Small-scale concerts are being put at risk by new licensing laws, according to a government-backed group
Licensing , Live Events / August 2007
UK

LICENSING Live event industry The Live Music Forum says that whilst the Licensing Act 2003 was broadly ‘neutral’ in its effect on live music, grass roots music has suffered because of increased bureaucracy and regulation and should be exempt from the new regulations. The Forum, led by Feargal Sharkey, also said that some councils are “unreasonable” when issuing licences. The laws came into effect in 2005, introducing a single licence covering entertainment and alcohol, aimed at easing restrictions on live music. The Forum, which was set up by the Department for Culture, Media and Sport, said on one occasion a brass band was told it could only perform religious songs if their performance was for charity. It was then asked to apply for a licence which would cost more than the funds it expected to raise. A pub landlady was told she required a variation in her licence to allow regular gatherings of a group of elderly men who sang folk songs together. The group has also recommended that acoustic performances should be exempt from licensing, that ‘incidental music’ – not the main attraction at a venue – be clarified and exempt and that venues holding less than 100 people be exempt….

Cumbrian pubs and venues forced to operate illegally due to council delays
Licensing , Live Events / August 2007
UK

LICENSING Live event industry Pubs in Allerdale in North Cumbria have been forced to operate illegally because Allerdale Borough Council has failed to issue premises licences for licensed premises seemingly because of understaffing. Scores of pubs are believed to have been opening illegally for nearly two years because Under the Licensing Act 2003 pubs should have had their licences displayed behind the bar from November 24, 2005 – the first day of the Licensing Act. The council now say that it has authorised the recruitment of two members of staff for six months to shift the backlog and that “All private members’ clubs certificates have been issued, as have the biggest part of the premises licences for regulated entertainment (no alcohol), and most of the premises formerly holding off licences.” The British Beer & Pub Association added that the Council’s lack of action was inexcusable as it “it exposes licensees to threats of action because they don’t have a license,” and added that “given the expectations placed on our industry by local authorities, it’s only right that we set expectations on local authorities, and in this area they have fallen woefully short” http://www.thepublican.com/story.asp?sectioncode=7&storycode=56247&c=1

Figures show l that late night drinking changes lead to small rises in violence, injury and drink-driving but drink related injuries rise rapidly
Licensing , Live Events / August 2007
UK

LICENSING Live event industry Figures released by the Home Office as part of the British Crime Survey have provided statistics on the impact of round-the-clock licensing since its introduction in November 2005. The figures, based on reports from 30 police forces in England and Wales, showed 940,522 violent crimes (including woundings and assaults), harassments and cases of disorder and criminal damage were committed from 6pm to 6am in the year after pubs and clubs were allowed to open later. That is a negligible 0.7 per cent increase on the 933,701 recorded in the previous year. Whilst the Times reported that “ More than one million people were attacked by drunken thugs last year as the first official analysis of round-the-clock drinking revealed increasing public disorder in the early hours as Alcohol-fuelled violence rose in the first full year of relaxed licensing laws, with a particular jump in the hours after midnight as clubs and pubs stayed open later ” A Home Office official, said: “There was a lot of worry when we were changing the Licensing Act that we would be engulfed by mayhem and murder. We all know from our experience that has not happened.” But there was a…

Brecon Jazz Festival mourns the loss of street gigs
Licensing , Live Events / August 2007
UK

LICENSING Live event Industry The Brecon Jazz festival is really missing its outdoor street gigs which became impossible to stage because the town centre “isn’t licensable as a premises. About 10 events were cancelled in what looks like being an otherwise hugely successful event. Live UK Magazine issue 89

UK Copyright Tribunal endorses online rate for songwriters
Copyright , Internet , Music Publishing / August 2007
UK

