SONY BMG settle payola claim
Competition , Record Labels / September 2005
USA

COMPETITION Record Labels Sony BMG is paying $10M as a settlement following Attorney General Eliot Spitzer’s payola investigations in the US. The money will be paid to non-profit organisations that promote music education. The investigation illustrated that to get Franz Ferdinand played on radio station WKSE, the label paid $4,000 which was used to send radio executives to Miami. It is also said to have disguised ‘payoffs’ such as flat-screen TVs by referring to them as “contest giveaways”. It is expected similar settlements with the other majors will be arrived at soon. Sony BMG responded by firing its promotion executive at Epic and disciplining four other executives at Sony Urban and Epic. Spitzer is now thought to be investigating radio stations in the United States on the similar matters. See: http://www.guardian.co.uk/business/story/0,,1535935,00.html

Use of ‘Doors’ name restricted
Artists , Trade Mark / September 2005
USA

TRADE MARK Artists Original Doors members Ray Manzarek and Robby Kreiger along with ex Cult frontman Ian Astbury have been banned from using the band’s name while touring. This follows legal action brought by original drummer John Densmore and the families of Jim Morrison and Morrison’s then girlfriend in the United States. Keyboard player Manzrek, guitarist Krieger and vocalist Astbury have been touring as the Doors of the 21st Century since 2002. The suit from the parents of late rock star Jim Morrison claimed that by re-forming the band with another singer, Manzarek and Kreiger had “maliciously misappropriated” the name. George and Clara Morrison claimed breach of contract, unfair competition and trademark infringement in a Los Angeles Superior Court lawsuit and sought unspecified damages and to put a stop to the new incarnation of the band. Manzarek and Kreiger were also sued by the parents of Morrison’s late girlfriend, Pamela Courson, who, according to the lawsuit, owns half of the rock icon’s share in the Doors. The Morrison lawsuit alleged that “over the past 37 years the legendary rock band the Doors … has become one of the most distinctive names in contemporary music,” the lawsuit said and that the…

Megadeth singer sues bassist over use of band name in advert
Artists , Trade Mark / September 2005
USA

TRADE MARK Artists In a slightly unsual case Megadeth’s lead singer has accused their ex-bassist of using the heavy metal group’s name without permission. However the use is not as part of a touring band or on an album but as a historical record of the bassist David Ellefson’s membership. Band founder and vocalist David Mustaine claims he and Ellefson had an agreement restricting Mr Ellefson’s use of the group’s name. Mr Mustaine says an advert Mr Ellefson made for musical equipment contravenes this deal. He is seeking unspecified compensatory and punitive damages. In the legal action filed at Los Angeles’ Superior Court, Mr Mustaine stated that Mr Ellefson “shall not use the work or mark ‘Megadeth’ to advertise, market or promote any product or service”. Mr Mustaine claims that an advertisement in Bass Player magazine, which features Mr Ellefson holding a pedal tuner for bass guitars and includes the names of bands he is involved with – including Megadeth – breaks a settlement agreement both parties entered into which prevented Mr Ellefson using the band’s name – even thought the use is not as a direct endorsement. See: http://news.bbc.co.uk/1/hi/entertainment/music/4721497.stm

Trademarks in India
Trade Mark / September 2005
India

TRADEMARKS General This is a link to the article India: Trade Marks: Identity that Demands Protection by Rajkumar Dubey (Dubey & Partners, Advocates) which gives a good descriptive account of trade mark law in India. See: http://www.mondaq.com/about.asp?section_id=5&product_id=9

Ashanti producer wins $630,000 in royalty claim
Artists , Contract / September 2005
USA

CONTRACTS Artists A US judge has ruled that that Ashanti owes $630,000 to her first producer for breach of contract. The singer was not in court when the jury returned its verdict in favor of Genard Parker, who worked with Ashanti in 1996 and 1997 when she was 16. Ashanti testified during the four-day trial that Parker did not live up to the terms of their deal as he helped her create music in a home studio that was so crude she sang in the bathroom. Parker claimed that he was due a royalty on Ashanti’s album after Ashanti’s mother approached him in 1996 and he produced tracks for Ashanti in anticipation of future compensation. Parker and his team claims that Ashanti and her mother broke the contract and owed them “certain benefits and fees” to the tune of $4 million. Parker argued that Ashanti eventually signed with a record company and that he released her from his contract with the understanding that he could produce two songs on her first album. Ashanti, now 24, has sold more than 6 million copies of two albums, including “Ashanti,” her debut, which garnered a Grammy Award in 2003 for best contemporary R&B…

