Ostheimer, a deputy in the FTC’s Ad Practices Division said: “We’ve been interested in deceptive endorsements for decades and this is a new way in which they are appearing,” adding “We believe consumers put stock in endorsements and we want to make sure they are not being deceived.” The FTC had instigated a case against Warner Bros. Home Entertainment Inc., which was settled, over charges that it deceived customers by paying internet influencers such as PewDiePie (who has about 50 million followers on YouTube) to promote the video game Middle-Earth: Shadow of Mordor with positive reviews, without disclosing that they were paid and told how to promote it. In March the FTC issued a complaint against Lord & Taylor for paying fashion influencers…

Apple suggests new royalty rate for streaming music

COPYRIGHT Music publishing, internet, artistes     Apple has filed a new proposal with the US Copyright Royalty Board which it says it hopes will “simplify” songwriting royalties in the States by 2018. Apple has suggested that all on-demand streaming services should pay songwriters a statutory rate of 9.1 Cents every 100 plays – a per-stream rate of $0.00091, or $910 per million streams, or $910,000 for a billion – thought to be more that Spotify’s ‘free’ ad supported platform would generate.   And in Australia, commercial radio broadcasters will have to pay a licence fee for songs streamed over the internet after a Copyright Tribunal ruling. The long-running legal battle between the Phonographic Performance Company of Australia (PPCA) and Commercial Radio Australia (CRA) finally reached a conclusion after nearly seven years. CRA had previously argued that as it already pays a licence fee for music for radio and shouldn’t have to pay again for making  that broadcast available over the internet. Now the Copyright Tribunal has finalised the terms of the scheme where commercial radio broadcasters will pay simulcast licence fees for songs streamed over the internet.   And Screen Producers Australia (SPA) has reached agreement  with performers for the broadcasting, repeats and…

Does Axl’s photograph claim carry any weight?
Artists , Copyright / July 2016

COPYRIGHT Artistes, photography   Guns N Roses and now AC/DC frontman Axl Rose has filed six DCMA take down notices in what is seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. The requests were filed on behalf of Rose by anti-piracy firm Web Sheriff, and all target examples of the same picture hosted on Blogspot and GoogleUserContent domains which have has spawned a series of ‘Fat Axl’ memes relating to the singer’s increased weight with labels such as ‘Sweet Pie of Mine’, ‘Take Me Down To the Bakery City’ and ‘Welcome to McDonalds’.   The original image was taken by Winnipeg Free Press photojournalist Boris Minkevich, who was initially unaware that any action was being taken over the image he snapped – and who is reported byTorrentFreak to have said that the only copyright being infringed is his: “The photo was stolen off our website with no permission granted by the Winnipeg Free Press”. However Web Sheriff told TorrentFreak that all photographers at the concert were said to have been required to sign an agreement passing copyright ownership of images taken to Rose’s company, The photographer cannot remember whether he signed the agreeement…

Kanye West’s ‘Famous’ music video: publicity rights vs the First Amendment
Artists , Image Rights / July 2016

IMAGE RIGHTS Artistes   By Emma Perot   Kanye West’s music video for “Famous” has sparked outrage for portraying naked celebrities in bed, in the form of life-like wax figures. It is not simply the nudity, but the individuals portrayed, which has led to criticism; Rihanna is seen lying next to former boyfriend and abuser, Chris Brown, alleged serial rapist Bill Cosby is featured, as well as Taylor Swift, Anna Wintour and Amber Rose. Subsequent to the release of the video, Kanye tweeted, “Can somebody sue me already #I’llwait” but later deleted it.   While Kanye waits, this Kat contemplates on whether publicity rights can help those featured (this Kat thinks specifically of Taylor Swift who, lying next to Kanye in the video, is also mentioned in the song lyrics, ““I feel like me and Taylor might still have sex. Why? I made that b**ch famous.”). It is an unusual issue, as publicity rights are usually invoked by celebrities against companies who use them in unauthorised advertising and merchandising, rather than their celebrity peers. Also, there have been few cases which have been brought to protect moral rather than economic interests. An exception is Waits v Frito Lay, 978 F. 2d…

Ex Deep Purple member rocks up 20 years later to register band name as trade mark
Artists , Live Events , Trade Mark / June 2016

