Articles / April 2004

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

Maverick Records Launches Legal Action Against Warner Music
Artists , Contract , Record Labels / April 2004

CONTRACT LAW Record Labels, Artists Madonna’s Maverick Records label has filed a legal action against Warner Music Group and Time Warner Inc. for breach of contract accusing the record company and its former parent of mismanagement and improper accounting that cost the singer and her partners millions of dollars. The lawsuit, filed in Los Angeles Superior Court, is the latest chapter in a long-running dispute between Madonna and Warner over Maverick, a joint venture the singer and record company launched in 1992. In the suit, Beverly Hills, California based Maverick accuses Warner Music and the other defendants of “engaging in acts of self-dealing and profit-taking, falsely accounting for receipts and expenses of the partnership … and secretly attempting to seize partnership opportunities for their own benefit.” Maverick claims Warner violated the venture agreement by failing to pay for “guaranteed” services like radio promotion, marketing and sales meant to support Maverick artists. The suit also contends Warner obscured label profits by using “artificial and improper accounting methodology to create the false impression of losses.” Madonna and her partners own a combined 60 percent stake in Maverick, whose artist roster includes Alanis Morissette and Michelle Branch. Warner owns the remaining 40 percent…

First Finnish Claim Against Private File-Swapper

COPYRIGHT Internet, Record Labels, Music Publishing A Finnish court has ordered a 24-year old man to pay claimants, including Canadian rock star Alanis Morissette, 7,000.00 in damages for spreading unauthorised recordings of her concerts on the Internet. The judge found that between 1999 to 2003, the defendant swapped over 1,900 copies of unauthorised concert recordings (‘bootlegs’) for private use. Legal action in Europe has so far been limited to prosecuting people who have tried to make profit rather than those who swap for personal use and has been brought by record labels for use of sound recordings sold as CDs (rather than bootlegs). The Tampere District Court, some 170 kilometres north of Helsinki, ordered the defendant to pay the damages for copyright infringement to various artists and organisations. The Defendant was also fined the limited amount of 408.00 as a criminal penalty reflecting the fact that he had not engaged in the online bootleg swapping for profit and had not made the illegal recordings himself. On his website, the defendant posted lists of bootleg recordings he wanted and what he had to offer in return, as well as his detailed contact information. See :

Canada Follows RIAA Model Despite Legislative Hurdles

COPYRIGHT Internet, Record Labels, Music Publishing The Canadian Recording Industry Association (CRIA) has filed court requests that seek identifying information for subscribers at five Canadian Internet service providers. The information gained from those requests would be used to file copyright infringement lawsuits against people who had made large amounts of music available for upload, the group said. The Canadian record label group had previously warned that it was likely to follow its US counterpart’s legal example, but decisions by copyright authorities had clouded the file-swapping picture in Canada. In December, the Copyright Board of Canada, the country’s top copyright regulators issued a ruling in which they said downloading from file-swapping services such as Kazaa under Canadian law, since the songs were intended for non-commercial personal use (see Law Updates February 2004). However uploading, or sharing with others would not merit the same legal shield. At the time, CRIA lawyers said they disagreed with the regulators’ decision, which came in the context of a ruling on what level of fees to place on blank recording media. Like the Recording Industry Association of America, the CRIA will only be seeking judgements against the most “egregious” examples of piracy. The US lawsuits have…

Shanghai Karaoke Bars Face The Music
Hong Kong

COPYRIGHT Record Labels, Live Event Industry The Shanghai Daily News reports that local karaoke bars are paying close attention to a court case that could force many clubs to close their doors in the near future. The Shanghai No. 1 Intermediate People’s Court has begun hearing Sony Music Entertainment ( Hong Kong) Ltd’s lawsuit against Cashbox Karaoke Bar for screening musical video discs without permission. Sony Music is seeking 350,000 yuan (US$42,169) in compensation and a public apology. It is also asking Cashbox to be banned from screening the discs in public. Sony Music said it discovered on March 7 2003 that the outlet of Cashbox Karaoke Bar in Fuxing Park was screening videos of Hong Kong pop star Leon Lai. Few, if any, local karaoke bars pay royalties to foreign music companies to screen their video disks, meaning a ruling against Cashbox could devastate the local industry. Sony wants local bars to pay the same royalties karaoke clubs pay in Hong Kong, which is between HK$50,000 and HK$500,000 per song for unlimited use. Cashbox argued that it pays licensing fees every year to the Music Copyright of China, an association that acts on behalf of composers and writers. Last…

Australian Federal Court Allows the Use of Anton Piller Orders in Record Company Raids

