EU Copyright Directive will finally be implemented in UK law
EU

COPYRIGHT Artists, Record Labels, Music Publishers, Internet, Film, Television Legislation implementing the European Copyright Directive has finally been laid before the UK Parliament. Among other things, it extends the UK’s copyright laws to deal with digital piracy, albeit ten months behind the EU’s deadline. The Copyright and Related Rights Regulations 2003 will amend the Copyright Designs and Patents Act of 1988 and will come into force on 31st October. The Copyright Directive, passed in 2001, was the EU’s attempt to update copyright protection to the digital age. It is also the means by which the European Union and its Member States will implement two 1996 World Intellectual Property Organisation (WIPO) Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The new Regulations are available at: http://www.legislation.hmso.gov.uk/si/si2003/20032498.htm

Limp Bizkit sued by irate fans
Artists , Contract / November 2003
USA

CONTRACTS Artists Limp Bizkit are being sued by 172 rock fans who attended July’s infamous Chicago show, which ended after only 17 minutes when the band were booed off stage. A lawsuit was submitted yesterday to District Court in Illinois. The band were supporting Metallica on the Summer Sanitarium tour, at Chigaco’s Hawthorne Racetrack. The suit alleges that the plaintiffs were expecting a ninety minute show but the band’s front man, Fred Durst, fired-off a tirade against the city and the audience, before challenging the entire crowd to a fight. The breach-of-contract suit has been filed by Michael Young, the lawyer acting on behalf of the 172 aggrieved concertgoers, who are seeking a $25 refund from the July 26 show opening the door to up to 40,000 re-payment claims. See: www.dotmusic.com

Criminal Proceedings Against Lindqvist ECJ C101/01
Artists , Data Protection , Internet , Privacy / November 2003
Sweden

DATA PROTECTION AND PRIVACY Internet, Artists This case arose out of a simple set of facts. A religious instructor for the Swedish Church, Bodil Lindqvist, posted up webpages on her home computer which were aimed to help parishioners prepare for their confirmation. The administrator of the Swedish Church’s website provided a link from their website to the defendant’s webpages at her request. The webpages contained information about colleagues of the defendant with first names and in some instances full names, address and telephone numbers. The defendant also remarked that one colleague was on half time work because of medical reasons – she had injured her foot. The web pages were mildly humerous but the defendant had not asked for permission from any of the parties featured. She also had failed to notify the Datainspektionen, the relevant Swedish supervisory authority, of her activities. The Defendant was charged with (i) processing personal data by automatic means with notification to the relevant authority (ii) processing sensitive personal data without authorisation and (iii) transferring the data to a third party [via the internet].The Gota Hovratt (Court of Appeal, Gota) referred the case to the European Court of Justice for clarification of EC Directive 95/46/EC….

APPLES’s iTUNES FACES LEGAL CHALLENGE
Artists , Internet , Record Labels , Trade Mark / October 2003
USA

TRADEMARK Record labels, artists, internet Apple’s new and successful online music store, iTunes, which recently sold its ten millionth download at 99cents, and the Apple iPod, face a legal challenge from Apple Corp, the management company and record label behind the Beatles which was set up in 1968. Apple Corp, based in London, have served papers in the High Court seeking injunctive relief and damages to prevent Apple Computers using the word “Apple” and the Apple Computer’s logo in relation to iTunes and the iPod. It seems that now the Computer company’s activities have spread into the ‘music’ business, Apple Corp is seeking to protect its own business reputation, goodwill and name and is relying on an earlier 1991 agreement it reached with Apple Computers which purportedly prevented Apple Computers using the name Apple or an Apple mark in the music business. Apple Computers were set up in 1977 and the name is allegedly Steve Job’s tribute to the Beatles. The 1991 agreement (which itself was a result of previous litigation over a previous agreement) resulted in Apple Computers agreeing that their use of the Apple name and logo would be restricted to use with computers and never with music….

JACKSON FALTERS IN SUIT AGAINST MOTOWN AND UNIVERSAL
Artists , Copyright , Record Labels / October 2003
USA

COPYRIGHT Artists, Record Labels A California judge has dismissed part of Michael Jackson’s lawsuit against Universal Music in which he claimed he was owed royalties for songs he recorded before 1979 (see Law Updates, June 2003). In a January 1980 settlement with Motown, Jackson gave up rights to songs released before 1979, giving the record label exclusive rights to the name the Jackson 5, the group of Jackson-family members that first put the star on the map. Jackson contends he should be paid for any songs he recorded alone or with his brothers that were re-released after the 1980 agreement. Jackson is seeking payment of royalties he claimed are owed and recission of the 1980 agreement. Los Angeles Superior Court Judge Emilie Elias found on Friday that Universal had not breached any fiduciary duty, since Jackson gave up the rights to the pre-1980 tunes.

