New .EU domain names to be available in 2005
Trade Mark / December 2004

TRADEMARK All Areas The new .eu top level domain names are to be phased into use in 2005 following an agreement reached between the European Commission and EURid, the registry responsible for the new .eu domain name. The first period of registration, the ‘sunrise period’, will allow those with registered trademarks , names of public bodies and territories governed by such bodies the right to apply for the .eu suffix. The application for the domain name must exactly match the name registered or for that which priority registration is claimed and evidence supporting the registration must be provided within 14 days of application. This phase will last for two months probably starting in April or May 2005. After the sunrise period the .eu domain will ‘go live’ and be freely available on a first come first serve basis. Certain names will not be registerable by EURid (eg geographical names and those which are clearly defamatory). Evidence may be adduced to support a registration (such as the name of a company registered with Companies House) but where an application is based on an unregistered right or mark then the onus will be on the applicant to produce evidence supporting the application…

BPI and IFPI take action against Jetgroove.com
Copyright , Internet , Record Labels / December 2004

COPYRIGHT Record Labels, Internet An international anti-piracy action by the BPI and IFPI has led to the removal of over 50,000 tracks and albums being offered for sale at the website jetgroove.com. Jetgroove claimed that they would pay royalties to the copyright owners based on the material that was actually downloaded, but the website prompted numerous complaints from IFPI and BPI members on the grounds that these tracks were being made available without permission. The content providers were based in Moscow and the Domain Name Server & streams were hosted on US servers. IFPI sent a strongly worded cease and desist notice to the content providers requesting the immediate removal of the infringing material. BPI Director of Anti-Piracy David Martin said: “Whether it’s individuals illegally uploading files to peer-to-peer networks or companies seeking to make money out of our members’ copyrights without permission, the BPI’s anti-piracy unit is here to protect our members’ rights”. Although none of the current remaining tracks and albums are believed to be infringing members’ copyrights, the BPI and IFPI will continue to monitor the site. Any BPI members who have content on the site should contact antipiracy@bpi.co.uk with the full details of the tracks concerned….

Reggae Star refused entry to UK
Health & Safety , Live Events / December 2004

HEALTH & SAFETY Live Concert Industry Jamaican reggae star Sizzla Kalomji has been refused entry to the UK. Sizzla’s lyrics which are allegedly homophobic are under investigation by the police. The singer has also allegedly supported the burning of homosexuals and murder of all white people. He was banned form the UK by Home Secretary David Blunkett. Source : The Times, 5 November 2004

Rap label bookkeeper faces money laundering charges in the US
Criminal Law / December 2004

CRIMINAL LAW All Areas A bookkeeper for the hip-hop label Murder Inc has been arrested on charges of laundering drug money and hiding some of the label’s earnings from the Internal Revenue Service, according to an indictment in Federal District Court in Brooklyn. Cynthia Brent, pleaded not guilty and was released on bail. The indictment comes almost two years after federal agents raided Murder Inc.’s New York offices as part of an investigation into ties between its founder, Irv Gotti, and a Queens’ drug dealer, Kenneth McGriff. Investigators are trying to determine whether Mr. McGriff, currently serving a prison sentence, used his drug profits to help Mr. Gotti start Murder Inc. According to the indictment, Ms. Brent conducted financial transactions that involved money she knew to have come from drugs. She is charged with two counts of money laundering. The indictment also states that in the fiscal year beginning in October 2000, Ms. Brent divided large amounts into small deposits of less than $10,000 to avoid reporting rules. The small deposits added up to more than $100,000, the indictment states. See : http://www.nytimes.com/2004/11/09/nyregion/09rap.html?oref=login

Tennis Star’s Court of Appeal hearing will have important ramifications for the international live tour business
Taxation / December 2004