COPYRIGHT Record Labels, Music Publishers, Internet The record industry in Australia has retained the right to use Anton Piller court orders to seize evidence in cases of alleged illegal file swapping and piracy. Sharman Networks, the owner and distributor of the Kazaa file-sharing application, is considering appealing the Federal Court’s decision (04/03/04) which upheld a ruling allowing the record industry to conduct raids on its premises last month. Justice Murray Wilcox upheld the validity of use of Anton Piller orders by which a court empowers a party, that has alleged wrongdoing, the opportunity to enter premises and search for evidence. In his ruling, Justice Wilcox acknowledged that Sharman has complied with legal proceedings in the past and that the company would conduct itself in the same manner in Australia. COMMENT: In accepting that Sharman had complied with court directions and orders in the past, Justice Wilcox went some way further than the classic test when allowing the Anton Piller order to be used. In Anton Piller KG v Manufacturing Processes (1975) Ormrod J held that the claimant must be able to show (a) a strong prima-facie case and, (b) very serious actual or potential damage and (c) that there must be…

Japanese Orchestras Refuse To Pay Increased Live Performance Fees
Copyright , Music Publishing / April 2004

COPYRIGHT Music Publishing The Association of Japanese Symphony Orchestras has refused to pay musical royalties to the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) after the copyright protection body raised fees for music performed during concerts. The intentional failure by a musical organisation to pay musical copyright fees set by JASRAC is rare and is likely to spark a debate on the use of musical copyrights. According to JASRAC, music royalties in Japan have been below international standards. The institution said it had received complaints from rock groups including U2 and the Rolling Stones, that the fees for performing their music in Japan were insufficient. JASRAC began discussing royalty issues with concerned organisations in 1999 in an attempt to bring its royalties in line with international standards. In October 2003, JASRAC implemented its new provisions, including one that stipulates a new royalty system. Under the new system, royalties are decided in accordance with admission charges and the seating capacity of the venue. The fee was previously fixed regardless of the size of the venue. The new system has contributed to lowering copyright fees for music performed at small venues. However, the system has increased financial burdens on…

European Parliament Passes Tough New IP Enforcement Directive

COPYRIGHT Film, Television, Internet, Record Labels, Music Publishing The European Parliament has passed a controversial Directive on intellectual property rights enforcement that give rights-holders ‘incredibly powerful tools’ in the fight against intellectual property infringers. The Electronic Frontiers Foundation commented that whilst this might sound like a good idea at first, a closer look reveals that the directive doesn’t distinguish between unintentional, non-commercial infringers and for-profit, criminal counterfeiting organisations. If this directive is adopted, a person who unwittingly infringes copyright – even if it has no effect on the market – could potentially have her assets seized, bank accounts frozen and home invaded. The EFF had encouraged its European supporters to write to their Members of the European Parliament (MEPs) to urge them to limit these harsh enforcement measures to cases in which infringement is undertaken intentionally and for commercial purposes and MEPs finally softened and the vote on Intellectual Property Rights Enforcement Directive took place in the European Parliament on 9 March and the directive was passed by 330 votes to 151. The law was drawn up to target professional pirates, criminals and counterfeiters who make copies of goods such as football shirts or CDs. During the debates, the directive…

US Court Endorses Ban on DVD Copy Technology
Copyright / April 2004

COPYRIGHT Technology Whilst the MGM Studios v Grokster appeal is still being heard, the Electronic Frontiers Foundation suggested that consumers had suffered a setback to their digital rights when, on the application of a coalition of Hollywood movie studios, the District Court for the Northern District of California issued an injunction prohibiting 321 Studios (321) from selling versions of its DVD duplication software. The Court found that 321’s “DVD Copy Plus” and “DVD X Copy” violated 1(a)(2) and 2(b)(1) of the Digital Millennium Copyright Act (DMCA), given that each of the above programs was primarily designed, produced, and marketed to the public to circumvent embedded DVD copy protection. Both programs came equipped with an unlicensed de-scrambling component to allow users to decrypt the CSS (Contents Scrambling System) encoding and make a copy of the decrypted DVD. In making its findings, the Court ruled that the DMCA does not infringe fair use or constitutional rights of users and does not otherwise exceed the scope of Congressional powers the court ordered 321 Studios, creator of DVD backup tools, to stop selling its DVD Copy Plus and DVD-X COPY products within seven days. 321 Studios plans to appeal the ruling. “In passing the…

Harrods v Dow Jones (2004)
Artists , Defamation , Internet / April 2004

DEFAMATION Internet, Artists, Television Despite winning a High Court battle for the right to bring an action against Dow Jones to bring a lawsuit against Dow Jones in the United Kingdom, Harrods have lost their libel action against Dow Jones & Company Inc for Defamation. Dow Jones had compared Harrods to disgraced US energy giant Enron, but in the initial High Court action it was revealed that the publisher had only ten subscribers in the UK. Harrods now face estimated costs of ,000 after a jury found that the damage to the store was virtually non-existent and the article did not injure Harrod’s reputation. See Law Updates July 2003

Campbell v Mirror Group Newspapers Reaches the House of Lords
Artists , Privacy / April 2004

PRIVACY Artists, Broadcasting Model Naomi Campbell brought her action against MGM after the Daily Mirror revealed that she had been attending Narcotics Anonymous. Her claim included actions under the right to privacy afforded by Article 8 of the Human Rights Act 1998, the law of confidence and under the Data Protection Act 1998. The data in question, that of her addiction, was deemed to be sensitive as it related to her physical and mental wellbeing and was therefore within the DPA. Campbell claimed compensation under Section 13 for unauthorised publication including resulting distress (13[2]). Campbell won limited damages at first instance in the High Court. However, as it became clear that Campbell had lied about her addiction on previous occasions the Court of Appeal ruled that MGM had a valid defence under S32 where publication is justified within the public interest with regards to the Data Protection Act. The case has now reached the House of Lords where it is being argued that whilst The Mirror was entitled to publish the fact that Campbell was an addict, details of non-medical treatment and a photograph of her leaving Narcotics Anonymous were a breach of confidence and an invasion of privacy.

