Digital Freedom Campaign launches to fierce copyright industry opposition
USA

COPYRIGHT Record labels, music publishers, film, television The Consumer Electronics Association and a coalition of trade groups and nonprofit groups including Public Knowledge and Media Access Project have launched a new public relations campaign to warn the public against restrictions on digital technologies. Dubbed the Digital Freedom Campaign (www.digitalfreedom.org) the group aims to target legislative proposals and legal efforts by Hollywood studios, record labels and other content providers which they say would place unfair restrictions or impose excessive fees on digital technologies. But both the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have hit back and the RIAA said “Our position is basic: artists, songwriters, music publishers, musicians and record labels deserve to be paid when our music is downloaded and enjoyed by fans,” the ad states. “We ask that you recognize our right to make a fair return on the music we produce – our innovation.” Meanwhile, the MPAA highlighted the damage the entertainment industry suffers from DVD, illegal downloading and other piracy. However the new group said that digital music players like Apple’s iPod, the social-network and video-sharing Web sites MySpace and YouTube, and other digital technologies have brought “creative democracy”…

The Legal Smack Down On Music Sampling: Is The Age Of Hip Hop Over?
Artists , Copyright , Record Labels / December 2006
UK
USA

COPYRIGHT Artists, record labels ARTICLE LINK: By Marina Whelan Sedgwick Detert Moran & Arnold LLP Using the recent case of Bridgeport Music v. Dimension Films (2005) the legalities of the ‘borrowing’ of sound recording samples are explained. http://www.mondaq.com/article.asp?articleid=43602&email_access=on See also the ARTICLE on this site ‘The song remains the same’ by Ben Challis analysing the legality of sampling in both the US and the UK, the Bridgeport case and the recent Newport vDiamond (2003)decision and the defences of ‘fair use’ and ‘fair dealing’. And also see this ARTICLE LINK http://www.slate.com/id/2153961/ “The shady one man company that’sdestroying hip-hop” which looks at the activities of the same Bridgeport Music who have been very active in protecting their copyrights, in particular the works of funk-master George Clinton – which have been repeatedly sampled. Bridgeport recently took on Jay-Z alleging unauthorized samples in his work. There seems to be a growing feeling that recent court decisions on sampling (particularly in the USA) have perhaps now shifted the balance of power so far in favour of copyright owners that music creators, especially hip hop, are starting to suffer unfairly.

Publisher’s plagiarism claim against 50 Cent fails
Copyright , Music Publishing / December 2006
USA

COPYRIGHT Music Publishing A copyright case which claimed 50 Cent’s ‘In Da Club’ copied from 2 Live Crew’s ‘Its Your Birthday’, written by Luther Campbell, has been dismissed by a US judge. Judge Paul Huck ruled that the line of Campbell’s song (“Go Shelia, it’s your birthday”) was a “common, unoriginal and non copyrightable element of the song” which was not entitled to protection. Judge Huckle found that were no similarities between ‘In Da Club’ and ‘It’s Your Birthday’. He added that no reasonable jury would infer otherwise and said that no one would get the two songs confused. The original lawsuit was filed in January on behalf of Lil’ Joe Wein Music, the company that holds the copyright to ‘It’s Your Birthday’. http://www.nme.com/news/50-cent/24903

A case of look-alikes and smell-alikes: L’Oreal v Bellure (2006)
Artists , Live Events , Trade Mark / December 2006
UK

TRADE MARK Live event industry, artists ARTICLE LINK – Article by Lindsey Wrenn, Lee Curtis and Rebecca Tilbury, Pinsent Masons On the 4th October 2006, the English High Court handed down a judgment which appears to make it easier for trade mark owners to prevent so-called look-alike products by holding that ‘look-alike’ products can infringe a trade mark. Here the packaging of a rival perfume was not identical to L’Oreal’s trade mark so a claim under S10(1) of the Trade Marks Act 1994 could not be brought. The court also held that whilst the packaging was similar to L’Oreal’s and was for the same nature of goods, the defendant had not produced packaging that was confusingly similar to the claimants so a claim failed under section 10(2) of the TMA failed. However, the court found that section 10(3) DID apply in that a person infringes a registered trade mark if he uses in the course of trade in relation to goods and services a sign which (a) is identical with or similar to the trade mark,… where the trade mark has a reputation in the United Kingdom and the use of the sign being without due cause, takes unfair advantage of, or is detrimental to, the distinctive…