TAXATION All Areas Andre Agassi has launched an appeal against the Inland Revenue in the United Kingdom in a case which will have implications across the sporting and entertainments worlds. The tennis star is fighting an Inland Revenue decision to allocate a taxable charge against some of his sponsorship income even though he is a foriegn national and the monies were paid to him outside of the UK by a non resident sponsor. The Inland Revenue deemed that some of the income from the sponsorship must be attributable to tournaments and public appearances made in the United Kingdom. The High Court (Mr Justice Lightman) has already rejected his challenge against the assessment of a tax payable of 250 (E40,000 approx) in respect of payments from Nike and Head even though neither company had a tax presence in the UK. The High Court ruled that the payments, made in the 1998/99 tax year, fell within the provisions of the Income and Corporation Taxes Act 1988 and supported the Inland Revenue assessment on the basis that at least part of the payment was derived from time Agassi spent at tournaments in the UK including the Wimbledon grand slam event. The Court of Appeal…

New Pension Law Revisions in Italy Challenged by Ballet Stars
Artists , Taxation / December 2004

TAXATION Artists Italian ballet stars have threatened to strike if proposed reforms to pension laws mean they have to keep working until normal retirement age. Italian dancers escaped reforms eight years ago when new pension laws designed to harmonise retirement ages excused ballet dancers allowing retirement at age 45 for women and 52 for men. The new rules would mean ballet dancers would not be eligible for pensions until at least 60 years of age post 2008. Deputies in the Italian parliament are lobbying the Parliamentary Budget Commission for amended legislation allowing ballet dancers to retire between the ages of 47 and 49. The new legislation covers dancers employed by Italy’s opera and ballet companies including dancers at La Scala and the Rome Opera House. Source: The Times 5th November 2004

Hollywood film studios to sue individuals who swap pirated copies of films over the Internet
Copyright , Internet , Record Labels / December 2004

COPYRIGHT Film Industry, Record Labels, Internet The Motion Picture Association of America (MPAA) has said that it will follow the example set by the record industry and file the civil suits against individuals who upload/download films and swap these over the internet and would seek damages of up to $30,000 (300) per film. Dan Glickman, head of the MPAA, said the lawsuits were necessary before high-speed internet access made downloading pirated films easier. The MPAA have said it will file hundreds of lawsuits commencing November 16 commenting that “Illegal movie trafficking represents the greatest threat to the economic basis of movie-making in its 110-year history.” The crackdown will target individuals who deal in illegally copied cinema products on file-swapping networks, as well as the pirates themselves. Glickman added: “People who have been stealing our movies believe they are anonymous on the internet, and wouldn’t be held responsible for their actions. “They are wrong. We know who they are, and we will go after them, as these suits will prove.” The MPAA claims the US film industry loses more than $3bn every year in potential global revenue because of piracy. But Glickman said the figure did not take into account the…

Pensioners unlicensed tea dance attracts the attention of the PPL

COPYRIGHT Record Labels, Music Publishers Dancers at an over-60’s tea dance club are calling to be let off from paying fees for copyright use. Members of the High Wycombe club face having no music if they do not pay the a-year charge to the Performing Rights Society and Phonographic Performance Limited. The club, who meet once a fortnight at the Reggie Groves Centre in High Wycombe are appealing to the societies to waive the fee. The members enjoy two hours of dance to the music provided by 87-year-old Charlie Bristow from his personal CD collection. Mr Bristow, who has won national dancing awards, said dancing was good healthy exercise for older people. Charlie has been running the club for 16 years, playing organ and dance band music from people such as Victor Sylvester and Joe Loss. “None of that modern rubbish”, he says. Mr Bristow went to Wycombe District Council to complain about the extra costs and to see if the council could help with cash But the council could not offer much help saying that it was the PPL calculated how much people had to pay, not the council. The club was let off paying last year but would…

Puretunes operation ends in $10 million victory for the Recording Industry Association of America
Copyright , Internet , Record Labels / December 2004