MS DYNAMITE WINS PRIVACY PROTECTION FOR HER HOME
Artists , Privacy / October 2003
USA

PRIVACY Artists It is a common problem for celebrities to find themselves beset by unwanted attention, harassment or worse because details have made their way into the public domain about where they live. An application in June 2001 by Heather Mills McCartney for an order preventing publication of details of a new property she had bought was rejected by the High Court. However, this was the result, at least in part, of the newspaper having offered an undertaking not to publish details. The law remains unclear as to the extent to which it will protect a celebrity’s Article 8 privacy rights so far as their home is concerned. The Press Complaints Commission has taken a big step towards recognising the need for such protection in an adjudication published last week on behalf of Ms Dynamite. Ms Dynamite complained to the PCC, through her record company Polydor, that an article (and accompanying photograph) headlined “Chart Star’s dream house is right next door to my mum” published in the Islington Gazette on 26 March 2003 intruded into her privacy contrary to clause 3 of the PCC Code of Practice. This PCC provision closely mirrors the Article 8 wording and reads as follows:…

US TRADE MARK PROTECTION EXTENDED TO FOREIGN MARKS EVEN WHERE THESE MARKS ARE NOT REGISTERED IN THE USA
Artists , Internet , Record Labels , Trade Mark / September 2003
USA

TRADE MARK Record Companies, Artists, Merchandisers, Internet International Bancorp LLC et all -v- Societe des Bains et du Cercle des Etrangers A Monaco (May 19, 2003) In a split decision a United States Court of Appeal (Fourth Circuit) held that a non-US Company’s use of a non-US trademark in advertising in the United States was enough to give that company trade mark protection under US law despite the fact that the mark was not registered in the US. In US law an unregistered mark can be protectible if it is (a) distinctive and it is (b) “used in commerce”. In this case, concerning the company (SBM) which owns the Casino de Monte Carlo, the court held that extensive advertising in the US and sale of services to US citizens in the USA was sufficient to satisfy the second requirement – that mark was used in commerce – even though the actual business was based in Monte Carlo and the services provided outside of the USA. SBM spent more than $1 million annually on trade fairs, mail shots, telephone marketing and sponsorship. SBM Company maintained a small office in New York. SBM had a valid trade mark registration for ‘Casino de Monte Carlo’ in Monaco….

LEGO BLOCK NOT PROTECTED AS A TRADE MARK IN CANADA
Artists , Internet , Patents , Record Labels , Trade Mark / September 2003
Canada
Denmark

TRADE MARK, PATENTS Record Labels, Artists, Merchandisers, Internet Kirkbi AG & Lego Canada Inc. -v- Ritvik Holdings Inc. In this case the Federal Court of Appeal held that the design of a lego block was not protected by Trade Mark in Canada and that functional features of a toy design are properly the subject of patent law and not subject to trade-mark protection. The facts of the case where that the Canadian company Megabloks made a building brick very similar to those produced and distributed for decades by the Danish manufacturer, Lego. In an attempt to halt the sale of the Mega Bloks bricks, Lego brought a passing off action on the basis that the Mega Bloks bricks infringed the (unregistered) trade-mark rights of Lego in the distinguishing guise of the bricks particularly the protruding knobs by which the bricks interlocked. The Court of Appeal upheld the decision of the Federal Court, Trial Division who dismissed Lego’s claim and held that due to the doctrine of functionality, the look of the Lego bricks could not be the subject of a valid trade-mark. Functionality is the proper subject matter of patents, not Trade Marks. The Federal Court of Appeal commented that Lego, through…

WIPO RESOLVES EURAIL DOMAIN NAME DISPUTE
Artists , Internet , Record Labels , Trade Mark / September 2003
EU

TRADE MARK Record Companies, Artists, Mechandisers, Internet An administrative panel of the World Intellectual Property Organization (WIPO) has recently decided a case under the Uniform Domain Name Dispute Resolution Policy (UDRP) between Eurail (the European joint venture supplying tickets and passes for rail and ship travel in Europe) as Complainant and Epasses of San Francisco as Respondent. Eurail uses the names “Eurailticket” and “Eurail Pass” for its tickets and passes. It has registered “EURAIL” and “EURAILPASS” as trade-marks in the US and other countries. Epasses has a web site offering Eurail Passes and other tickets for use on railways in Europe. The dispute concerned the domain names www.eurail.biz, www.eurailpass.biz and www.eurailpasses.biz. which the Respondent registered. The Panel applied the three-part test set out under paragraph 4 of the UDRP. (1) It ruled that the disputed domain names are confusingly similar to the Complainant’s registered trade-marks. (2) However, a distinction for the purpose of the second part of the test was made between eurailpass.biz and eurailpasses.biz on the one hand and eurail.biz on the other. In the former case, there was no evidence that Epasses use of the domain names and sites had been illegitimate, especially in view of its legitimate…

THE COPYRIGHT CAGE
EU
USA

COPYRIGHT Record Companies, Internet, Music Publishers, Artists, Merchandisers, Radio, Television INTRODUCTION : This article, by Professor Jonathan Zittrain, suggests a new approach to copyright law in the digital age. The article was first published on www.legalaffairs.org in their July/August edition. Bars can’t have TVs bigger than 55 inches. Teddy bears can’t include tape decks. Girl Scouts who sing “Puff, the Magic Dragon” owe royalties. Copyright law needs to change. By Jonathan Zittrain. A couple of years ago I was talking with a law school colleague about cyberlaw and the people who study it. “I’ve always wondered,” he said, “why all the cyberprofs hate copyright.” I don’t actually hate copyright, and yet I knew just what he meant. Almost all of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don’t reject our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what’s with our uniform discontent about copyright? I think an answer can be gleaned from tax scholars. Without decrying the concept of taxation, every tax professor I’ve met regards the U.S. tax…