Buffet fights online merchandisers
Artists , Trade Mark / December 2006
USA

TRADE MARK Artists Country Singer Jimmy Buffett has filed law suit asking a U.S. federal judge to stop a Web site operator from infringing Buffett’s trademarks. The lawsuit filed in U.S. District Court in Galveston, Texas, accused Robert Akard of operating a Web site, underonehut.com, which sells Buffett-trademarked items without permission. Buffett, one of the biggest selling artists in the world, won a previous court order in Nevada, but it “wasn’t comprehensive enough” and Akard has since surfaced in New York, Florida and Texas, Buffet’s lawyer alleges. Buffett complains that Akard advertises as “Jimmy Buffett’s Online Store for Merchandise,” and sells T-shirts, music CDs and other items that Buffett sells himself. Buffett is asking a judge to order Akard to stop using the singer’s name and likeness, account for his profits, turn infringing goods over to Buffett and pay unspecified damages. http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003381582

Kazaa settles with US music publishing industry
Copyright , Internet , Music Publishing / December 2006
USA

COPYRIGHT  Internet, music publishing  Having already finalised a $115 million settlement with record labels, the firm behind file-sharing network Kazaa has now settled a case with music publishers in the US, according to the wonderful out-law.com site. Sharman Networks, the company behind Kazaa, is the latest file-sharing software company to reach a settlement with the music industry. The NMPA said that it had pursued a class action law suit against Kazaa for infringement of the copyright of its music publisher members who own and represent the rights to songs and lyrics on behalf of songwriters and composers. The US National Music Publishers’ Association (NMPA) said that it had informed the US District Court that it would not be pursuing its action because Sharman Networks had agreed to pay an undisclosed “substantial sum” to settle the dispute. The landmark case of MGM v Grokster established a liability for companies that operate peer-to-peer (P2P) file-sharing networks for users infringements in illegally downloading and swapping files. Supreme Court Justice H Soutar  held that Grokster’s “unlawful objective is unmistakable” and that “We hold that one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts…

Spanish Court finds private downloading legal
Copyright , Internet , Record Labels / December 2006
Spain

COPYRIGHT  Record industry, internet  In a judgment which will dismay the record industry, a Spanish judge has held that downloading for personal non-commercial use is not a criminal offence. Judge Paz Aldecoa of ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it “a practised behaviour where the aim is not to gain wealth but to obtain private copies”. The Judge, in Penal Court No3 in Santander, held that that article 31 of the Intellectual Property Law in Spain established the right of the public to obtain copies of music without permission of the author, provided they were for private use and no profit was made. The Spanish recording industry federation Promusicae says it will appeal against the decision. The state prosecutor’s office and two music distribution associations had sought a two year sentence against the man, who downloaded songs and then allegedly offered them on a CD through e-mail and chat rooms. However, there was no direct proof he made money from selling the CDs. The Spanish Justice Minister Juan Fernando Lopez Aguilar says Spain is drafting a new law to abolish the existing right to private copies of…

Australian copyright law limps into the digital age
Copyright , Internet , Record Labels / December 2006
Australia

COPYRIGHT  Recording industry, internet  ARTICLE LINK –  By Nathan Cecil, Norton White A useful article explaining the much criticized provisions of Australia’s new Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill http://www.mondaq.com/article.asp?articleid=43670&email_access=on The bill has caused quite a storm in Australia – with the Government and record labels being openly mocked. Seehttp://radar.smh.com.au/archives/2006/11/copyright_out_o.html and see http://australianit.news.com.au/articles/0,7204,20792269%5E15306,00.html

IFPI Knocked by Chinese decision
Copyright , Internet , Record Labels / December 2006
China

COPYRIGHT Internet, record labels Following on from a Spanish Court’s decision that private downloading for personal use wasn’t illegal, The Chinese Internet search leader Baidu.com has been cleared of helping users to download music illegally in a case brought by the International Federation of the Phonographic Industry on behalf of some of the world’s largest music companies. The IFPI which estimates that about 85 percent of all music consumed in China is pirated, said it would appeal against the ruling by the No. 1 Intermediate Court of Beijing and was confident it would be overturned. I am amazed by this inexplicable judgment that is totally out of step with Chinese law,” IFPI chairman John Kennedy said in a statement.  The decision seems to have been made on the basis that Baidu merely links to infringing third party sites and hosts no infringing material itself. Its links do not differentiate between legal sites and infringing sites. http://www.shanghaidaily.com/art/2006/11/20/297569/Music_giants_lose_online_copyright_fight.htmand http://www.theregister.co.uk/2006/11/21/baidu_wins_music_downloading_ruling/