COPYRIGHT Record Labels, Internet The Recording Industry Association of America has won an important battle against the four men behind Puretunes who attempted to take advantage of what they perceived as a loophole in Spanish law to allow them to sell MP3s online legally.The four individual defendants have, along with the company that owned the site they ran, agreed to pay music labels $10.5 million to settle the copyright infringement case brought against them by the Recording Industry Association of America. The RIAA sued Wayne Rosso, Daniel Rung, Michael Rung, Matthew Rung and Sakfield Holding Company SA in July 2003, alleging copyright infringement and that the defendants had defrauded customers into believing the music downloading site, Puretunes.com, had secured licenses from RIAA members even though they hadn’t. The site was established in Madrid May 2003 to sell music subscriptions, falsely believing that a loophole in Spanish law would allow it to sell US music licensed through Spanish music publishing agencies, without having to consult the record labels themselves. According to Rosso, the company shut down Puretunes.com in June 2003, after just a month in business, once they realized this was not the case. During its operation, Puretunes sold download subscriptions,…

New York Attorney General Investigates ‘Payola’ Charges Against Majors
Competition , Record Labels / December 2004

COMPETITION LAW Record Labels The New York Attorney General, Eliot Spitzer, has targeted the major labels in the US (Warners, Universal, EMI, BMG-Sony) in an anti corruption investigation into payola – securing radio airplay for acts. Mr Spitzer has issued subpoenas to EMI and the other majors to seek details of any links between record companies and independent pluggers who are used to promote artistes to radio stations. Mr Spizer is investigating whether the use of ‘go-betweens’ violates anti-payola laws in the US – enforced by the Federal Communications Commission which prevent labels buying airtime. In 2002 the RIAA called on the US Government to bolster the laws and investigate questionable practices in the radio industry. Source: The Times 23 October 2004 and see : http://www.guardian.co.uk/business/story/0,3604,1334252,00.html

Forum non conveniens Principles upheld in Claim Against Schwarzenegger. Richardson vSchwarzenegger & Others (2004)
Artists , Defamation , Internet / December 2004

DEFAMATION Artists, Internet, Broadcasters ARTICLE: Jonathan Coad, Solicitor, Simkins Partership This case where judgment was handed down on 29 October 2004 concerned the allegations which surrounded Arnold Schwarzenegger as he stood for election as governor of California. The claimant was the television presenter Anna Richardson. She was one of a number of women who came forward and suggested that Schwarzenegger had engaged in inappropriate conduct. It was the denial of these allegations and suggestion that they were fabricated which gave rise to a claim in which the question of the appropriate forum to litigate Schwarzenegger’s reputational issue came before Mr Justice Eady. There was what the judge himself described as a cri de coeur from Richard Spearman QC on behalf of one of the defendants, Mr Walsh (a spokesman for Mr Schwarzenegger), in these terms: “This case is about whether a spokesman for a foreign politician in a local election campaign who was asked by a foreign newspaper to respond on behalf of the foreign electoral candidate to allegations concerning the past conduct of that candidate, and he provided a response that is immune from suit under local law and is protected by qualified privilege under our system in circumstances…

Database Protection narrowed: British Horseracing Board v William Hill ECJ, 9 November 2004
Copyright , Internet / December 2004

COPYRIGHT Retail, Internet This case arose out of a referral by the Court of Appeal who asked the European Court of Justice to clarify the extent of the Database Right. The Database Right, which was thought to provide wide-ranging protection for databases far beyond that afforded by standard copyright, has been narrowed in reality once a fixture database was published it became unprotected. The right was thought to be useful where a database may not qualify as an original literary work under the provisions of the Copyright Designs & Patents Act 1988. The European Court of Justice finally ruled in the case by giving answers to some key questions regarding interpretation of the Database Right, which was created by an EU directive and implemented in the UK by the Database Regulations 1997. The ECJ ruled in William Hill’s favour by finding no infringement of BHB’s Database Right. The case involved the accessing of data from BHB’s database of pre-race information by William Hill bookmakers (via an intermediary subscription service), which was then displayed on the William Hill website. Given the immense amount of information in the original database, it was accepted by both sides that William Hill had only displayed…