007 Brand protected in Canada
Trade Mark / April 2004

TRADE MARK Television, Broadcasting, Merchandising Danjaq Inc. v Spiridon Zervas & Dimitr Zervas in Partnership trading as 007(2004) The applicants Zervass had sought to register the marks 007 and 007 PIZZA & SUBS and Design for its restaurant business in Canada. The application was opposed by Danjaq as owner of the trade-marks JAMES BOND 007 and GUN Design based on the novels by Ian Fleming. Danjaq argued that the applicant was not entitled to registration on two grounds: firstly, because the trade-mark 007 had been previously used and made known in Canada and, secondly, that the applicant’s marks were not distinctive. The Registrar of Trade Marks rejected the opposition on the basis of the wide disparity in the wares, services and businesses of the two parties. The opponent appealed to the Federal Court of Canada. On appeal, the Court considered new evidence filed by the opponent regarding the widespread distribution of films featuring the JAMES BOND character which are and were available through television broadcasts and video rentals and the publicity generated by the print media. In reviewing the evidence, the Court had little difficulty in concluding that the opponent’s marks were used and made known in Canada prior to…

New Regulations for Door Supervisors and Security Staff Introduced in the UK
Health & Safety , Live Events / April 2004

HEALTH & SAFETY Live Concert Industry The Private Security Industry (Licences) Regulations 2004 In a move to take the image of door staff away from ‘bouncers’ and into the new millennium the UK Government have introduced The Private Security Industry (Licences) Regulations 2004 which are effective from the 01 March 2004. These Regulations make provision in relation to applications to the Security Industry Authority (SIA) for the grant of licences under the Private Security Industry Act 2001 to engage in the activity of door supervision for public houses, clubs and comparable venues. The new Regulations prescribe the application form to be used for such applications and prescribe the forms of licence to be issued for that activity. A distinction is made between licences for people who carry out that activity themselves and licences for those who act as manager, supervisor, employer or director etc of people who carry out that activity. An obligation is placed on door staff to wear the appropriate identifying licence at all times when working, to notify the SIA of any conviction or caution and to produce the licence on demand to the SIA or the police. Appeals from SIA decisions, alongside appeals from Local Authority…

Owners of ‘Lord of the Rings’ copyrights and trademarks take action
Copyright , Trade Mark / April 2004

COPYRIGHT AND TRADEMARK Film, Television The Saul Zaentz Company dba Tolkien Enterprises, Inc. and New Line Cinema Corporation, Plaintiffs v Kultur International Films, Defendants The companies that own the rights to the J.R.R. Tolkien “Lord of the Rings” books and related movies and merchandise have sued a New Jersey company for publishing a four-volume DVD set about the books. The suit filed by the Saul Zaentz Company, which has owned the trademarks and intellectual property rights since 1976, and New Line Cinema, allege that Kultur International Films has infringed on the Tolkien trademarks and copyrights by importing, making and selling the set “Inside Tolkien’s The Lord of the Rings”. Each of the defendant’s four DVDs focuses on an individual volume of the Tolkien books, the suit said. The defendants have created a ‘mapped’ Middle Earth where the Lord of The Rings fantasy is set and have included new original artwork and illustrations. Bonus features include an interview with the DVD illustrators and new music inspired by The Lord of the Rings performed by folk group Mostly Autumn. The plaintiffs seek to stop the defendants’ alleged infringement and dilution of the Tolkien rights. They also seek damages, costs, legal fees and…

Tom Waits Wins His Action For Unauthorised Use of His Work in a Spanish Advert and Eminen Brings a Similar Claim in the United States

COPYRIGHT Record Labels, Music Publishers, Artists Tom Waits has won the opening stages of a legal battle against a Spanish production company that adapted his music and impersonated his voice for a television commercial, despite Waits’ refusal to allow his original version of the song, Innocent When You Dream, to be used for the advertisement. The court in Barcelona has ordered the company, Tandem Campany Guasch, to pay compensation to Waits’ publisher in Spain, Hans Kusters Music, for violation of copyright. The commercial, for Audi cars, was screened in Spain in 2000. As well as having the same structure as Innocent When You Dream, the commercial’s music was also performed in a Tom Waits’ style. The court judgement thus recognises there has been a violation of Waits’ moral rights in addition to the infringement of copyright. Waits first heard of the infringement from fans, many who believed it was Waits singing his own song. Waits has succeeded in a number of actions worldwide to prevent his music and image from being associated with commercial products. See : In a separate matter, Eminem is suing Apple Computers after the company used part of his song, Lose Yourself, in a TV commercial…