‘BLUE’ NAME DISPUTE RESULTS IN OUT OF COURT SETTLEMENT
Artists , Record Labels , Trade Mark / August 2003
UK

TRADE MARK Artists, Record Labels Boy band BLUE have resolved their dispute with Scottish rock band BLUE over the use of the name with what can be best described as a ‘Mexican stand-off’ where both bands will continue using the same name. As part of the settlement, costs were awarded against the Scottish band but will not be applied for by the ‘New’ Blue or their label (EMI/Virgin) – provided the ‘Old’ Blue do not bring any trade mark application or other formalisation over use of the name. Formed in 1973, Old Blue had argued that their career was being hampered by the new boy band using the same name as them. The Old Blue last had a hit in 1977 when their single Gonna Capture Your Heart got to number 18 in the UK charts. The band have released sixteen singles and seven albums and are primarily a recording band selling CDs by mail order and the Internet. New Blue, formed in 2000, have had seven top 10 hits and three number 1 records in the UK charts in the last three years. Both bands had worked with rock legend Sir Elton John, who had been expected to give evidence. Mr…

FOOTBALL EMBLEMS ARE COPYRIGHT
UK

COPYRIGHT Artists, Record Labels Football Association Premier League Ltd and others -v- Panini UK Ltd The Court of Appeal has held that the badges and crests of individual English football clubs were the artistic works of the clubs and were entitled to copyright protection. The unlicensed inclusion of these badges, crests and emblems on the stickers of Panini’s Football 2003 Sticker Collection was not an ‘incidental inclusion’ in an artistic work within the meaning of section 3(1) of the Copyright Designs and Patents Act 1988 and therefore an injunction was granted to restrain the defendant distributing those stickers and albums. Lord Justice Chadwick held that where an artistic work in which copyright subsisted appeared in a photograph – because it was part of the setting in which the photographer found his subject, then it could be properly said to be an integral part of the photograph. But to qualify as an exception to infringement, the inclusion of the work must be incidental and on the facts of the case, clearly the inclusion of the badges, crests and emblems was not incidental as it was the basic object of the defendant’s production of stickers and albums. Source: The Times, Law Report, 17 July 2003 See http://www.timesonline.co.uk/legalarchive…

THE CULTURE, MEDIA & SPORTS COMMITTEE TELLS IT LIKE IT IS
Artists , Privacy / August 2003
EU
UK

PRIVACY LAW Artists The House of Commons Culture, Media and Sports Committee has published its long-awaited report on Privacy and Media Intrusion. In it the Committee made a series of recommendations. The one which has gathered the most publicity is that the Government “bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives.” As the Committee rightly says: “This is necessary fully to satisfy the obligations upon the UK under the European Convention on Human Rights.” This was illustrated recently by the Peck case. There is already by means of the Human Rights Act a legislative provision providing some protection for individuals against intrusions into the private lives of individuals. This is by the importation (albeit obliquely) of Article 8 of the European Convention on Human Rights into our law. Here are some of the other recommendations made by the Committee. The Committee recommended that the PCC “should consider establishing a dedicated pre-publication team to handle enquiries about [prior restraint] issues from the public and liaison with the relevant editor on the matters raised.” This is because it is at present only by…

EUROPEAN COURT OF JUSTICE DECISION PAVES THE WAY FOR HARMONISED EC TAXATION FOR TOURING ARTISTS
Artists , Taxation / August 2003
EU

TAXATION Artists Arnoud Gerriste Case C-234/01 12 June 2003 The European Court of Justice has paved the way for the harmonisation of EU taxation of touring artists by radically overhauling the German system of taxation of foreign entertainments. The system had long been derided by artists and their advisors and the International Live Music Conference (ILMC) has campaigned for root and branch reform of the system. The Fifth Chamber’s decision of 12 June held that with respect to foreign artist taxation in Germany: (1) foreign artists must have the right to deduct expenses prior to a performance profit being taxed (2) when profitable, foreign artists must have the right to be taxed at the normal, progressive tax rates applicable in Germany (or indeed any member state) and (3) the free taxable amount [for example a personal allowance which can be earned free of tax] is not applicable to foreigner entertainers when calculating the tax payable. The court ruled that ‘Article 49 of the EC Treaty and Article 50 of the EC Treaty preclude a national provision which, as a general rule, takes into account gross income when taxing non-residents, without deducting business expenses, whereas residents are taxed on their net income, after…

