Music Linked Cigarette Sponsorship Challenged in Maryland, US
Artists , Business / August 2004

SPONSORSHIP Artists, Sponsorship, Merchandising The Attorney General of Maryland has filed a lawsuit against the maker of Kool cigarettes, charging that the company is illegally targeting young people with a marketing campaign built around hip-hop music.The suit announced by Attorney General J. Joseph Curran asked that the marketing campaign organisers, Brown & Williamson, be fined at least $5.3 million and prohibited from continuing with its Kool Mixx 2004 promotional campaign in Maryland. Brown & Williamson defended the campaign saying that it celebrated hip-hop music and the art form of the mixers, and the DJs, who mix music. Contests are held in bars where alcohol is sold and young people are not admitted. The suit was filed in the Baltimore Circuit Court. Maryland is the second state to file suit against the Kool Mixx campaign. The New York attorney general got a preliminary order last month from that state’s Supreme Court, halting use of the Web site and a live audio webcast of DJ contests along with the recall of special cigarette packs and brand merchandise. See : http://www.bradenton.com/mld/bradenton/business/9058942.htm

Copyright Subsists in an ‘Edition’ Version of a Work Even Where No Significant Changes are Made to the Melody

COPYRIGHT Record Labels, Music Publishers Hyperion Records plans to appeal against a High Court ruling that the company must pay copyright fees for use of a 300-year-old piece of music in one of its recordings. The decision could have serious repercussions throughout the world of classical music. The suit against Hyperion was brought by Dr Lionel Sawkins, a musicologist who spent a year preparing an edition of pieces by Michel-Richard de Lalande (1657-1726), court composer to Louis XIV and Louis XV. Sawkins claimed that, since his work had been used by Hyperion to make its CD “Music for the Sun King”, he was entitled to royalties on the recording. Hyperion pointed out that Dr Sawkins had received a hire fee for us for the use of his editions so was being paid. Under the Copyright Designs & Patents Act 1988 (as amended) copyright normally expires 70 years after the composer’s death, but Patten J ruled that Sawkins’s work had been significant enough for him to claim royalties: “I am not persuaded,” said Mr Justice Patten, “that one can reject a claim to copyright in a new music work simply because the editorial composer has made no significant changes to the notes.”…

German Clash Over Levy On Copying Devices

COPYRIGHT Record Labels, Music Publishers, Technology, Internet A long-running feud in Germany over imposing a levy on computers and printers has returned to the headlines after a government minister suggested extending the levy to all devices capable of duplicating copyright-protected material. In a weekend interview with the Süddeutsche newspaper, German Justice Minister Brigitte Zypries said the government may broaden its copyright law to include a levy on all devices capable of copying and not just copy machines, scanners and CD burners. Currently, Germany imposes a levy only on devices specifically designed for copying, according to Zypries; in the future, she said, all devices that can be used to copy copyright-protected material should be subject to a fee, with the amount determined by usage. Germany is one of several European countries that for decades has been collecting special copyright fees on the sale of analogue copying devices such as blank audio and video cassettes, and more recently, digital CD players. The fees are intended to compensate rights holders for lost royalties from private copying of music, images and movies: attempts by the German rights society, VG Wort, to extend the same levy to computers and printers have met strong resistance by…

Dutch Supreme Court Confirms Format Rights Decision: Castaway v Endemol
Copyright / August 2004

COPYRIGHT Television The titanic battle over ownership of the Big Brother format appears finally to have been resolved by the Dutch Supreme Court after a legal battle lasting well over three years. On 16 April the Supreme Court of the Hague rejected the appeal by Castaway Television Productions Ltd and Planet 24 Productions Ltd against the decision of the Dutch Court of Appeal which in turn confirmed the decision of the Dutch Court of first instance. The trial judge had ruled that the format of Big Brother is not an infringing copy of the Survivor format. The “Survive” format on which the action was based was the same format which Castaway sought to protect in the Celebrity action (see our early warning of August 2003). It was originally produced under the name Expedition Robinson in the summer of 1997 in Sweden, and then subsequently in other European countries. At around the same time Endemol Productions was developing a format, which eventually became Big Brother, that was broadcast in the autumn of 1999. Castaway Television asserted that the Survive format is a copyright work by virtue of its unique combination of 12 elements. It also claimed that Big Brother is an…

Beenie Man Show Cancelled Over Homophobic Lyrics
Health & Safety , Live Events / August 2004