TRADE MARK Artistes, live events sector   By Emma Perot   Purple seems to be a popular colour in the world of trade marks. Recently, this Kat reported on Cadbury’s ill-fated attempt to preserve an existing colour mark. Thanks to Katfriend Plamen Ivanov, this Kat has learned of another purple trade mark dispute, this time concerning the word mark ‘Deep Purple’. Deep Purple is the name of a British rock band, formed in 1968. A former member of the band, Richard Blackmore, applied to register ‘Deep Purple’ as a word mark for certain goods and services in class 9, class 25, and class 41. As this Kat will explain, the attempt to register the mark was largely unsuccessful.   Ian Paice, one of the members of Deep Purple, opposed Blackmore’s application, based on Article 8(4) of the Community Trade Mark Regulation (now EU Trade Mark Regulation). This article provides for a relative ground of refusal for registration where an earlier proprietor of a non-registered mark has a right to prohibit use of the mark under the law of the member state. In the case of the opponent, the relevant law was the English tort of passing off.   On 17 February 2015, the Opposition Division  accepted registration…

Artistes call for major reforms of take down policies and the ‘largely useless’ DMCA
Artists , Copyright , Internet / May 2016

COPYRIGHT Internet, artistes     Some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) are calling on Congress to reform existing US copyright law saying that the Digital Millenium Copyright Act (DMCA) is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. The DCMA was signed into law by President Bill Clinton in 1998 and aimed to ready copyright law for the digital age. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks are just some of music’s biggest names want to make it harder to pirate music online. The musicians are asking lawmakers to make “drastic reforms” to the Act. “Artists spanning a variety of genres and generations are submitting comments to the federal government’s U.S. Copyright Office …. demanding reforms to the antiquated DMCA which forces creators to police the entire Internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites,” says a statement issued by the Recording Industry Association of America: Recording artistes including deadmau5, Tony Bennett, Pearl Jam and Bette Midler have filed petitions to the U.S. Copyright Office detailing their struggles…

Lil’ Wayne looks to UMG for his share of profits
Artists , Contract / May 2016

CONTRACT Artistes, recorded music     Regular readers will no doubt have noticed recent articles featuring claims from Lil Wayne that he is owed tens of millions of dollars for discovering and nurturing successful recording artists Drake, Nicki Minaj and Tyga – but that this money has been unlawfully retained by Universal Music Group according to a federal lawsuit filed by the rapper-producer’s attorneys Monday in California. SoundExchange, the not for profit  CMO that collects and distributes digital performance royalties on behalf of copyright owners, is also named as a defendant in the suit. Lil Wayne (Dwayne Carter Jr.) claims Universal diverted tens of millions of dollars of his profits to repay itself for the $100 million it advanced to Cash Money Records Inc. Carter’s Young Money Label is a joint venture with Universal’s Cash Money Records, designed to manufacture, distribute, promote and exploit performances of new recording artists discovered by Carter and signed to the label.  Carter claims that Universal and non party Cash Money entered into a series of agreements which, among other things, diverted his “substantial” profits – to repay Cash Money’s debts. According to the complaint: “With Universal’s knowledge of Lil Wayne’s rights to partial ownership and profits…

Feyoncé – B asks the court to put a stop to it
Artists , Trade Mark / May 2016

TRADE MARK Artistes     Beyoncé  has issued legal proceedings against Texas company, Feyoncé Inc, for “brazenly” selling merchandise that infringes her intellectual property.   A year ago it was reported that Beyoncé’s legal team had complained to online peer2peer marketplace Etsy the sale of “Feyoncé” mugs. Those items were promptly removed, but other products featuring “Feyoncé” remained widely available.   The lawsuit has been filed in Manhattan federal court and includes three defendants from San Antonio. The singer is seeking unspecified damages. The suit claims that Feyoncé has ignored the singer’s requests to stop selling their products, and that their items not only confuse consumers, but have caused the pop star irreparable harm. The Feyoncé site sells a variety of shirts, hoodies, tank tops and other clothing items. However the lawsuit focusses on a mug stamped with the phrase, “Feyoncé: He put a ring on it.” Whilst this could be a pun on “fiancé,” somewhat unsurprsingly the lawsuit claims the mug was specifically designed to make a reference Beyoncé’s 2008 hit, “Single Ladies”, which includes the lyric “Cause if you liked it then you should have put a ring on it”. Beyonce is of course married Jay Z in…