Newton fails in appeal against the Beastie Boy’s unauthorised use of song melody, Newton v Diamond

COPYRIGHT Record Labels, Music Publishing, Artists Jazz flutist James W. Newton has again failed in his action against the Beastie Boys as a federal court in San Francisco denied for a third time his copyright infringement claim against the band and various distributors of the rappers’ 1992 recording “Pass the Mic.” The suit, filed in Central District Court in Los Angeles in 2000, claimed that the sample infringed the Newton composition “Choir.” Although the Beastie Boys licensed Newton’s recording before releasing their song, they claimed the six-second sample of the underlying composition – consisting of only three notes – was too small to require a license under copyright law even though it was looped over 40 times in their song. The District Court agreed with the group, and granted summary judgment in 2002. Newton appealed, but the Ninth Circuit Court of Appeals also sided with the Beastie Boys in 2003. The court held that the amount of the composition sampled was too small to be unlawful; it was a lawful “de minimis” use. Newton petitioned the three-judge panel to reconsider its decision or to hold a rehearing en banc, with the participation of all active Ninth Circuit judges. In this…

Rolling Stones must arbitrate royalty dispute with Decca

CONTRACT Record Labels, Music Publishing, Artists Mr Justice Pumfrey has held that the Rolling Stones must settle their royalty dispute with Decca by way or arbitration. The band had been seeking to audit Decca’s books to force the label to pay out millions of pounds allegedly owed to the band. However the High Court hearing resulted in a ruling that under the terms of an agreement between the label and Mick Jagger, Keith Richards and Charlie Watts, disputes over royalty payments must be referred to arbitration rather than being dealt with by the court. The dispute arose out of royalties from the best selling compilation 40 Licks. The band were given leave to appeal. SourceThe Times 13 November 2004 and see : http://www.billboard.com/bb/daily/article_display.jsp?vnu_content_id=1000718886

House of Lords restricts occupiers liability for accidents: Tomlinson v. Congleton Borough Council and others(2004)
Health & Safety , Live Events / December 2004

HEALTH & SAFETY Live Event Industry The House of Lords has made an important decision limiting the liability of occupiers: This case arose out of a tragic accident at Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres and owned by Congleton Borough Council since 1980 when the council acquired the land surrounding what was then a derelict sand quarry and laid it out as a country park. The Park is managed by Cheshire County Council. On a very hot 6th May 1995 18 year old John Tomlison and some friends went to the Park and to cool of Tomlinson dived into the lake and his head hit the bottom, broke his fifth vertebrae and is now a tetraplegic. The majority of the Court of Appeal (Longmore LJ dissenting) had allowed an appeal from the decision of Mr Justice Jacks and held that the defendants were liable for a claim in occupier’s liability. However the House of Lord robustly criticised the majority decision in Court of Appeal and all five Law Lords found that no liability was owed to the claimant, upholding the original judgement of Jacks J and supporting the position of Longmore…

Fair Dealing – Or What Connects Princess Di, L. Ron Hubbard and A Clockwork Orange?

COPYRIGHT Broadcasting, Record Labels, Music Publishing, Publishing ARTICLE: Carrollanne Lindley, trademark attorney and partner, Kilburn & Strode In this article, UK trade mark attorney Carrollanne Lindley explores the defence of ‘fair dealing’ which in UK law can be used as a defence in certain circumstances by those who have copied an original work without permission. Fair dealing (and ‘fair use’) in the USA do have a direct relevance to the music industry, particularly to music sampling disputes, and readers may also wish to reference the Music Business Journal article by Ben Challis on this topic -“‘The Song Remains The Same” – and a link is given at the foot of the page for this article. Copyright law in the United Kingdom stems from statute. Therefore, as any act of copying an original work is subject to a blanket cover, all exceptions must be given by statute. Fair dealing as a defence, dealing equating to use in this context, is derived exclusively from legislation. The provisions are laid out in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988 as amended. There are three permitted purposes generally – criticism or review; reporting current events; research and private study….