ELECTRONIC FRONTIER FOUNDATION LAUNCH CAMPAIGN TO CHANGE US COPYRIGHT LAW
USA

COPYRIGHT Record Labels, Music Publishers, Internet, Artists The Electronic Frontier Foundation (EFF) today launched a “Let the Music Play” campaign urging the more than 60 million U.S. citizens who use file-sharing software to demand changes in copyright law to get artists paid and make file-sharing legal. The EFF Let the Music Play campaign counters the Recording Industry Association of America’s (RIAA) announcement that it will file thousands of lawsuits against individuals who use file-sharing software like Kazaa, Grokster, and Morpheus. “Copyright law is out of step with the views of the American public and the reality of music distribution online,” said EFF Executive Director Shari Steele. “Rather than trying to sue people into submission, we need to find a better alternative that gets artists paid while making file sharing legal.” EFF’s Let the Music Play campaign provides alternatives to the RIAA’s litigation barrage, details EFF’s efforts to defend peer-to-peer file sharing, and makes it easy for individuals to write members of Congress. EFF will also place advertisements about the Right to Share campaign in magazines such as Spin, Blender, Computer Gaming World, and PC Gamer. “Today, more U.S. citizens use file-sharing software than voted for President Bush,” said EFF Senior…

GLOBAL SALES OF ILLEGAL CDs TOP 1 BILLION UNITS
Brazil
China
EU
Mexico
Poland
Russia
Spain
Taiwan
Thailand
Ukraine
USA

COPYRIGHT Record Labels, Music Publishers, Artists, Internet A report published by the International Federation of the Phonographic Industry (IFPI) shows that the illegal music market is now worth $4.6bn (£2.8bn) globally. It believes two out of every five CDs or cassettes sold are illegal. The IFPI said much of this money is going to support organised criminal gangs, dispelling the myth that it is a “victimless crime”. Jay Berman, chairman of the IFPI, said: “This is a major, major commercial activity, involving huge amounts of pirated CDs. The IFPI’s top 10 priority countries where labels want a crackdown on piracy are Brazil, China, Mexico, Paraguay, Poland, Russia, Spain, Spain, Taiwan, Thailand and Ukraine. The IFPI also pointed out that when factoring in unlicensed downloads then “only one in three music products in the UK is authorised.” Despite the increase in the amount of CDs illegally produced and sold around the world, up 14% on 2001, there has also been a rise in the amount of CDs and recording equipment seized. The number of discs seized on their way for public sale was more than 50 million, a four-fold rise on the previous year. The IFPI is concerned in two main…

DEAL MEMOS AND CONTRACTS: PRETTY PICTURES v QUIXOTE FILMS (2003)
France

CONTRACT LAW Record Labels, Music Publishers, Television, Radio, Artists, Internet With the quick-fire thrust and parry of email becoming increasingly popular as a means of communication, the possibility of inadvertently creating a binding contract is an ever present danger. However, a recent case which came before the High Court has reinforced the basic legal principle that if the parties only intend to be bound by signature of a formal legal document, then an affirmation of the principal terms of the proposed agreement in email correspondence will not suffice for that purpose. In Pretty Pictures v Quixote Films the question came before the court as a preliminary issue. The claimant, a French film distributor, alleged that a binding contract had been concluded with the defendant, the owner of a film called ‘Lost in La Mancha’. Over a period of two or three months the claimant and the defendant’s sales agent had corresponded by email culminating in an email from the claimant setting out his ‘revised offer’. This, in effect, was a bald statement of the principal terms: minimum guarantee, term, territory, rights granted and income splits. There followed further negotiations but ultimately an accord was reached and the defendant’s sales agent sent an…

DEAL MEMO IS NOT A CONTRACT BUT INVOICE CAN BE. RAP IS A ‘FOREIGN’ LANGUAGE
UK

CONTRACT LAW Record Labels, Music Publishers, Artists Confetti Records & Others -v- Warner Music UK Ltd This UK case involved the purported licence of a sample of the track Burnin by the claimants to the defendants. The first claimant (Confetti) had been negotiating with the defendants about use of the track and had issued a ‘subject to contract’ deal memorandum which both parties signed. The first claimant then issued an invoice to the defendant and sent a recording of the track. Mr Justice Lewison held that ‘subject to contract’ had the same meaning in the music industry as other businesses and the document was not binding as such. It was for the defendant to prove otherwise. As the defendant had failed to do this, the deal memorandum was not binding. But Mr Justice Lewison went on to decide that the subsequent sending of an invoice with the track constituted an offer which was subsequently accepted by the defendant’s conduct in making use of the track and hence a contract had come into existence so there could be no copyright infringement as permission to use was granted. The third claimant, Andrew Alcee, brought a claim under Section 80 of the Copyright Designs and Patents…

US COURT DIMISSES COPYRIGHT INFRINGEMENT CASE
USA

COPYRIGHT Artists, Record Labels, Music Publishers A federal judge has dismissed a copyright infringement lawsuit against Britney Spears, her record label (Zomba/Jive) and BMG Music Publishing, saying two Philadelphia songwriters failed to prove the pop singer copied the melody of one of their songs. U.S. District Judge Berle M. Schiller ruled last week that Michael Cottrill and Lawrence Wnukowski couldn’t provide enough evidence to prove Spears had access to their song titled, “What You See Is What You Get,” when she recorded, “What U See (Is What U Get).” Cottrill and Wnukowski said they gave one of Spears’ representatives a copyrighted version of their tune in late 1999 after being asked to submit songs for consideration for the singer’s upcoming album. But Schiller, citing defence testimony, said the melody of Spears’ song was completed by the beginning of November 1999, before Spears and her representatives “would have had access to a copyrighted version of plaintiffs’ song.” The Judge went on to say that there weren’t enough similarities between the two songs to prove copyright infringement. The four men credited with writing Spears’ song, released on her best-selling second album, “Oops! … I Did it Again,” testified that they hadn’t heard…