Digital Freedom in the UK
Copyright , Internet / September 2005
UK

COPYRIGHT Internet This is a link to an interesting article by Danny O’Brien on trying to repeat the success of the Electronic Frontiers Foundation in the United Kingdom. See: http://www.guardian.co.uk/online/story/0,,1537039,00.html

Websites and the law in the UK
Copyright , Data Protection , Internet , Trade Mark / September 2005
UK

COPYRIGHT, TRADE MARK, DATA PROTECTION Internet This is a link to a useful article by John Simmons of Collyer-Bristow, solicitors, on managing to stay within the law with a UK website: ‘Keeping Your Website Legal’. See: http://www.mondaq.com/article.asp?articleid=33903&email_access=on

Russia’s largest CD manufacturer signs accord with IFPI
Copyright , Record Labels / September 2005
Russia

COPYRIGHT Record Labels IFPI and the largest optical disc manufacturer in Russia, the Ural Electronic Plant (UEP), have signed an agreement that aims to help the plant produce only legitimate audio and video discs. The cooperation agreement with IFPI, representing the recording industry worldwide, is the first of its type to be signed by a Russian plant. The IFPI hopes that other optical disc manufacturers in Russia will follow suit. Russia has the world’s second biggest pirate market after China and is a mass exporter of pirate discs originating from the country’s manufacturing plants. The agreement sets the rules that will help the UEP to ensure that products manufactured at the plant are legitimate. Under the agreement, the UEP will inform IFPI about the purchase and installation of any new equipment used to manufacture optical discs. Representatives from IFPI will be given access to the plant to obtain samples of its manufactured products. The UEP will also notify IFPI of any orders where doubts are raised as to their legality and both parties undertake to cooperate to determine the nature of such orders. A key part of the agreement is that the UEP will undertake the necessary actions to enable…

Dream Home, The Block and The Complex format disputes in Australia
Copyright / September 2005
UK

COPYRIGHT Television ARTICLE : By Jonathan Coad, Solicitor The trade in television formats has, since its inception over 50 years ago, been an international one. The courts worldwide are increasingly facing the same issue, which is whether the concepts from which programmes – particularly in the reality genre – are made should be permitted the monopoly of copyright protection. A dispute currently being played out in the Australian courts typifies that dilemma. First there was the programme Dream Home created by Ninox Television. Then there was The Block for which Nine Films and Television was responsible along with Nine Network Australia. Then there was The Complex which showed in America by means of a licence granted by the creators of The Block. Nine Network produces and purchases television programmes and supplies them to Nine Films which in turn exploits them by the granting of licences. Ninox makes television programmes in New Zealand for broadcasting there and for sale overseas. In this case, which was heard in Australia last month, Ninox asserts that it and TV New Zealand own copyright in the Dream Home format, and that by producing and screening The Block, Nine Network and Nine Films infringe that copyright. Nine in turn claims that the…

IFPI Publish 12th Recording Industry in Numbers
Copyright , Record Labels / September 2005
Brazil
EU
Hong Kong
Japan
Mexico
Norway
UK
USA

COPYRIGHT Record Labels The International Federation of Phonographic Industries has published its 12th annual Recording Industry in Numbers which includes record company market share figures for 2004, and, for the first time shows global revenues from the collection of performance rights, along with data, statistics and trends in 65 countries’ music markets. Market share: Universal maintains its position as the world’s biggest recording company, with a 25.5% share of the world market. Sony BMG is next with a 21.5% share followed by EMI at 13.4% and Warner at 11.3%. The independent sector holds steady with a 28.4% global share. National and regional market share information is also available. Performance rights revenues: For the first time, IFPI is publishing revenues to the industry from the public performance of music and music videos. This is an increasing revenue source for record companies as the channels for getting music to the consumer expand. Performance rights collections totalled $US493 million in 2004 – up 4.5% on 2003 and up 19% over the past five years. IFPI estimates that potential revenues from the sector could more than double its current value over the next five years. The figures include licensing income from webcasting and simulcasting…

