MELBOURNE VENUE OWNERS OBJECT TO RESIDENTIAL DEVELOPMENTS NEAR EXISTING CLUBS
Licensing , Live Events / July 2003
Australia

LICENSING Live concert Industry The live music industry in Melbourne, Australia is pushing for a change in the law to put an obligation on builders and owners of new apartments built near live music venues to soundproof new buildings against the existing levels of noise. Venue owners say that as house and apartment prices in the inner city have soared, home owners’ expectations have changed and that new, more affluent residents don’t want to be kept awake at night by live music. Their complaints about noise to local authorities and liquor-licensing bodies are increasingly being taken seriously. The owner of one live music venue objected to a three-storey apartment block being built in a warehouse shell behind his venue. The owner says one wall of the block will be just metres from venue’s back door and beer garden, and that plans show that windows from two bedrooms will be “directly adjacent” to the rear of the venue. The venue currently hosts live bands six nights a week, playing until 1am. The venue told the Victorian Civil and Administrative Tribunal that builders should incorporate soundproofing into the new development but on March 31, VCAT ruled that the development could proceed although…

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…

LEEDS FESTIVAL GRANTED LICENCE
Licensing , Live Events / July 2003
UK

LICENSING Live Event Industry The Carling Weekend Leeds Festival was successful in its applications for a public entertainment licence at both Temple Newsam and Bramham Park after strong objections from local residents at the Festival’s 2002 site, Temple Newsam. Last year’s Festival ended in riots and arson and local residents had described the Festival’s history as ‘4 years of hell’. But the Mean Fiddler Organisation has decided to go ahead with the Bramham Park site after the local authority recognised the cultural and economic benefits the festival brought to the local area. See: www.nme.com In a separate matter reported in the Stage (May 22, 2003) it was announced that the British Actors Equity Association (Equity), the trade union which represents artists and performers, had brought an emergency motion to its annual conference after insurers announced that they were no longer able to secure public liability cover for hypnotists. As all performers using hypnotism must have public liability insurance when applying for a licence from the relevant UK local authority the current situation inevitably means that no licences can be granted.

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…

VERIZON HAND OVER SUBSCRIBER DETAILS
USA

COPYRIGHT Record Labels, Music Publishers, Internet Having failed to persuade the appeals court of its case, US ISP Verizon has handed over the names of four of its customers to the Recording Industry Association of America (RIAA) – marking a significant victory for the RIAA and a shift in the way that the US courts deal with the conflict between copyright infringements on the internet and customer privacy on the internet. The decision will undoubtedly have an impact on net users around the world. The RIAA first contacted Verizon last year after finding files being shared through the Kazaa peer-to-peer network from computers with IP addresses on Verizon’s network. The RIAA had no way to find who the users behind those computers were, so used a provision of the Digital Millennium Copyright Act to issue a court-authorised subpoena to the ISP, asking for the subscriber names. Verizon refused, arguing that they were just a communications channel and had nothing to do with the potentially copyright-infringing behaviour of their customers. For comment in this area see: ‘Copyright holders like record labels have too much power over what people do with songs’ argues technology analyst Bill Thompson. See: http://news.bbc.co.uk/1/hi/technology/2968216.stm

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…