Articles / January 2004

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

The Record Industry Suffers Major Setbacks In Three Separate Decisions

COPYRIGHT Record Labels, Music Publishers, Internet The record and music publishing industries have been jolted by three separate decisions from Canada, The Netherlands and the United States of America, all of which create problems in applying copyright law to the personal use of downloaded music files, and P2P file swapping. Firstly, the Canadian Copyright Board has ruled that the personal dowloading of files from the Internet is not illegal in Canada (although the provision of such a service would remain so). Whilst an unusual decision, Canada does have a system of blank tape, software and hardware levies which consumers pay, and alongside this also has an exemption for the personal use of music (contained in the Canadian Copyright Act). In a separate matter, in a case brought by Canadian collection society SOCAN, the Canadian music and telecommunications industries are also awaiting the appeals court’s decision in the Tariff 22 case regarding the liability of telecom and Internet service providers for music downloading. The Canadian ruling was followed by two separate decisions where courts also ruled against industry bodies. In Amsterdam, the Netherlands Supreme Court rejected a case against Kazaa, the popular file-sharing program – ruling that the company cannot be held liable for the swapping…

ECJ: A Sound Can Be a Trademark

TRADEMARK Record Labels, Music Publishers, Internet, Film, Television, Merchandising Shield Mark BV -v- Kist (t/a Memex) C-283/01 This case arose from a referral from the Dutch courts (Hoge Raad der Nederlanden). The Claimant, Shield Mark BV, had registered a melody consisting of nine notes from Beethoven’s Fur Elise and the sound of a cock crowing (as‘kukelekuuuuu’) as sound marks in the Netherlands. Shield used the nine note sequence in advertising and used the cockerel crow as an opening sequence when software it distributed was opened. Shield became aware that the defendant was using the same nine note sequence in an advertising campaign and also used a cockerel’s crow when software he distributed was opened. The question was raised whether sounds or noises could be trademarks within the meaning of Article 2 of EC Directive 89/104/EEC. Article 2 provides that a trademark can consist of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings. The European Court held that the list of examples in Article 2 was non-exhaustive, so sounds were not excluded as…

Battle Royal in the High Court
Artists , Defamation , Privacy / January 2004

PRIVACY, CONFIDENCE, DEFAMATION Artists On Friday 21 November, Mr Justice Lewinson imposed an interim injunction of the Daily Mirror preventing the newspaper revealing any more details about the Royal Family’s lifestyle and the royal household which had been collected by undercover reporter Ryan Parry. Amongst details reported were the Queen’s TV viewing habits (Eastenders is a favourite), her regular dining menus, her reading habits (Racing Post is laid out first every day) and drinking habits (gin and Dubonnet). Mr Parry was taken on after almost no security checks and given responsibilities which took him into direct contact with the Royal Family. The Mirror argued that it had acted at all times in the public interest and had exposed a very serious security breach involving the Queen and the Royal Family. However, it was clear that Mr Parry had signed an employee agreement which contained a confidentiality agreement. This would almost always override any right to a freedom of expression (article 10) contained in the Human Rights Act. The Royal Family argued that the publications in the Mirror were the plainest possible breach of confidence and the plainest possible intrusion into personal privacy. The full hearing for the action began on Monday November…

Paparazzi Cleared of Breaching French Privacy Laws
Artists , Privacy / January 2004

PRIVACY Artists Members of the paparazzi who took pictures of Diana, Princess of Wales and her companion Dodi Fayad before and after the fatal crash in Paris in 1997 have been acquitted of breaching French privacy laws. Whilst precedent had held that the inside of a car could be a private place under France’s strict privacy laws, the court held that the crashed vehicle on a public road was a public place and that the Princess and Mr Fayed had known they would be photographed when leaving the Ritz Hotel before the car crash and therefore had submitted to the invasion of privacy. If they had been found guilty, the photographers could have faced imprisonment of up to one year and fines.

UK Media Warned Over Soham Trial Coverage
Internet , Media / January 2004

MEDIA LAW Television, Radio, Internet, Newspapers In a speech to journalists and editors, the Attorney General, Lord Goldsmith QC, set out a series of guidelines for the press after he stated that the coverage of the Soham murder trial was ‘unacceptable’. He reminded journalists at the Law for Journalists Conference that reports which asserted or assumed that the defendant was guilty were not acceptable. He also warned that stories which might prejudice the police’s investigation and stories which prejudiced the defendant’s right to a fair trial were also not acceptable. However, on the same day, the Home Secretary, David Blunkett, said of Sajid Badat, arrested for possible terrorism charges, “This individual posed a very real threat to life and liberty of our country … this person has connections with the network of Al-Qaeda groups”. COMMENT : It is difficult to see how the Home Secretary’s comments are anything but prejudicial to the defendant and his right to a fair trial in the United Kingdom. Whilst it is coincidental that the Attorney General’s guidance were on the same day as the Home Secretary’s comments (The Times, 29 November 2003) there has always been the presumption of innocence until proven guilty in the UK. The Human…

File Sharing Illegal in Taiwan

COPYRIGHT Record Labels, Music Publishers, Internet A 22 year old Taiwanese man (Mr Chung) who shared music files over the Internet without the permission of record labels was forced to make an apology and agree to ‘cease and desist’ from file sharing in a settlement hailed by the music industry yesterday as a landmark in the fight against online piracy. “This case proves that peer-to-peer file-sharing infringes copyright,” International Federation of the Phonographic Industry (IFPI) Taiwan branch secretary-general Robin Lee told the Taipei Times in an interview. As in other territories, the music industry in Taiwan claims that peer-to-peer web sites break the law as they allow subscribers to download music via the Internet without paying royalty fees to the rights holder. But so far only ‘proactive’ file swapping sites such as the ‘old’ Napster have been effectively shut down. There is continuing litigation worldwide against sites such as KazaA and Grokster with mixed results so far (see Taiwan has now followed the approach adopted by the RIAA in the USA and has brought an action against an individual. “We will use this case to let everybody know that users of peer-to-peer web sites are breaking the law, and we will bring…