HARRODS v DOW JONES
Australia
UK
USA

DEFAMATION Artists, Record Labels, Music Publishers, Internet In December 2002 the Australian decision of Gutnick v Dow Jones established the principle that where a newspaper or magazine was published on the internet, a claimant could bring an action in ANY jurisdiction where that magazine could be received, in this case in the state of Victoria in Australia even though the newspaper was published in the US. In this case (with the same defendant) Mr Justice Eady was presented with the following case. On 31 March 2002 Harrods issued a spoof press release proposing a “first-come-first-served share option offer” by way of an April Fool’s joke. The Wall Street Journal picked up the press release with a story headed “The Enron of Britain?” The article suggested that “If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.” The evidence before the court was that only ten copies of the Wall Street Journal are distributed in this country from the United States. There was evidence of only a very small number of hits on the article as published on the web. By contrast, the Wall Street Journal has a national distribution within the United…

SPIKE LEE WINS SURPRISE VICTORY IN ACTION OVER VIACOM’S ‘SPIKE’ CHANNEL
USA

IMAGE RIGHTS Artists, Record Labels Director Spike Lee issued proceedings against US media giant Viacom over plans to rename a cable channel Spike TV. Viacom had said that it wanted to make the name change in order to attract more male viewers. Lee’s application included a request for injunctive relief against Viacom’s use of the name Spike, saying he had never given his consent for it to be used. Lee – real name Shelton Jackson – had included affidavits from actors Ed Norton and Ossie Davis and former senator Bill Bradley. The signatories said they had thought of Lee when they heard about Spike TV and believed he had become affiliated with the network. Viacom argued that the word ‘spike’ was a common and ordinary word which they were free to use. Viacom, which also owns broadcasters such as CBS, MTV, and VH1 had been directed by the court to explain why it should not be barred from using the name. In a surprise decision the 5 member Manhatten Court held that Viacom did have a case to answer and ruled that Viacom could not use the name until a further hearing in September 2003. Acting Justice Tolub held that…

DJ’s CASE STRENGTHENS CASE FOR UK PRIVACY LAW
Artists , Privacy / July 2003
UK

PRIVACY Artists UK DJ Sara Cox has been successful in an action against Sunday newspaper The People after the newspaper published nude shots of Cox and boyfriend John Carter on their honeymoon whilst relaxing on a private beach. Cox had originally complained to the UK’s Press Complaints Commission, the self-regulatory body which issues and adjudicates on the PCC’s code of conduct. The photographs which were in clear breach of the code resulted in a 63 word apology from the newspaper. Cox, unhappy with this result, brought an action in the High Court which resulted in a settlement awarding the DJ ÿ£50,000 as well as costs estimated at ÿ£200,000. See: The Guardian 9 June 2003. COMMENT : The result of this case is bad news for the Press Complaints Commission and bad news for self-regulation by the press in the UK. The Editor of the Sunday People sat on the PCC’s main committee as well as the code of conduct committee and the paper was clearly aware of the code. This case highlights the failures of the PCC and strengthens the case for more robust privacy laws in the UK. Recent cases (Naomi Campbell -v- Mirror Group Newspapers and Catherine Zeta Jones…

ASSOCIATED NEWSPAPERS PROTECT ‘MAIL’ NEWSPAPER MARK
UK

TRADE MARK Artists, Record Labels, Internet Associated Newspapers, owners of the Daily Mail, Mail on Sunday and Evening Standard suceeded in a High Court action to prevent rival publishing group Express Newspapers from calling their planned new evening newspaper theEvening Mail or the London Evening Mail. Mr Justic Laddie held that the the proposed title could confuse the general public into believing that the new paper came from the Daily Mail’s stable rather than from a different publishing group. COMMENT : In the United Kingdom trade names and brands are protected both under legislation as statutes (under theTrade Mark Act 1994, EC Directive 89/105) or under the common law doctrine of ‘passing of’. Trade Mark legislation allows for registration of distinctive recognisable marks with an initial protection for twenty years, in effect giving the owner of a registered mark an effective licence for use and exploitation for this period. Protection can now be extended by registering the mark as a Community Trade Mark. Passing off protects traders’ reputation, goodwill or products. No registration is needed but a brand or name must be in established use. It was held in Spalding -v- Grange (1915) that ”no person is entitled to represent his goods as…

US COURT HAMMERS MAJORS’ ACCOUNTING PRACTICES
Artists , Copyright , Record Labels / June 2003
USA