Tik Tok on the Ke$ha Appeal
Artists , Contract , Music Publishing / April 2016

CONTRACT Artistes, recorded music by Leeza Panayiotou LLB(Hons)   As readers will remember, in February 2016 the New York Supreme Court refused to grant a preliminary injunction to the singer Ke$ha (real name Kesha Rose Sebert) that would enable her to record outside of her contract with Kemosabe Records, an imprint label of Sony. As a result of the Court’s decision, Ke$ha was left under contract with Kemosabe to produce a further 6 albums[1].  Now, Ke$ha has filed an Appeal, claiming that the Court’s decision is akin to allowing modern day slavery.   By way of background, Kesha signed to Kemosabe when she was 18 years old and “her 2009 single Tik Tok is the biggest selling single ever by a female solo artist”[2] and Kemosabe label boss Dr. Luke (real name Lukasz Gottwald), remains “one of the most successful songwriters and producers of the century so far, working on music for stars including Miley Cyrus, Britney Spears and Katy Perry”[3].   Ke$ha claimed in her 2014 lawsuit that she had grounds to be released from her record contract as Dr. Luke had sexually assaulted her, harassed her and intended to inflict emotional distress on her throughout her career[4]. Dr. Luke then countered with suits for breach of contract[5],…

UK law firm launches lawsuit against Michael Jackson’s Estate over unpaid bill
Artists , Contract / April 2016

CONTRACT Artistes     A British law firm has sent a $204,204.36 invoice to Michael Jackson’s Estate In the years since Michael Jackson’s death, The pop icon’s estate has faced a number of other claims, including a royalty row with Quincy Jones and a profit suit from the director of “Thriller.” The latest claims comes from a London-based law firm that claims it is owed more than $200,000 in fees for work it did for the music icon in the two years leading up to his death.  Atkins Thomson Solicitors have now launched the action in California against entertainment attorney John Branca and music executive John McClain who are the executors of Jackson’s estate. The claim is for breach of contract and Atkins claims it provided legal and other services to Jackson from 2007 through 2009, and in the months leading up Jackson’s  death the firm “provided hundreds of hours of services to Jackson across nearly a dozen matters.”  The suit says: “Defendants have failed to honor Jackson’s obligations under, and has materially breached, the agreement with Atkins, and any implied covenants therein, by failing to make the payments as required” In November 2009, the firm filed a creditors claim for $204,204.36 and…

Iranian Metal Band Reportedly Jailed For Making ‘Satanic’ Music and Blasphemy
Artists , Censorship / March 2016

CENSORSHIP Artistes     The international metal community is rallying behind members of the Iranian groove/nu/thrash metal outfit Confess, who have reportedly been arrested in their native Iran — and potentially face execution — for a range of “offences” including playing heavy metal, owning an independent record label and corresponding with Western media. Metal Nation Radio was the first to break the story of musicians Nikan Siyanor Khosravi and Arash ‘Chemical’ Ilkhani after a message from an anonymous “close friend” of the musicians who also claimed to be the administrator of the band’s official Facebook page: The message asked MNR to publicise the case saying “He really needs you now by [sharing] it, post[ing] it and [talking about] it in the network and your radio shows and your co-workers and friends”  and “We … need your help.” It appears that that the men were  arrested by the intelligence unit of Sepah-e Pasdaran, (Army of the Guardians of the Islamic Revolution) on 10 November last year — a matter of weeks after the band released their most recent album, In Pursuit Of Dreams — and were held in solitary confinement in Evin Prison, in north-west Tehran, until 5 February this year, when they were…

Surely there is only ONE Kylie? And its NOT Kylie Jenner
Artists , Trade Mark / March 2016