New rules for illegal downloading in Germany
Copyright , Internet , Record Labels / December 2006
Germany

COPYRIGHT Internet, record labels In Germany, Justice Minister Brigitte Zypries has introduced draft legislation limiting fines for private downloading to a cap of 50 euros ($64) per case in Germany. Zypries said that ”the limitation for the first warning letter from a lawyer ensures that we don’t exaggerate in punishing copyright breaches”.  The maximum applies only to those who download without intending to resell it.  To fine the downloaders, the music industry has been using a provision of German law that allows lawyers to force wrongdoers to write apologies, and then to pay the law firm’s entire bill.  In future, the law firms would only be able to charge members of the public 50 euros per incident for this service. Zypries also said that the darft legislation would also increase powers to prevent product piracy, enabling German customs agents to rapidly destroy counterfeit goods that imitate famous brands.

No deal – so Universal take on MySpace
Copyright , Internet , Record Labels / December 2006
USA

COPYRIGHT Internet, record labels Universal Music Group may have reached an agreement with YouTube, Google and now Microsoft’s Zunes about legal content use but has now filed a lawsuit against popular social networking site MySpace for infringing copyrights of thousands of its artists’ works. Universal , owned by Vivendi, filed the suit at the US District Court Central District ofCalifornia,Western Division. The lawsuit accuses MySpace, owned by News Corp, itself of course a champion of copyright laws (!) of allowing users to upload videos illegally and taking part in the infringement by re-formatting the videos to be played back or sent to others saying MySpace “encourages, facilitates and participates in the unauthorized reproduction, adaptation, distribution and public performance. The action points in particular to features of MySpace that enable users to store copies of videos on their profile pages, and to access copyright material without permission. The suit comes at a time when Universal’s talks with MySpace had broken down and with a leak of Jay-Z’s album onto MySpace . However (and remarkably a t the same time!) MySpace unveiled an enhanced copyright protection tool to make it easier for content owners to remove unauthorized material. MySpace described Universal’s action…

IFPI responds to European piracy rulings
Copyright , Record Labels / December 2006
Finland
Sweden

COPYRIGHT Record labels Despite the bad news in Spain and China, The International Federation of The Phonographic Industry has welcomed a ruling in Finland that will see a man who sold pirated karaoke records over the internet face a suspended custodial sentence and significant fine. The Swedish man who sold the pirated material has been given a 30 day suspended prison sentence by the Finnish courts for copyright offences. He will also have to pay 70,000 euros in compensation, damages and expenses to the rights holders. Although based in Sweden, the man sold the pirated material via a website and magazine adverts in Finland, and was caught via an operation led by Finnish authorities with the support of the Swedish police. www.ifpi.org

Will safety law kill clubs? Seattle club owners fear sprinkler rule is one business cost too many
Health & Safety , Live Events / December 2006
USA

HEALTH & SAFETY Live Event Industry ARTICLE LINK: By Gene Stout at Seattle pi .con. In the wake of the Great White disaster in Rhode Island, nightclub owners in over 30 Seattle venues are scrambling to meet new fire requirements in time for a 1st December deadline. With costs ranging from US $15,000 to US$50,000 for each venue, many of the owners are questioning the sense of the new requirement and a number say they will close under the combined burdern of new Mayorial regulations, fire requirements and a smoking ban. http://seattlepi.nwsource.com/local/291018_sprinklers03.html

The UK’s new Licensing Act rings in the changes
Health & Safety , Licensing , Live Events / December 2006
UK

HEALTH & SAFETY / LICENSING Live event industry As the merits of the Licensing Act 2003 become more apparent, members of a town band are furious after being told they couldn’t play Jingle Bells in their Christmas shows unless they paid for a licence – because the song has no religious content. Callington Town Band in Cornwall, a registered charity, is having to fork out £21 for each of seven temporary licences to cover their Christmas programme after Caradon District Council’s licensing department told the band it would fall foul of the Act which came in to force this April, if it played anything other than religion based carols during its seven Christmas concerts. The council said a temporary entertainment notice (TEN) was needed every time entertainment was provided in venues without public licences. That means festive favourites like Jingle Bells, White Christmas and Rudolph the Red Nose Reindeer need a licence whereas Christmas carols which are considered religious music do not. In London, Lambeth Council has revoked the premises licence of a Brixton nightclub where police discovered two loaded handguns and drugs during a raid earlier this month. The council’s licensing sub-committee took the decision to revoke the licence for the J-Bar in Stockwell Road, Brixton,…

The rules for patents for computer software examined in Aerotel v Telco (2006)
Internet , Patents / December 2006
UK