HEALTH & SAFETY Live Event Industry A London concert by Jamaican dancehall star Beenie Man was cancelled after complaints it might provoke violence towards gay men. Police spoke to Beenie Man after a complaint that some of his songs contain “lyrics that are an incitement to homophobic murder and violence”. The performer, real name Anthony Davis, was due to appear at the Ocean club in Hackney in East London which cancelled the show on the grounds of concerns for public safety after talks with police officers. The performer was not arrested or spoken to under caution and it is reported that the police did not ask for the concert to be cancelled. Beenie Man was among Mobo-nominated performers included in a dossier presented to Scotland Yard’s Race and Violent Crime Taskforce by gay rights campaigners last September. Refunds have been offered to those with tickets for the show. See : http://news.bbc.co.uk/1/hi/england/london/3838975.stm

Princess Caroline Wins Historic Court Battle
Artists , Privacy / August 2004

PRIVACY Artists Princess Caroline of Monaco has won an appeal in the European Court of Human Rights in Strasbourg which overturns the German Constitutional Court’s decision that as a contemporary pubic figure she had to tolerate pictures taken of her in public. The ECHR held that the publication of pictures of her horse riding, skiing, with her husband and sitting in a café had violated the princess’ right to privacy, in breach of the European Convention on Human Rights (Article 8). “Every person, however well-known, must be able to enjoy a legitimate hope for the protection of… their private life,” the court said. “The court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life.” German law already gave some protection to celebrities; in 1998 a German court ordered Bunte magazine to pay the Princess £20,000 for violating her privacy by publishing snatched pictures of her when she was ill – taken by a Paparazzi trespassing on the Princess’s property. Germany has three months to file an appeal. See : http://news.bbc.co.uk/1/hi/world/europe/3838945.stm http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/06/25/wcaro25.xml&sSheet=/news/2004/06/25/ixnewstop.html http://www.dw-world.de/english/0,3367,1430_A_1026243_1_A,00.html ARTICLE By Jonathan Coad, Solicitor VON HANNOVER v GERMANY: WATERLOO FOR THE…

“Creative Commons” Adopted in the Netherlands

COPYRIGHT Record Labels, Music Publishers, Television, radio, Film, Internet The Netherlands has become the third European nation to adopt a ‘Creative Commons’ approach to copyright. This is a simpler way of handling copyrights on the Internet already adopted in Finland and Germany . The brainchild of Professor Lawrence Lessig from California’s Stanford University, and others, Creative Commons (CC) was originally launched as an American initiative 18 months ago. CC’s objective is to stimulate the distribution of electronic material, like literature, photographs, music, films and scientific works, over the Internet without breaching copyright laws, and creating, in the process, a large public domain – a ‘creative commons’ – for artists and scientists to share and work in. Unlike the present, ‘all rights reserved’ copyright system, CC adopts a simpler, ‘some rights reserved’ attitude. Its licences come in 12 flavours of varying application and coverage, stipulating exactly where (for non-commercial purposes, for example) and how (mentioning the information source is mandatory) a licensed work can be used. The Duch version of CC will conform to Dutch copyright law and allow owners to stipulate how and where free use can be made without affecting ownership. See : http://www.dmeurope.com/default.asp?ArticleID=2124

Artist Wins Right To Use Barbie Dolls
Artists , Copyright , Trade Mark / August 2004

COPYRIGHT & TRADEMARK Merchandising, Artists Artist Tom Forsythe from Utah has fought off an action by Mattel who attempted to prevent the artist from using Barbie Dolls in his work. Mr Forsythe photographed undressed dolls positioned with kitchen equipment to comment on the subservience of women. He argued that the dolls produced a gender oppressive value in girls. In 1999 Mattel launched an action against Forsythe claiming copyright and trade mark infringement arguing that the artist was using their brand to sell and/or promote products without Mattel’s permission. They demanded destruction of any photographs and negatives. Judge Ronald Lew in the Los Angeles Federal District Court threw out the claim as groundless awarding costs of $1.8 million against Mattel and warned Mattel against intimidatory tactics. See : The Times 29 June 2004

EFF Fears the Inducing Infringement of Copyright Act Will Stifle Innovative Technology

COPYRIGHT Record Labels, Music Publishers, Film, Television, Internet The Electronic Frontiers Foundation have pointed out that Senator Orrin Hatch’s new Inducing Infringement of Copyright Act (S.2560, Induce Act) would make it a crime to aid, abet, or induce copyright infringement. The EFF say that Senator Hatch “wants us all to think that the Induce Act is no big deal and that it only targets ‘the bad guys’ while leaving ‘the good guys’ alone. He says that it doesn’t change the law; it just clarifies it. He’s wrong.”. The EFF comment that under the Supreme Court’s ruling in Sony Corp. v. Universal City Studios, Inc. (the Betamax VCR case), devices like the iPod and CD burners are “100% legal” not because they aren’t sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these “substantial non-infringing uses.” The EFF have suggested that the Inducing Infringement of Copyright Act might “kill the iPod” and to dramatise how the Induce Act might harm technology innovators and consumers. The EFF have posted a mock complaint on their website which is a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to…