IFPI Voices Disappointment Over Postponement of Amendments to the Russian Copyright Law

COPYRIGHT Record Labels, Music Publishers The international record industry has expressed its strong disappointment at the Russian Parliament’s decision to postpone adoption of the already long-delayed, critical amendments to the Copyright Law. IFPI Chairman and CEO Jay Berman said: “We are deeply disappointed at the postponement of these amendments which, while not completely comprehensive, are a crucial first step towards bringing Russia into line with international standards of copyright protection. This delay sends worrying signals over Russia’s publicly voiced commitment to tackle its very serious shortcomings in copyright protection and enforcement. Copyright piracy is now at unprecedented levels in the Russian Federation, with far-reaching consequences to its culture, economy and levels of foreign investment.” For a number of years, the industry has been calling on Russia to urgently adopt changes to its Copyright Law to make it compatible with the requirements of the international treaties it wishes to join or those previously signed, in particular the 1996 WIPO Treaties. The long-awaited amendments were aimed at bringing Russia in line with international standards by tackling three crucial reforms to the country’s copyright system: adapting rights to face technological changes brought about by the growth of the Russian internet market; safeguarding international…

England Rugby Star Considers Protecting His ‘Kicking’ Ritual
Artists , Image Rights , Trade Mark / January 2004

TRADE MARK, IMAGE RIGHTS Artists Jonny Wilkinson, hero of England’s triumph in the 2004 Rugby World Cup, is considering using trade mark law or patent law to protect his distinctive ‘cradle’ ritual which he uses to focus his mind before taking penalty or conversion kicks in the game. The Scottish football team, Celtic FC, has succeeded in registering still images (a graphic representation) of their distinctive pre-match on field ‘huddles’ as a trademark, and a number of sports stars have had their photographic images registered as trademarks. But registration of the actual movement sequence itself would be a new departure in UK trademark law. Movement marks themselves are not unknown and a number of companies have registered moving images but these have been in a graphic form (for example, a rotating company logo). At the most basic level, for trade mark registration to succeed the ‘movement mark’ would have to be capable of being represented graphically and of distinguishing the goods of one person from that of another. However, it is possible that a complicated and original sequence of moves could have protection in copyright law just as a choreographed sequence of steps would be – as a dramatic copyright. Alternatively, it…

World Piracy News

COPYRIGHT Record Labels, Music Publishers, Internet, Computer Software Malaysian software pirates are selling copies of the next generation of Microsoft’s flagship Windows operating system, years before its official release and at a fraction of the expected price. Compact discs with a version of the system code-named Longhorn are being sold openly for less than $A 3.50 (£2.00) per copy . Malaysia is one of the worst offenders, with CDs, CD-ROMs and DVDs sold openly in stores and street stalls. Longhorn is still in development and won’t officially be ready until 2005 at the earliest. A Japanese peer-to-peer file-sharing network which claimed to keep user identities untraceable has failed to work and two users in Japan have been arrested. The developer of the P2P software has also had his home searched by police. There are around 250,000 users of the supposedly anonymous file-trading network, called Winny, which rides on the more well-known Freenet network. Freenet is an open-source project and is part of a growing number of projects aimed at giving people the ability to communicate online without being tapped, traced or monitored. There is some evidence from the USA that the controversial RIAA lawsuits against ordinary computer users are making…

Indictments Issued in Great White Tragedy
Health & Safety , Live Events / January 2004

HEALTH & SAFETY Live Concert Industry After a ten month investigation into the Rhode Island tragedy on 20 February 2003 at the Station Nightclub when pyrotechnics ignited during a performance by Great White caused an inferno, the Grand Jury has now issued criminal indictments. The fire killed 100 people, including Great White guitarist Ty Longley, and injured about 200 others. In the first indictments, former Great White tour manager Dan Biechele, and club owners Michael and Jeffrey Derderian were each charged with 100 counts of involuntary manslaughter with criminal negligence and 100 counts of involuntary manslaughter in violation of a misdemeanor. They were arraigned in Kent County Superior Court; all three pleaded not guilty. Bail for the Derderians was set at $50,000, and $100,000 for Biechele, who lives in Florida; all were expected to make bail by the end of the day. At the same time it is estimated that over US$1 billion of civil lawsuits have been filed. See: and Law Updates February 2003 and March 2003.

Beneficial Ownership of Intellectual Property Rights
Artists , Record Labels , Trade Mark / January 2004

TRADE MARK Record Labels, Artists, Merchandisers R Griggs Group Ltd & Others -v- Ross Evans (1) Raben Footwear Pty (2) & Others (2003)  The claimants manufacture and sell the well known Dr Marten boots and footwear. Dr Marten is a registered trade mark and used by the claimant under licence. The boots also carry the Air Ware logo, a trade mark owned by the claimant. In 1988 a combined logo incorporating both logos was produced and thereafter used on footware produced by the claimant. The first defendant was a freelance graphic designer retained by the second defendant. He designed the combined logo. The second defendant (and the other two defendants) took an assignment of copyright in the combined logo from the first defendant. The claimant sought a declaration that it was the beneficial owner of the copyright in the combined logo. Peter Preston QC held that (1) when a freelance designer was commissioned to create a logo for a client it would normally be necessary, in order to give business efficacy to the contract, to imply a term assigning the copyright beneficially to the client in order that the client could prevent others using the logo (Robin Ray -v- Classic FM plc [1998]) and (2) The…