PATENTS Internet By Tom Frederikse, Solicitor, Clintons The Court of Appeal has provided a welcome clarification on the extent to which a computer programme (software) is protectable by UK Patent Law: none (*except where the computer program has a “technical effect”). In two appeals heard together, Aerotel Ltd v Telco Holdings Ltd and Re: Macrossan [2006] EWCA Civ 1371, Telco was sued for patent infringement and counter-claimed for revocation of Aerotel’s patent, whilst Mr Macrossan had appealed against his patent application having been refused for “unpatentable” subject-matter. The appeal from Mr Macrossan was dismissed, the appeal from Aerotel was allowed and the Court took this opportunity to examine the patentability of software and business methods. Under UK and EU law, “computer programs” and methods for “doing business” or “performing mental acts” cannot not protected by a patent, but the question of what a computer program or a business method actually is has long been uncertain. The main problem in this area is so many inventions and gadgets use software as a element that the line is vague between what is and is not a “computer program”. The Court likened it to an elephant: “you know it when you see it but you can’t describe it in…

Vivendi’s purchase of BMG Music clears first regulatory hurdle
Competition , Music Publishing / December 2006
USA

COMPETITION Music publishing The Federal Trade Commission and the US Justice Department have both given the green light for Vivendi Universal to acquire BMG Music Publishing FiveEight magazine reported. The acquisition now needs the approval of the European Union’s regulators who are due to make their decision by the 8th December. Independent label trade association IMPALA is rounding up its independent label members to oppose the tie up. With the Sony BMG merger under scrutiny following the European Court Of First Instance’s ruling on the flaws in the EC’s approval of that merger, IMPALA clearly believes there is a strong chance that the EC may block the Vivendi/BMG Music Publishing marriage. The E1.6B deal would create the single biggest publishing entity in the world. Based on 2005 figures, a combined BMG Music Publishing and Universal Music Publishing would control 25.7% of the market, far ahead of EMI Music Publishing’s 16.7% and Warner/Chappell’s 15.1%. http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003382106 

Sports agents are ‘less essential’ than Artist Managers Proform v Proactive
Artists , Contract / December 2006
UK

CONTRACT Artists ARTICLE  Tom Frederikse, solicitor, Clintons The High Court has confirmed its quite different view of sports agency contracts from those of musicians’ and artists’ agencies. The former agent of Wayne Rooney, Proform Sports Management Limited, lost its claim of unlawful contract interference against the footballer’s new agents, Proactive Sports Management Limited, in a judgment published yesterday. Proform entered into an exclusive management and agency agreement with Rooney in 2000 (when he was 15 years old) for a term of two years. He did not take legal advice, though his father also signed the contract. The contract covered all “functions in respect of personal representation on behalf of his work as a professional football player” as well as all “contract negotiations and transfers”. Within two years, Rooney left Proform to join Proactive, who Proform claimed had induced Rooney to breach his contract by leaving. Proactive claimed that the contract did not cover “marketing and image rights” and more importantly, in any event, was voidable by Rooney for being a contract with a minor. The court accepted that a contract with a minor is not enforceable against him unless it is a contract for “necessaries” but it was unclear whether this…

The courts must decide who actually wrote A Whiter Shade of Pale
Artists , Copyright , Music Publishing / December 2006
UK

COPYRIGHT  Artists, music publishing  A Whiter Shade Of Pale, The Procul Harum hit which has generated £6 million in British radio, club and jukebox plays and was named the most-played record of the past 70 years in 2004, is to become the centre of a million-pound royalties dispute to be heard at the High Court in London. Released in 1967, the song became a global smash, selling 10 million copies. It is still used in advertisements and regularly features in “greatest song of all time” polls. The song has always been credited to Gary Brooker, Procol Harum’s frontman, and lyricist Keith Reid. Now almost 40 years on, Matthew Fisher, the band’s classically trained organist and now a computer programer, claims that the song’s signature winding melody line was his work. The dispute is more complicated because all sides agree that Johann Sebastian Bach originally inspired the song’s mournful melody.  Brooker first wrote the song as a straight R&B tune, based on Bach’s Airfrom the Orchestral Suite No 3 in D (or Air on a G String), which he had heard on a Hamlet cigar advertisement, and the composer’s Cantata No 140, known as Sleepers Awake. With Bob Dylan’s records then popularising the Hammond organ sound, the band called on Fisher…

New survey says public ‘support’ extending the copyright term in sound recordings
Copyright , Record Labels / December 2006
UK