The Supreme Court of Canada Rules That All Internet Transmissions Into Canada Are Covered By Canadian Law

COPYRIGHT Internet, Music Publishers, Record Labels The Supreme Court of Canada today confirmed that internet transmissions into the country from outside are covered by domestic Canadian copyright law, regardless of the origin of the transmission. The ruling arises from a court case in Canada, in which the international and Canadian Recording Industry organisations, IFPI and CRIA, and other rights holders organisations sought to confirm that communications which travel across Canada’s border, and are received in the country, should be subject to Canadian copyright law. The intervention took place following an appeal by Canadian Internet companies against a tariff by the Society of Canadian Composers, Authors and Music Publishers (SOCAN), a performing rights society. The Supreme Court confirmed the industry’s understanding of the law, ensuring that rights holders are protected under the Canadian Copyright Act against unauthorised transmissions in Canada, regardless of where they originate. Source www.ifpi.org However, Canadian Supreme Court has also ruled that ISPs are not subject to royalty fees. Canada’s high court ruled that the creation of a cache copy by Internet providers is part of their business to provide access to users, who have an expectation of freedom and privacy , and should not mean the providers have…

US Court Rules That Internet Service Providers Are Not Liable For Passive Storage of Infringing
Copyright , Internet / August 2004

COPYRIGHT Internet The US Court of Appeals for the Fourth Circuit has ruled that an Internet Service Provider (ISP) does not copy material in direct contravention of the US Copyright Act when it passively stores material at the direction of its users. The plaintiffs were providers of commercial real estate information. Some of the plaintiffs’ copyright protected photographs appeared on web sites affiliated with the defendant ISP, Loopnet Inc, which operated a web site allowing subscribers, generally real estate brokers, to post real estate listings, including photos. Loopnet’s terms and conditions of use prohibited the posting of photographs “without authorisation”. Any subscriber posting a photograph was required to warrant that the subscriber had “all necessary rights and authorizations” from the copyright owner. When a submitted photograph was transferred to the defendant’s system for review, a Loopnet employee would then briefly examine the photo to ensure that it depicted commercial real estate and that there was no obvious evidence to suggest that copyright in the photo belonged to a third party. If the photo failed to meet either criteria, it would be deleted by the examining employee. The Court found that Loopnet’s conduct was not “copying” under the Act because Loopnet lacked the…

Scottish CD Pirate Jailed R v Reid (2004)

COPYRIGHT Record Labels, Music Publishers A man who boasted on TV he “could not care less” that his business was illegal has been jailed for five months for selling pirate CDs and computer games. Stephen Reid’s illicit trading deprived the music and computer industries of more than £1million in lost revenue. Glasgow Sheriff Court heard police and trading standards officers then swooped on the 51-year-old’s premises. Sheriff William Holligan told him he had shown “a flagrant breach of legislation” after he pleaded guilty to three infringements of copyright. The Sheriff added: “A custodial sentence is unavoidable for such offences.” Reid had previous convictions for selling counterfeit videos. His sale of counterfeit music, computer games and software was particularly targeted at students at nearby Glasgow University. In February, breakfast show GMTV carried out an investigation into piracy in which they visited Reid. The court was shown a foul-mouthed interview with him in which he threatened cameramen and reporter Lyn Faulds-Wood. Police and trading standards officers then carried out surveillance on Reid and made “test purchases” before raiding the premises and seizing 6349 CDs believed to contain pirate material. See : http://www.eveningtimes.co.uk/hi/news/5028130.html

UK Bootleg Pirate Jailed For Three and a Half Years R v Purseglove (2004)

COPYRIGHT Record Labels, Music Publishers, Performers A British judge has jailed music bootlegger for three and a half years. Mark Purseglove, 33, is estimated to be one of the biggest bootleggers in world, amassing a £6.6 (US$12.5) million fortune in 11 years of music piracy. Purseglove sold his bootlegs around Europe, in Japan and across the world via an international network of wholesale dealers. He had also used internet auction sites such as eBay, falsely advertising the discs as rare items, charging as much as US$240 per CD. He was arrested in June 2002 after protracted investigations by anti-piracy teams from IFPI and BPI, the bodies representing the international and UK recording industry. Purseglove has now lost all of his assets including two homes in Chelsea in London, a home in Brighton and his Aston Martin sports car (under the Proceeds of Crime legislation). He was jailed and ordered to forfeit all of his assets after being sentenced to three and a half years imprisonment on charges of Conspiracy to Defraud the UK recorded music industry. The confiscation order, amounting to £1.8 million (US$3. 4 million), is a British record for music piracy. Delivering the sentence, Judge Timothy Pontius made…