COPYRIGHT Record Labels, Artists On April 22 2003, the U.S. District Court based in Los Angeles, dealt a blow to BMG and Sony, deciding that record clubs owned by the two majors had to face a court action scheduled for January 2004. The court found that the record clubs failed to pay for mechanical licenses on the premium records given away (roughly 6-8 cents per song, per copy sold). Songwriters’ lawyers estimate that the record clubs failed to account for approximately $100 million dollars a year. The following comment is from respected industry author – Moses Avalon, in his latest e-newsletter Moses Supposes. His site can be found at www.mosesavalon.com. It is an interesting attack on what might be seen as the hypocritical attitude of the labels in pursuing P2P file sharers and yet at the same time maintaining archaic and unfair accounting and trade practices. The Recording Artists’ Coalition have made similar comments (see Law Updates March 2003 and www.recordingartistscoalition.com). “All this makes you wonder why the RIAA (which is funded by companies who own both major publishing houses and record clubs) scream bloody hell over KazaA and Napster, and yet ignore this? Could it be to distract us from the fact…

MICHAEL JACKSON LAUNCHES ACTION AGAINST MOTOWN
Artists , Copyright , Record Labels / June 2003
USA

COPYRIGHT Artists, Record Labels Michael Jackson is suing his former label Motown Records and its parent company Universal Music Group. Jackson claims that Motown, the label he signed with in 1969, breached a contract dated January 1980 that required the label to pay him royalties for certain pre-1976 recordings made by Jackson as a solo artist and the Jackson 5. In exchange for those royalties, Michael Jackson had agreed to waive his rights to other pre-1976 recordings. The 1980 contract was actually a settlement agreement stemming from lawsuits filed in 1975 and 1976 by the members of the Jackson 5 against Motown over accounting and contractual obligations. Jackson is now seeking complete and accurate accounting from Motown with full payment of all royalties due. Jackson is also asking the court to rescind the 1980 agreement and the underlying contract allowing Jackson to regain ownership and title to his master recordings and compositions. For more details see http://www.rollingstone.com/news/newsarticle.asp?nid=18038

CALIFORNIA SENATE TO CONSIDER DRAFT LAW TO OBLIGE RECORD LABELS TO CALCULATE ROYALTIES
USA

COPYRIGHT Record Labels, Artists, Music Publishers A Bill designed to provide Californian recording artists with accurate accounting has won approval from the Senate Judiciary Committee. The Bill (SB1034) introduced by Senator Kevin Murray (D) would make it a “fiduciary duty” for labels to accurately calculate royalty earnings owed to artists. Music industry officials oppose the Bill, saying it would impede labels from developing new business models in the face of surging piracy. RIAA (Recording Industry Association of America) President Cary Sherman testified Tuesday that the bill “would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party.” However, Committee members countered that only one party, the record company, holds the financial information to calculate royalties. The Recording Artists’ Coalition have repeatedly claimed that recording contracts are outmoded and complex, lack clarity in royalty calculations and contain numerous unjustifiable royalty reduction and discount provisions. See http://www.billboard.com/bb/daily/article_display.jsp?vnu_content_id=1883484

UGANDAN MUSIC PIRACY PROMPTS NEW COPYRIGHT SANCTIONS
Artists , Copyright , Record Labels / June 2003

COPYRIGHT Record Labels, Artists Widescale CD and cassette piracy in Uganda have prompted the Uganda Performing Right Society (UPRS) to push for legislation to criminalise piracy. UPRS estimate that over ten million units are copied and sold in Uganda annually depriving copyright owners of substantial royalty payments. Source:http://allafrica.com/stories/200304240277.html 

BRITISH SINGER MISS KIER ALLEGES THAT HER CHARACTER RIGHTS ARE BEING USED WITHOUT CONSENT
Artists , Copyright , Trade Mark / June 2003
UK

COPYRIGHT, TRADEMARK Artists, Merchandising The flamboyant British singer Lady Miss Kier believes a video game has stolen her image including her pink ponytailed hair, short skirt and knee-high boots and signature cry of “Ooh La La.” Miss Keir, who found fame with Deee-Lite, filed the suit in the Los Angeles Superior Court this week against the U.S. arm of video game publisher Sega, alleging the 2000 game “Space Channel 5” used her likeness for the ‘Ulala’ character without her permission and that the name of the character is based on Keir’s own signature ‘Oh La La’. Keir alleges that Sega approached her for permission but still used her image even after she declined to grant a licence to Sega . See http://www.forbes.com/technology/newswire/2003/04/30/rtr957273.html

CATHERINE ZETA JONES AND MICHAEL DOUGLAS HAVE LIMITED SUCCESS AGAINST HELLO! UNDER THE LAW OF CONFIDENCE
Artists , Privacy / May 2003
UK