TRADE MARK Artistes     Surely there’s only one Kylie – the Australian pop star Kylie Minogue? Surely not – and Ms Minogue is now mounting a legal bid to prevent Kylie Jenner claiming ownership of the name. Jenner, who appears in the reality TV show Keeping Up With the Kardashians, has applied to trademark the name “Kylie” to the USPTO (US Patent & Trademark Office). KDB, an Australian firm representing Minogue, filed their opposition to the application, claiming that allowing Jenner to take the Kylie name will cause confusion for Minogue fans and dilute her brand. KDB goes on to describe Ms Jenner as a “secondary reality television personality”. In making their case for which Kylie is the “better Kylie, they go on to list criticism Ms Jenner has faced from African-American communities and disability rights groups.   Ms Jenner, a half sister to Kim Kardashian, is just 18 but has a social media following in the tens of millions and has just launched her own make up line. Ms Minogue, a former soap star,  is 47 with over a dozen studio albums to her name. Minogue currently controls trade marks for “Kylie Minogue”, “Kylie Minogue Darling” (the name of her perfume brand)…

Deep Purple – failed companies can’t sell our copyrights
Artists , Copyright / March 2016

COPYRIGHT Sound recordings, artistes     In the wake of news that ReSolve Partners has been appointed as the administrator for Limited Deep Purple (Overseas) Ltd (“DPO”) and HEC Enterprises Ltd (“HEC”) and is asking for expressions of interest from third parties for the companies and their assests, Deep Purple themselves say their assets cannot be sold without their agreement, and that they had commenced legal proceedings against DPO and HEC before the firms fell into administration. The remaining members of Deep Purple – Ian Gillan, Ian Paice, Roger Glover – along with Victoria Lord, widow and executor of the Estate of Jon Lord, sent the following statement to MBW It has come to our attention that two companies, Deep Purple (Overseas) Ltd (“DPO”) and HEC Enterprises Ltd (“HEC”) have recently gone into administration and that ReSolve Partners Limited (“ReSolve”) have been appointed as administrators for both companies. We believe ReSolve are inviting offers from third parties for the business and assets of the two companies. We, (Ian Gillan, Ian Paice and Roger Glover, being continuing members of Deep Purple and Victoria Lord, representing Jon Lord, who was a member of the group until his death) commenced legal proceedings against both DPO…

Roc Nation files $2.4 million suit against Rita Ora
Artists , Contract / March 2016

CONTRACT Artistes     Jay​ ​Z‘s Roc Nation is suing Rita Ora for breach of her 2008 recording contract and failing to deliver four of the promised five albums in the deal The $2.4 million Manhattan civil suit filed by Roc Nation comes just six weeks after Ora herself sued the company in California, claiming executives had ‘pushed her aside’ when they started representing professional athletes. In the new suit, Roc Nation counters that it’s spent over $2 million developing and marketing the British pop singer’s still-unreleased second album saying it took Ora from an “unknown singer” and “has tirelessly promoted [her] career, investing millions of dollars in marketing, recording and other costs, which was instrumental in guiding Ms. Ora to her current level of success and fame.” The Los Angeles suit is still pending. Roc Nation says it filed the countersuit in Manhattan because Ora’s contact specifies that any litigation between the parties must take place in New York. Ora’s attorney, Howard King, said, “Jay Z has personally and graciously promised Rita complete freedom from Roc Nation, the details of which are now being finalized. “We believe that Roc Nation’s distributor, Sony Music, has required Roc Nation to file this action…

Ke$ha’s rape allegation does not free her from her Sony recording contract
Artists , Contract / March 2016

CONTRACT Recorded music, artistes     Ke$ha broke into tears when a Manhattan Supreme Court judge refused to let her walk away from a six-album deal with Sony — and the man she claims raped her. The singer had sought to nullify her recording contract because it brought her into contact with super-producer Dr. Luke, whose real name is Luke Gottwald. The 28-year-old, whose real name is Kesha Rose Sebert, claims that Dr. Luke drugged her with a pill that made her black out and raped her shortly after her 18th birthday in California. He was never criminally charged. Gottwald has countersued, claiming Kesha’s allegations were part of a “campaign of publishing outrageous and untrue statements”. Sony has offered to let her work with another producer, but Ke$ha said she feared the company won’t promote her music as heavily if she’s not working with Gottwald, their biggest hitmaker. Ke$ha’s lawyer, Mark Geragos, had argued that Sony’s promise to connect her to another producer was “illusory” because even if the recordings were made, the record company wouldn’t promote them. He contended that Sony had more invested in Dr. Luke than in Ke$ha, and it would do everything to protect him because he makes them…