COPYRIGHT Record labels Research commissioned by the BPI seems to show majority support among British consumers for an extension in the recording copyright in Britain – although answers given always depend on the question asked! The BPI is currently lobbying the UK government to extend the term of UK sound recording copyright from the current 50 years to match the equivalent copyright in the US which runs for 95 years. In a survey undertaken by YouGov on behalf of the BPI, 62% of those surveyed agreed that UK recording copyrights should be brought inline with the US. Only 20% opposed the proposal, with 18% undecided. The BPI argue that a copyright extension is vital to support the unique cultural asset of the UK music industry, to drive re-investment in the creative economy, to end the discrimination of protection afforded to other cultural industries, to benefit consumers through increased availability of music at no extra cost and to boost UK’s international competitiveness in the global knowledge economy. Commenting on the YouGov poll, BPI chief Peter Jamieson told reporters this weekend: “We are hugely encouraged that the majority of British consumers agree with us that UK musicians should receive as much copyright protection as their…

BPI welcome successes against CD and DVD pirates
Artists , Copyright , Record Labels , Trade Mark / December 2006
UK

TRADE MARK /COPYRIGHT  Mechandising, record labels, artists  The BPI has welcomed two success stories in the ongoing battle against counterfeit CD and DVD piracy in the UK. The BPI successfully prosecuted James Cowan, his wife Ann Cowan and Andrew Wood, all from County Durham, after a routine anti-piracy operation unveiled a sophisticated bootleg CD enterprise. The three defendants made pirate of copies of CDs and DVDs at a property above a video rental store, and are thought to have made £10,000s a week by selling the pirated material at markets, pubs and industrial units all over the North East. James Cowan was last week found guilty on counts of conspiracy to defraud, tax evasion and benefit fraud. Ann Cowan was found guilty of defrauding the music and film industries, benefit fraud and attempting to pervert the course of justice. Wood, who was allegedly in charge of the pirating operation, had earlier pleaded guilty to counts of conspiracy to defraud and tax evasion. CMU Daily reported that all three will be sentenced in the New Year. The BPI also welcomed the seizure of over 200,000 Bollywood CDs and DVDs following a raid in West London last week. With a value of…

The End User: When it comes to digital hardware, copyright levies are a taxing debate
Copyright , Record Labels / December 2006
EU

COPYRIGHT  Record labels, film, television, technology  ARTICLE LINK  By Victoria Shannon, International Herald Tribune A useful summary of the pros and cons of levies on hardware such as photocopiers, technology such as CD Burners and CDR discs etc: These are widely used in Europe (but not the UK) to compensate copyright owners – extra charges on hardware to make up for the ease of copying. http://www.iht.com/articles/2006/11/22/business/ptend23.php

New exceptions to DCMA anti-circumvention rules
Copyright / December 2006
USA

COPYRIGHT  All areas The US Library of Congress has approved six exceptions to the rules against decryption of technological protection measures in the Digital Millennium Copyright Act. These include (a) allowing users of mobile phones to break software which locks their handsets in with a particular network (b) allowing academics to break locks on DVDs to obtain film snippets which will be used for teaching compilations and (c) allowing blind people use special software to read copy-protected electronic books. The changes do not include the now much debated ‘personal use’ exception which would allow consumers to legally de-encrypt security protection on their own CDs so contents to be copied on to personal MP3 players. The new exceptions will expire after three years. http://www.usatoday.com/tech/news/2006-11-23-copyright-digital_x.htm?POE=TECISVA

60s pop star wins libel settlement
Artists , Defamation , Music Publishing / December 2006
UK

DEFAMATION Artists, publishers Sixties pop star Frederick Gladstone, professionally known as Tony Rocco, has won a High Court settlement against author Jake Arnott and Publishers Hodder & Stoughton for libel. Were had performed under the stage name “Tony Rocco” since 1962 when he had had a hit single, Stalemate. Arnott (born 1961) wrote a novel, Johnny Come Home, which featured a character called “Tony Rocco” who was said to be a popular music manager famous for having had a hit single in the 1960s. The fictional Rocco was depicted as a sordid, predatory pederast who lusted after teenage boys. Arnott and the publisher have both apologised for the distress and embarrassment caused to Were and openly acknowledged that Gladstone was and is nothing like the fictional Rocco: The defendants confirmed that the character of Tony Rocco in the novel was not intended to depict Were or refer to him in any way. They undertook not to repeat the allegations and said they would attempt to recall all copies of the novel distributed so far. They also agreed to change the name of the character for all and any future reprints of the novel and to pay Were a substantial sum by way of damages,…