PRIVACY Artists In a 104 page High Court judgement, Mr Justice Lindsay ruled that Hello! magazine had breached commercial confidentiality by publishing photographs secretly taken of the Douglas/Zeta-Jones wedding, and that Hello! had breached the Press Complaint’s Commissions’ code of conduct – but that there had been no invasion of the couple’s privacy in law. The Judge held that the evidence that Hello! and OK had competed to win the right to cover the wedding was enough to demonstrate that commercial confidentiality should apply and that the couple were entitled to damages as a result of this. The judge commented that “I hold the Defendants to be liable…. under the law as to confidence. It will have been noted that an important step in my coming to that conclusion has been that, on balancing rights to confidence against freedom of express for the purpose of granting or withholding relief, I have been required by statute to pay, and have paid, regard to the Code of the Press Complaints Commission. The Hello! Defendants broke their own industry’s Code.” But Mr Justice Lindsay did not uphold the couple’s claim in privacy and indeed went some way to suggest the court would not…

SOLOISTS CAN PROVIDE VAT FREE SERVICES IN GERMANY
Artists , Live Events , Taxation / May 2003
Germany

TAXATION Live Concert Industry, Artists The ECJ (European Court of Justice) held on appeal that the meaning of ‘cultural bodies’ in the context of the supply of cultural services in the concert industry could extend to individual performers who would not need to charge VAT for their services. This case arose out of an appeal from the Federal Court of Justice in Germany (Bundesgerichtshof) by a German promoter against a criminal conviction for failing to account for VAT in respect of soloists engaged by him for a concert tour. The commercial nature of the activities did not preclude the services and their providers from being exempt from VAT in Germany. Reference: Criminal proceedings against Hoffman ECJ Case C-144/00

FORMER MANAGER SUES DRU HILL
Artists , Contract / April 2003
USA

CONTRACTS Management, Artists The R&B group Dru Hill have been served with a $30 million lawsuit from former manager, Kevin A. Peck, who claims the group owes him millions of dollars in management fees. The lawsuit, filed in Baltimore Circuit Court on March 20 2003, alleges unjust enrichment and is served against all of the original band members. Peck believes that his management contract entitled him to a percentage of the group’s income from all three of its albums, as well as the members’ solo releases. Dru Hill attempted to settle with Peck, but were unable to reach an agreement with him. Dru Hill achieved multiple platinum albums, several music awards and generated millions of dollars in publishing royalties and record sales, including ‘The Thong Song’ released by band member Sisqo in late 1999. See www.news8.com Meanwhile, former Guns N’ Roses songwriter and guitarist, Izzy Stradlin, has also filed a lawsuit in the Los Angeles Superior Court. He alleges that he mistakenly paid his management firm Big FD $231,575 in post-term commissions after the ‘old’ Guns N’ Roses broke up and that Big FD had no right to receive this, since according to the agreement he entered, the remainder of his…

STIFF PENALTIES HANDED DOWN TO UK MUSIC PIRATES
Artists , Copyright , Record Labels / April 2003
UK

COPYRIGHT Record Labels, Artists His Honour Judge Lowen, sitting in the Isleworth Crown Court on 12th March 2003, sentenced Yogesh Raizada to 3 years imprisonment and record fines of ,000 under a Confiscation Order. Raizada was charged and found guilty on eleven counts under the Trade Marks Act 1994 and a further two counts under the Video Recordings Act. The Court heard that Raizada had been subject to a number of raids carried out by the Police and Trading Standards Officer which resulted in the seizure of thousands of pirated music CDs, DVDs and video cassettes between 2000 and 2001. In a separate case, David Stanley was sentenced to 4 years and 5 months imprisonment at Maidstone Crown Court having been charged with conspiracy to defraud and attempting to pervert the course of justice. The Court heard that Stanley was ringleader of a gang which copied and sold illegal music product and computer software, primarily at computer fairs across the UK. At one fair in May 2001, CDs with a street value of ,000 were seized. Sentencing Stanley, His Honour Judge Croft said that “the loss to the industry was massive and incalcuable” and that Stanley had been in effect…

BERT WEEDON WINS LIBEL BATTLE WITH BBC
Artists , Defamation / March 2003
UK

DEFAMATION Artists Guitar legend Bert Weedon has won damages from the BBC over a false claim that he “learned to play the guitar whilst a convict.” His appearance in the libel case was a first time in court for the 82-year-old despite allegations to the contrary in the Daily Mail where a radio preview wrongly included Bert with musicians who had spent spells in prison. The Radio Choice review for Jailhouse Rock incorrectly stated that “even gentle guitar guru Bert Weedon” is among the many popular music figures who has spent time in prison. Mr Weedon said: “A friend phoned me up and said ‘have you read the radio review in the Daily Mail?’. “I have never been in prison. I am known in show business as “Mr Clean”. I have never taken drugs, I have never drunk heavily and I have never been involved in any scandal.” The Daily Mail said the report was based on a BBC press release and the broadcasting company apologised for the “distress and embarrassment” caused. Mr Weedon’s solicitor, Simon Smith said: “It may not always be fashionable in the rock music world but my client is rightly proud of his unblemished past and does not…