Canadian Supreme Court rule technology levy illegal
Canada

COPYRIGHT Record Labels, Music Publishers, Technology The Supreme Court of Canada has ruled that the Canadian Private Copying Collective cannot apply a levy on digital music players. The $4M collected to date must be paid back to the device manufacturers and importers. The Supreme Court upheld the Federal Court of Appeal’s decision to quash CPCC levy on i-Pods and other MP3 players and other similar digital music devices which was initially approved by the Canadian Copyright Board. The Supreme Court has refused to hear further arguments regarding a levy and confirmed that that the Copyright Board was ultra vires its authority when it applied the private copying levy to digital audio recorders, and that the levy was an unconstitutional tax. The levy was collected on the basis that individuals ordinarily use these devices to make copies of recorded music for personal use. The Canadian Private Copying Collective, a non-profit agency that collects tariffs on behalf of musical artists and record companies, had been pursuing the appeal and has said that it is “disappointed” and that it felt that it was “self-evident that those products are sold for the purpose of copying music” The group argues that since many people use…

Playlouder’s legal file sharing service signs up SonyBMG
Copyright , Internet , Record Labels / September 2005
UK

COPYRIGHT Record Labels, Internet The UK’s first legal online file swapping service has signed up SonyBMG. Playlouder.com has licensed tracks from the major which has a 21.5% market share. The service, which already had agreements with a number of independent labels, offers a legal version of the ever popular but illegal file swapping offered by software such as Grokster and Kazaa. Subscribers will be charged £26 ($48 approx) for a high speed broadband connection with the added attraction of a large music catalogue available for downloading or swapping with others on the service. This allows Playlouder to monetize peer-2-peer file swapping. Because of the nature of the licence authorised users will then be entitled to make copies of the recordings for their own use in other digital players, for example burning by CDs for their car stereo or loading tracks onto their own iPod. In the United Kingdom making ANY copy without the permission of the owner of the copyright is an infringement of copy. The only exception under the Copyright Designs & Patents Act 1988 is making video copies of television programmes for later viewing (so called ‘time shifting). Playlouder will digitally fingerprint all tracks used and swapped so…

Window upgrade policy raises privacy concerns
Internet , Privacy / September 2005
USA

PRIVACY Internet, Technology Microsoft’s new policy of scanning computers for illegal software when they contact the site for upgrades or downloads could have serious privacy issues. Microsoft says that 35% of the software in use worldwide is counterfeit, at a cost to the software industry last year of $1 billion. Users of the estimated 100 million computers worldwide running illegal copies of the operating system will not receive the upgrades and can only receive security patches. However if the purchase of the illegal software was unintentional and the users fills out a piracy report for Microsoft the software company will provide Windows XP to the user. Microsoft also collects data on software being used as well as data on the flow of information between the operating system and other hardware, such as printers. No personally identifiable data will be collected, says Microsoft, and information will remain completely anonymous. For Microsoft’s statement on its data collection see:http://update.microsoft.com/windowsupdate/v6/default.aspx?ln=en-us From an article by Nvall Engfield in E-TIPS. E-TIPS is a publication of Deeth Williams Wall LLP and edited by Richard Potter QC. To review past issues of the E-TIPS newsletter, visit:http://www.dww.com/newsletter/archive.html For comment by the EFF of the Federal Bureau of Investigations use of National…

Podcasters asked to pay royalties by Dutch collection societies
Copyright , Internet / September 2005
Netherlands
UK