UK tax relief can apply to recording advances
Artists , Taxation / March 2016

TAXATION Artistes     The UK’s Treasury minister has confirmed that the 2001 tax relief which allows creators to average their income over two consecutive years can be applied to recording artists when they are paid advances by their record labels.  The relief recognises the volatile nature of earnings in the creative sector – authors and artists often have one very profitable year followed by one that is less so: Where profits are “wholly or mainly derived from literary, dramatic, musical or artistic works or designs” it is possible to average the profits for successive tax years. This reduces the burden of the more profitable year, and can in some circumstances drop one year’s tax bill into a lower band, meaning less tax is due. UK Music and the Featured Artists Coalition sought the clarification on exactly if and when the relief applied to recording artists who receive an advance from a label are covered by the system, because the rule is slightly ambiguous saying that “profits must come from royalties or disposal of the works rather than from the provision of services”. DAvnavces are of course advance payments of royaltieds that may become due at a later date. In a…

Avenged Sevenfold look to leave Warners
Artists , Contract , Employment Law / February 2016

CONTRACT / EMPLOYMENT Recorded music, artistes     After releasing four studio albums for Warner Bros. Records, Avenged Sevenfold are trying to end their as-yet-unfulfilled recording contract, using California’s “seven-year rule.” In turn, the label has filed a breach-of-contract lawsuit against the band, seeking compensatory damages. The “seven-year rule” enshrined in the California Labor Code allows parties to leave personal service contracts under certain circumstances after seven years have passed. Record industry lobbying led to amendments to the 70-year-old law in the 1980s, to allow record companies to claim lost profits on uncompleted albums. However record companies only have 45 days to do so after an artist exercises the right to terminate. “Avenged Sevenfold recently exercised the rights given them by this law and ended its recording agreement with Warner Bros. Records,” the band’s attorney Howard E. King said. Since the 2004 contract was signed, King says the label “underwent multiple regime changes that led to dramatic turnover at every level of the company, to the point where no one on the current A&R staff has even a nodding relationship with the band.”  In its lawsuit dated January 8th, 2016, Warner Bros. says Avenged Sevenfold’s decision to utilise the “seven-year rule” is unlawful: The label says…

J-pop ‘no-sex’ ban unconstitutional
Artists , Contract / February 2016

CONTRACT Artistes     Young pop stars in Japan have won the legal right to have boyfriends or girlfriends after a court ruled that provisions in management contracts banning relationships were unconstitutional. The Tokyo District Court said that a ‘no dating’ clause, standard for young performers, violated the right to happiness guaranteed by the Japanese Constitution. Chief Judge Katsua Hara threw out a 9.9 million Yen (£59,000) claim against a former singer brought by her management company, thought to be from the seven piece girl band Aoyama Saint Hachamecha High School. The suit was instigated back in September 2014 when Miho Yuuki (19) and Sena Miura (22) left the band.   The management company MovingFactory had said “The parental guardians signed contracts that said the members would not have relationships with fans and would not neglect their work” adding “They have betrayed the members of the group and all their fans. We cannot forgive this”  Last month the management company for idol group N Zero announced a lawsuit against a member and a fan for having “private contact”. In the current case Chief Judge Hara saidL “Relationships are a right exercised by an individual to enrich life. They are part of…

Metallica provide practical help to tribute act
Artists , Trade Mark / February 2016

TRADE MARK Artistes     Metallica have overruled their own lawyers, who had issued a cease and desist letter against tribute band Sandman, ordering them to stop using the band’s name and logo to promote their entirely Metallica based act. To ensure that Metallica’s “overzealous attorney” would not start fresh proceedings against Sandman, the band agreed to license their logo to the tribute band for a fee of $1 which Metallica picked up the tab for that themselves. “I just got off the phone with Metallica’s management and they and the band had no idea their lawyers sent us the papers”, Sandman guitarist Joe Di Taranto told the One On One With Mitch Lafon podcast. “Lars [Ulrich, the Metallica drummer] got wind of everything today and was completely pissed that they sent us the papers for something so stupid. They are really sorry about everything and want us to go back to using any logos that we want. They are even going to license us the logo for $1 – which they said we don’t even need to pay. So all in all they were really cool and wanted to make sure we know that they fully support us. Pretty crazy. All…