Hong Kong Court Jails Pirates For Six and a Half Years

COPYRIGHT Record Labels, Music Publishers A Hong Kong court has passed jail sentences of six and a half years on two former directors of a Hong Kong-based company found guilty of involvement in a massive disc piracy operation. Tsoi Chung-wang (also known as Tsoi Kei-lung and Tsoi Tung-kei), and his wife, Ng Yee-nei (also known as Ng Kam-fung and Ng Yuk-yan Lili), both former directors of the Hong Kong based company Golden Science Technology Limited, were charged by Hong Kong’s Independent Commission Against Corruption (ICAC) for counterfeiting HK$300 million worth of copyrighted optical discs. The pair were found guilty yesterday by the Court of First Instance in Hong Kong of one count of conspiracy to defraud. The charge stated that Tsoi and Ng had conspired with other persons to defraud copyright owners in relation to the illegal copying, manufacture and distribution of sound recordings, films, games, and computer software between June 1997 and April 1998. The discs were believed to be destined for the People’s Republic of China. The investigation into the activities of the Golden Science Technology companies followed what remains to this day the biggest-ever single anti-piracy seizure – 19 million discs in Hong Kong in 1998. The…

4,700 Pirated Compact Discs, Cassette Tapes, and DVDs Crushed in Jamaica
Copyright , Record Labels , Trade Mark / August 2004

TRADEMARK & COPYRIGHT Record Labels Jamaica has begun to clamp down on hard copy piracy in the country and the Jamaican Minister of Commerce, Science and Technology Phillip Paulwell and a small gathering of music industry personnel witnessed the symbolic destruction of the pirated. The Minister added “Beware, the law is going to get you, leave people’s intellectual property rights alone, go and do your own. I’m glad to be a part of this exercise as we publicly demonstrate that the country is serious about pirating of people’s creative work. The government is grateful,” he added, “to the Jamaica Intellectual Property Office – under my ministry – and also to the police for the role that they are now playing to prevent person’s works from being pirated.” The CDs, DVDs and cassettes, valued at $1.5 million, were seized by the Intellectual Property Division of the Organised Crime Investigation Division of the constabulary, which has been working with the Jamaica Intellectual Property Office (JIPO) to clamp down on breaches of the Copyright and Trademarks Act. More than 15 persons were prosecuted in connection with the seizures. JIPO said 22 people have been prosecuted for breaching the Copyright and Trademarks Act since…

Scottish Ticket Counterfeiter Spared Jail
Live Events , Trade Mark / August 2004

TRADEMARK Live Event Industry A Scottish judge has told a man that he undersold fake tickets for Celtic’s Uefa Cup game in Seville last year. Sentencing Alan Cloughley to community service, Sheriff Deirdre MacNeill QC said the forged tickets were of a convincingly high standard but she remarked that Cloughley, who sold each ticket for £5, could have got more than ten times that amount. The 23-year-old economics graduate was caught by police at his Glasgow home just days before the game. Glasgow Sheriff Court heard that Cloughley produced and sold hundreds of fake tickets for Celtic’s Uefa Cup Final clash with FC Porto. He appeared for sentence on Friday having earlier admitted two breaches of the Trade Marks Act. Sheriff MacNeill said it had been a “sophisticated and well planned operation” but the court heard that people who bought tickets from Cloughley were aware that they were fakes. Sheriff MacNeill said the seriousness of the offence warranted a prison sentence, but she was prepared to order him to do 260 hours of community service. Acting on a tip-off, police raided Cloughley’s home and seized 291 tickets and £300 in cash. He claimed he bought a legitimate ticket and copied…

Article: “Format Fortunes: Is there Legal Recognition for the Television Format Right?”
Articles / August 2004

Click here to download this article as a PDF file (.pdf) by Ben Challis (Music Industry Lawyer and Senior Lecturer in Law, Buckinghamshire Chilterns University College), and by Jonathan Coad (Specialist in Music and Media Law with the Simkins Partnership, London) High Wycombe and London, England, UK August, 2004  Most people who are involved in exploitation, global licensing and merchandising of television programmes know the value of a television format – whether it be Who Wants To Be a Millionaire?, Big Brother, Wheel of Fortune, Pop Idol, or Family Fortunes. Licensing formats – where the creator of a format licenses a broadcaster or production company in another territory with the right to produce a version of that format – is a massive global industry worth tens of millions of dollars. However, there is also a huge ‘copycat’ industry, with rival ‘versions’ of these formats being developed by other broadcasters and producers. The recent question troubling both the industry and the courts has been whether or not television formats enjoy any legal protection themselves, and whether copycats can be stopped.   IN UK law, the starting point when looking at the licence of format rights is the 1989 case of Green v Broadcasting Corporation of New Zealand where presenter Hughie Green lost a Privy Council decision when he…