COPYRIGHT Internet The BBC have been hailing their free podcasting service as a major success after 1.4 million people downloaded the Beethoven symphonies it made freely available although it is thought that over half were taken up by users in the USA. Writing in the Observer newspaper (31st July) John Naughton explains that “podcasting is the delivery of an enclosed file to a computer where it can be downloaded to an MP3 player”. The technology started to be used in blogs but was recently incorporated into Apple’s i-Tunes software. Podcasting enables anyone to create what are effectively self published radio ‘programmes’. Anyone who wishes to receive the programmes subscribe to feeds using software that checks for and downloads new programmes automatically.to the author’s syndication feed which may of course be for a fee. In Holland Buma/Stemra, the agency that represents the interests of music composers, lyricists and publishers in the Netherlands and collects royalties on their behalf, is asking podcasters for compensation for lost royalties. As a temporary measure until 1 January 2006 (when presumably Buma/Stemra will announce a more definite scheme) the agency is asking professional podcasters to pay a monthly charge of €85, and non-professionals could pay as…

EC propose new offence similar to the MGM v Grokster ‘induce’ to infringe
EU

COPYRIGHT Record Labels, Music Publishers, Internet The European Commission has published a draft directive which includes provisions to criminalise “attempting, aiding or abetting and inciting” acts of copyright infringement. The EU parliament will debate the proposal later this year. If the directive is adopted, software used primarily for illegal file sharing, for example, could potentially make its developers criminally liable in one or more EU member countries. See: http://www.wired.com/news/politics/0,1283,68418,00.html

German Appeal Court upheld principle that links sites can be illegal
Copyright , Internet / September 2005
Germany

COPYRIGHT Internet The Munich Intermediate Court of Appeals has upheld a decision of a lower court that a site providing links to another site providing illegal copying software. Heise online had published a story in January about Slysoft’s anyDVDprogramme. They were taken to court for an alleged breach of Section 95a of the Copyright Act,” which bans, among other things, the manufacture, import, propagation, sale, renting, and advertisement of ‘tools to crack copy-protection mechanisms.’ The plaintiffs felt that merely providing a link to the homepage of a manufacture of copying software itself constituted a breach of this Section. In addition, Heise was accused of having provided ‘instructions on how to crack copy-protection mechanisms’ in the report. Finally, the news report was considered ‘illegal advertising’ for the sale of the software. See: http://p2pnet.net/story/5746 See Law Updates May 2005 for the lower court’s decision in this case. See Law Updates March 2005 German court clears ISPs of liability for infringing uses by third parties and see Law Updates August 2005 Links site found to infringe copyright in Australian judgment.

The UK’s new Licensing Act causes chaos
Licensing , Live Events / September 2005
UK

LICENSING Live Event Industry The UK’s live music scene is under threat as numerous pubs and clubs have failed to re-apply for licences to sell alcohol and provide entertainment according to a new report. Under the Licensing Act 2003, anyone wanting to keep selling alcohol and/or provide entertainment must complete the paperwork by 6 August 2005. The new 21 page application contains details of what entertainment the venue or pub wish to promote and applicants must send in details of their current licence along with plans of premises and other details. Applicants must also state how they will meet the four key licensing objectives: preventing crime and disorder; promoting public safety; preventing public nuisance; preventing harm to children. Research by drinks company Glenfiddich has found that half of all pub, bar and restaurant owners are yet to apply and the report claims that the number of gigs taking place in the UK every day could fall from an average of 4,500 gigs to 2,250, if the venues are forced to close due to a lack of licence. Even the Government’s own figures suggest that 30% of premises (some 60,000 licensees) will miss the deadline. The 6th August deadline has been set…

The sound of silence. Fair dealing and the use of lyrics and music by academics and musicologists
UK

COPYRIGHT Music Publishers, Record Labels, Education ARTICLE:  This is a link to an article which argues that musicologists are being penalised by record companies and music publishers who refuse to allow them permission to transcribe songs from their artists. It’s unfair and it’s got to stop, says Professor Sheila Whiteley, from the University of Salford. The Guardian, Friday August 5, 2005 See: http://education.guardian.co.uk/higher/research/story/0,9865,1542685,00.html For an article debating the issues in using the exception of ‘fair dealing’ when using copyright material without permission (related to film and TV) see ‘Fair Dealing – Or What Connects Princess Di, L. Ron Hubbard and A Clockwork Orange? by Carrollanne Lindley, trademark attorney and partner, Kilburn & Strode, London.