Taylor Swift Seeks More Trade Marks
Artists , Trade Mark / January 2016

TRADE MARK Artistes, merchandising   Taylor Swift has filed trade mark applications for 20 words and phrases in the U.S including “Blank Space” and “1989” (the name of her last album) as well as “Swiftmas”. Whilst some commented that Swift appeared to be trying to gain trade mark protection for large swathes of the English Language (including Republican Congressman Justin Amash from Michigan), the Tantalizing Trademark blog notes that the reason Swift’s lawyers filed for so many applications is that trademarks only protect specific categories of goods and services. A trademark for a category covering handbags won’t apply to cars, for instance. And in some cases, including Taylor’s “1989,” the application isn’t for the word mark itself, but for a stylized writing of it as a logo.   Swift has also  been accused of wrongfully using an artist’s work to promote 1989. US artist Ally Burguieres complained on Facebook after Swift used a wrongly-credited drawing of a fox identical to one of her watercolour designs. Swift removed the image but the artist claims she took months to compensate her, that it wasn’t enough and she was told she had to give it charity. Swift’s representatives say Ms Burguieres is just…

‘The Slants’ trade mark CAN be registered – for now
Artists , Trade Mark / January 2016

TRADE MARK Artistes   A U.S. appeals court has overturned the legality of refusals of the U.S. Patent and Trademark Office’s to register offensive trade marks. The case, which concerned a band’s name, had been closely watched as the decision could impact on the attempt by the NFL’s Washington Redskins to overturn the cancellation of its trademarks. The NFL team had seven trade marks cancelled on the grounds the mark disparages American Indians. The new decision vacates the U.S. Patent and Trademark Office’s refusal to register the name of the Asian-American rock band The Slants: The Portland, Oregon-based band, which plays “Chinatown dance rock,” appealed because the USPTO had twice rejected its name for a trademark on the grounds it disparages Asians. The Slants’ front man Simon Tam (Simon Young) had argued  that the band adopted the name as a way to reclaim what had become a racial slur. In an interview after this decision he rejected any concern that the ruling would open the floodgates for racism or hate speech. The U.S. Court of Appeals for the Federal Circuit sitting ‘en banc’ said approach taken by the USPTO violates the First Amendment of the U.S. Constitution. The court struck down the…

Horan libel case proceeds in the right direction
Artists , Defamation , Music Publishing / January 2016

DEFAMATION Artistes, publishing   A libel case brought by One Direction’s Niall Horan against the Daily Star will proceed, after a judge refused the tabloid’s request to have the case dismissed. The case centres on an allegation made in an article in July 2015 that implied Horan had used drugs during a night out with Justin Bieber and Cody Simpson. Horan’s legal team have claimed that claims their client was “staring blankly” and that there were “rumours the singers were using hard drugs”, coupled with some ‘Breaking Bad’ references, made it very clear what the Star was alleging. The newspaper has countered by saying that there is enough doubt its story – at one point stating of hard drug use that “there is no suggestion that this is the case”  that readers would not have interpreted the article in the defamatory way that Horan claims. Mr Justice Dingemans said that the tabloid’s piece was at least capable of bearing the defamatory meaning that Horan claims. Therefore, he said, this case should proceed to a full hearing, and the Star’s application for dismissal was rejected.   http://www.completemusicupdate.com/article/niall-horan-wins-in-round-one-of-libel-action-against-the-star/

Radiohead sue Parlophone over unauthorised deductions
Artists , Contract , Music Publishing / December 2015

CONTRACT Recorded Music, Artistes     Radiohead are suing their former record label, Parlophone, over a deduction of £744,000 from digital download royalties which had been paid to the band from 2008 and 2009 sales, and which they contend were unauthorised. Radiohead’s contract with Parlophone ended in 2003 with the album Hail to the Thief. At the time the deductions were made the band were signed to EMI – but that catalogue has now moved to Warners.   Explaining the case, lawyer Howard Ricklow from Collyer Bristow said: “Most recording contracts contain a provision that royalties for recordings on ‘future formats’ will be paid at a rate to be agreed. The band contends that no such rate was agreed with Parlophone for digital downloads and that the deductions made in 2008 and 2009 for costs apparently incurred in 1992 and 1998, long before the advent of digital downloads, were in breach of the contract”. Warner Music had tried to have the matter dismissed on the basis that there is a contractual time limit for the band to dispute deductions made against their royalties, and that deadline had passed. But Radiohead’s team argued that, as there was no specific agreement about the band’s digital…