OWNER OF SAMPLED SONG WINS COURT INJUNCTION
USA

COPYRIGHT Record Labels, Music Publishing, Artists Indian composer Bappi Lahiri has won a court injunction halting the sale of Dr. Dre protéguth Hurts’ debut album and single based on claims that the hit song, “Addictive,” sampled more than four minutes of one of his compositions, without credit. A federal judge in Los Angeles ruled that “Addictive” must be removed from shelves unless the composer Bappi Lahiri’s name is added to the credits. Lahiri filed suit against Dre, his Aftermath Records label, and parent company Interscope/Universal Music Group, citing uncredited use of the Hindi song “Thoda Resham Lagta Hai,” composed by Lahiri for the 1987 Indian film “Jhoothi.” Lahiri is seeking compensatory damages in excess of $1 million as a result of the failure to give credit and the loss of his ability to properly promote his music in the United States. The figure represents a combination of the profits Lahiri’s attorneys said the sales of Truth Hurts’ music has reaped for Universal along with the losses suffered by their client. The album has sold in excess of 300,000 units. Universal had the choice of pulling all product from the shelves or affixing a sticker with Lahiri’s credit on copies of…

DOORS DRUMMER TAKES ACTION AGAINST NEW ‘DOORS’
Artists , Copyright , Trade Mark / March 2003
UK

TRADE MARK, COPYRIGHT Artists, Merchandising A reunion concert featuring two original members of the Doors has prompted a law suit from original drummer John Densmore in the Los Angeles Superior Court for breach of contract and unfair competition. Original keyboardist Ray Manzarek and guitarist Robby Krieger have teamed up with vocalist Ian Astbury (formerly of the Cult) and Stuart Copeland, drummer with the Police, to play a concert in Los Angeles. Densmore claims that the band’s name is owned as a partnership by the three living members and the late Jim Morrison’s wife, Pamela Courson and that each partner has a right of veto over use of the name. He claims that the ‘new’ Doors are misusing the band’s name and logo and will confuse the general public. Recent cases in the UK involving the use of original band names have included Sweet and Bucks Fizz. Seewww.news24.com/News24/Backpage COMMENT : This area of law has recently been explored in the UK by the High Court in the case of Byford -v- Oliver and Dawson (2003). This case involved the use of the name ‘Saxon’ by Biff Byford, the original singer with the British heavy metal band. Byford had been a band member since its formation in the late 1970s….

CATHERINE ZETA-JONES AND MICHAEL DOUGLAS BEGIN ACTION AGAINST HELLO!
Artists , Privacy / March 2003
UK

PRIVACY LAWS Artists The action brought by Michael Douglas and Catherine Zeta Jones reached the High Court in London. The couple and Northern & Shell, publishers of OK, have brought an action against Hello! claiming that their privacy was invaded when a photographer secretly took pictures of their New York wedding and provided these to Hello! who then published the shots. The couple had an exclusive agreement with OK to publish official photos. The UK has no real body of privacy law and recent cases by celebrities such as Naomi Campbell (against Mirror Group Newspapers) and footballer Gary Flitcroft (A -v- B & C [2002]) have done little to develop the right to privacy set out in the Human Rights Act 1998 with the Court of Appeal giving a very wide definition to what the ‘public interest’ might be. Mr Justice Lindsay must have further alarmed the couple by stating in court that in the UK weddings must, by their very nature, be ‘public’ events as part of the ceremony involves asking members of the public if they know of any just reason why a marriage ceremony should not take place.

US SUPREME COURT UPHOLDS COPYRIGHT EXTENSION
USA

COPYRIGHT  TV, Film, Artists and Composers, Record Labels, Music Publishing, Internet Eldred -v- Ashcroft (2003) In this case, the US Supreme Court finally confirmed the provisions of the US Copyright Extension Act 1998. This Act, known as the ‘Sonny Bono’ Act after the late recording artist and congressman, extends US copyright protection to life of author plus 70 years (up from 50 years) and 95 years (up from 75 years) for works owned by corporations. The Act, passed after lobbying from Walt Disney and other media corporations (worried about older works falling into the public domain) returns certain works to copyright and gives extended protection to other works. It could be argued it is the end of public domain as hundreds of thousands of works which would have become freely available are now protected by copyright laws. (John Naughton, The Networker, Observer Newspaper 19/01/03). See : www.observer.co.uk/business See : www.briefhistory.com/footnotes

NEW SOURCES OF INCOME FOR SONGWRITERS
Artists , Copyright , Music Publishing / January 2003
EU
USA

COPYRIGHT Music Publishing, Artists and Composers A recent study by the Informa Media Group shows that downloading mobile phone rings is a fast growing and lucrative business. Informa found that in 2002 songwriter’s collection societies collected in excess of £44 million for composers and publishers and that the global income from mobile tone rings was in excess of US$1 billion. See www.cnet.com for further information.

NEW COUNTRIES SIGN UP TO INTERNATIONAL TREATIES PROTECTING INTELLECUAL PROPERTY RIGHTS
EU
USA

COPYRIGHT Record Labels, Music Publishing, Artists and Composers The World Intellectual Property Organisation (WIPO) has announced that the total number of contracting states for the Berne Convention (which sets out and defines minimum standards of protection for economic and moral rights for authors of literary and artistic works) is now 149 nations and that the total number of contracting states to the Geneva Convention (protecting phonographic copyrights) has reached 69. Email: Publicinf@wipo.int for further information.