Sentencing R v Zhou: Trader in pirate DVDs faces prison and ASBO order
Copyright , Record Labels / September 2005
UK

COPYRIGHT Film, Television, Record Labels A trader in pirate DVDs has been handed an anti social behaviour order (ASBO) banning him from selling pirate DVDs in London. The ASBO specifically stops Gon Ren Zhou entering Newnham, his main sales area. Stratford magistrates also confiscated 1000 pirate DVDS. Zhouy, who had 15 previous Bail Act offences was jailed for six months. See: Evening Standard 19 August 2005

Google may be liable for use of third party trade marks
Internet , Trade Mark / September 2005
UK

TRADE MARK Internet The US District Court for the Eastern District of Virginia has found that search engine company Google is partially liable for including third party trade-marks in the text of sponsored links as this could cause consumer confusion in violation of US trade mark law. Google sells ‘Sponsored Links’ that appear alongside “organic” search results returned when a user queries Google’s database of indexed web sites for general terms. Justice Leonie Brinkema found that that Google’s practice of allowing trade-marks in the text of third party advertisements that appeared as Sponsored Links caused consumer confusion. Google has since ceased this practice. The Court was careful to limit the potential impact of this decision on Internet business practices, noting that the plaintiff’s business model is a unique one and that the findings are fact-specific and not yet fully resolved. Further, the Court noted that none of the advertisers themselves are party to the action and their potential liability is not an issue before the Court. For a news article, visit: http://news.com.com/2100-1024_3-5835898.html From a summary of the case by Jason Young of Deeth Williams Wall published in E-TIPS® newsletter, Vol 4 No, see:http://www.dww.com/newsletter/archive.html See: http://www.mondaq.com/article.asp?articleid=34366&email_access=on

Canadian court rejects the “Single Publishing Rule” in an internet defamation case: Carter v BC Federation of Foster Parents Association et al (2005)
Defamation , Internet / September 2005
Canada

DEFAMATION Internet The British Columbia Court of Appeal has ruled that the so-called “single publishing rule” often used in the US has no application in Canada. Under the US rule the publication of a libel gives rise to only one cause of action – when the libel is first published – even though there may be later deliveries of the same libel, for example, by way of later sales of a book containing the same libellous statement. The Court noted that both English and Australian courts had rejected the single publishing rule. Although a potential injustice could arise if a plaintiff were allowed to mount a series of lawsuits based on a single article when re-published, the Court of Appeal noted that courts have abuse of process jurisdiction to deal with such situations. From a summary of the case by Richard Potter QC editor of E-Tips. Published in E-TIPS® newsletter, Vol 4 No 4, see: http://www.dww.com/newsletter/archive.html

New MCPS rate for non-music DVDs
Copyright , Music Publishing / September 2005
UK

COPYRIGHT Film, Television, Music Publishing More details are now available on the new MCPS licensing scheme for music used on DVD and VHS products that are not specifically music-related, for example, fitness videos/TV series etc. The Audio-Visual Producers (AVP) scheme has been launched after extensive consultation with the British Video Association. Under the scheme, licensee returns are ‘auto-matched’ against the MCPS database, enabling more efficient payments and backclaims. Source: MCPS-PRS Alliance eM magazine August 2005. See: http://www.mcps-prs-alliance.co.uk/redirect.asp?targetitem=4532&sid=835

Article: “Noise Annoys”
Articles / September 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis, FRSA, LLB, MA(Law), MA Barrister-at-law Music Industry Lawyer Taking for its title a classic punk track by The Buzzcocks, this article summarises a variety of cases around the world where noise nuisance has been ruled upon in law. The implications of such rulings are of crucial importance to artists, promoters, venues owners and managers. IN the days when I still had some hair to spike up, I really used to enjoy going to loud (very loud) rock concerts. I remember coming home from a Ramones concert in the UK in the late seventies totally deaf – and I was still partially deaf at school the next day. As far as I know, my hearing did recover, but noise is a now major issue in the live music industry. Today promoters, venues and artists need to be aware of their legal responsibilities to a number of different people: to the audience, to their workers, and – as importantly – to neighbours who can suffer from noise nuisance. “Noise annoys”, but it can also damage hearing. Failure to comply with the law in respect of noise levels can result in fines, and, in extreme cases, claims for massive…