Hook looks to former bandmates for a revised new order
Artists , Contract , Trade Mark / December 2015

CONTRACT Artistes, Trade Mark   The BBC reports that former New Order bassist Peter Hook is suing his ex-bandmates Bernard Sumner and Stephen and Gillian Morris for millions of pounds in a row over royalties. Hook claims he has lost out on more than £2.3m since the three other band members set up a company without him to handle the band’s income in 2011 and Hook has accused them of “pillaging” the group’s assets. The trio say they have treated Hook fairly and that the guitarist’s stake of the royalties is reasonable. At a High Court hearing, Judge David Cooke ruled that Hook was not acting out of “spite” and cleared the way for him to take his complaints to a full trial.   When record label Factory collapsed in 1992, the original bands members (including Hook) formed a company named Vitalturn to hold all of New Order’s rights. Hook leftr the band in 2007, but the other members carried on without him, and continued to use the New Order name. Hook still owns 25% of Vitalturn but was not involved when the other three – who own 75% – set up a new company, New Order Ltd, in 2011. They granted the new company worldwide…

REMEMBERING PARIS
Artists / December 2015

We remember members of the music family who lost their lives at the Bataclan, Paris, 13/11/15   Nick Alexander, the Eagles of Death Metal’s Merchandising Manager, has been killed in the Paris terror attacks at the Bataclan. His family said: “It is with huge sorrow that we can confirm that our beloved Nick lost his life at the Bataclan last night. Nick was not just our brother, son and uncle; he was everyone’s best friend – generous, funny and fiercely loyal” adding “Nick died doing the job he loved and we take great comfort in knowing how much he was cherished by his friends around the world. Thank you for your thoughts and respect for our family at this difficult time. Peace and light.” Africa Express’ Robin Aitken posted “Nick had worked with us on Africa Express. I remember a friendly, helpful guy who added his bit of joy to our musical events. I can only begin to imagine the tragedy that his family and close friends must be going through, and I just feel sad for his life being cut short by people who have so badly misunderstood the way to build a better world”. Nick’s girlfriend of three…

Performers speak up for their rights in the big IP debate

CONTRACT / COPYRIGHT Artistes, music publishing, recorded music, internet   The Featured Artists Coalition and the globally-focused International Artists Organisation have issued an urgent call to the European Parliament demanding it ensure that performer rights be included in the European Union’s current review of copyright law. The move comes as part of the campaign called Artists In Europe which is a bid to “ensure that protection for artists’ intellectual property sits at the heart of the new legislation”. Continuing recent debates in the artist and songwriter communities, the FAC and IAO say that to achieve a “vibrant creative cultural music industry in the digital age” both the business and law-makers need to ensure there is transparency throughout the music value chain and that there is an enhanced duty of care from corporations so that artists know their interests are protected. Artists should also share in the profits from all the ways their music is exploited. FAC boss Paul Pacifico says: “To ensure a vibrant creative cultural music industry in the digital age, it is essential that the review of copyright currently underway in Europe puts the rights of creators and artists front and centre of any new legislation. If not, we stand to lose an…

A fair share: should we take a lead from France on fair digital payments to artistes?
Artists , Copyright , Music Publishing / November 2015

COPYRIGHT Recorded music, internet, music publishing, artistes     The new digital music Code Of Conduct ushered in by the French government and signed up to by the major and independent labels, publishers, digital services and artist representatives has laudable aims (even more laudable if you are French)  and seeks to ensure the following: – The development and vitality of the music industry; – The preservation of cultural diversity and growth in innovation; – The creation of greater transparency in interactions between participants; – A fair distribution of value created by musical recordings. The provisions relating the the share of the ‘digital pie’ allocated to the service itself, songwriters and their publishers, record labels, recording artistes and the services themselves have long been a bone of contention between artistes and their labels, between labels/artistes and songwriters/publishers, and between the content owners and the actual digital services. In the absence of a fiduciary duty being imposted on record labels to treat their recording artistes fairly, ongoing confusion about how equity stakes gained by the majors in services such as Spotify, and a general lack of transparency in who gets what from the digital pie, are these French reforms something the EU and US…