COPYRIGHT Internet, music publishing The UK Copyright Tribunal has returned its decision in relation to the rate paid to songwriters and composers when their music is used in online music services. The Tribunal has endorsed a settlement agreement negotiated in September 2006 between the MCPS-PRS Alliance and the majority of the online music industry. The Tribunal concluded that this agreement should be the basis for the template for online licensing in the future. The royalty rate to composers, songwriters and music publishers when their works are exploited for online and mobile in the UK has been under scrutiny for the last two years. In June 2005, the MCPS-PRS Alliance was referred to the UK Copyright Tribunal by a consortium of music users. This was made up of: The BPI (representing over 300 record companies), The Digital Service Providers (AOL, Apple iTunes, MusicNet, Napster, RealNetworks, SonyCONNECT and Yahoo), and The Mobile Network Operators (O2, Orange, T-Mobile and Vodafone). In September 2006, the BPI withdrew from the Tribunal process by signing a settlement agreement with the Alliance which sees composers, songwriters and publishers receiving 8% of gross revenue (excluding VAT) when their music is made available for download, limited download or by…

Avril Lavigne faces new plagiarism claims
Copyright , Music Publishing / August 2007
UK
USA

COPYRIGHT Music publishing Following a lawsuit claiming Avril Lavigne stole a chunk of a 1979 Rubinoos’ song for her recent hit ‘Girlfriend’ which sold some 2.6 million copies worldwide, now some fans of Peaches are claiming Lavigne’s song ‘I Don’t Have To Try’, which appears on ‘The Best Damn Thing’, is a rip-off of the track ‘I’m The Kind Bitch’. Lavigne, who responded angrily to The Rubinoos song stealing claim, is yet to respond to these new, more informal allegations. The Lavigne-Rubinoos action is stirring up widespread interest. YouTube videos depicting the connections between the two songs have received 1.4M views: From CMU Daily see http://www.unlimitedmedia.co.uk

James Blunt faces claim against songs
Copyright , Music Publishing / August 2007
UK

COPYRIGHT Music Publishing Ex British army officer turned international pop star James Blunt is facing a claim from a Los Angeles based record producer, Lukas Burton, who has said that he co-wrote a number of Blunt’s songs including “Goodbye My Lover”, “I Really Want You”, “Don’t Lose Yourself”, “No Bravery”, “Cry” and I “Don’t Believe”. All feature on Blunt’s 14 million selling ‘Back to Bedlam’ album. Royalty payments to Blunt as a songwriter have been suspended whilst a High Court action looms between Burton and Blunt and Blunt’s publisher, EMI Music Publishing. Blunt has made it clear his case is that he wrote the songs on his own, either whilst serving as a Guards officer in Kosovo in 1999 or before that at his own or his parent’s home. The Times 28 July 2007

Does China discriminate against foreign copyrights?
Competition , Record Labels / August 2007
China
USA

COMPETITION Record labels, film & TV The United States is seeking urgent consultations with China over China’s rules on music downloading and cinema rights that The US say discriminate against foreign sound recordings and films. Hollywood studios and U.S. Internet music providers such as Apple Inc.’s iTunes store could be among the groups that suffer from “less favorable distribution opportunities” for imported films and foreign suppliers of music recordings in China, which the U.S. cited in a World Trade Organization request in July. The main issue is that music from foreign sources needs to undergo content review before being distributed in China. Chinese music doesn’t have to face that process and it is suggested that these reviews delay Chinese Internet providers and Chinese consumers from accessing foreign music. The same discrimination exists when Chinese consumers seek to download music onto mobile phones the US allege. The problem for American music providers is compounded by rules that prevent foreign companies from owning or investing in businesses that distribute music over the Internet. We are not quite sure about this one at Music Law Updates – whilst seen in the strict headlights of competition law that screening of foreign music may seem…

RIAA adds 23 more colleges to hit list but admits that law suits are not the only answer
Copyright , Internet , Record Labels / August 2007
USA

COPYRIGHT Record labels, internet The Recording Industry Association of America has added another 23 universities and colleges to its hit list of institutions whose students are targeted for pre-litigation settlement letters but has neatly avoided a row with Harvard by omitting the Ivy League University where Professor John Palfrey has been critical of the trade association’s actions. However the RIAA has acknowledged that lawsuits are “not the answer” but a “necessary part of the bigger equation”. A spokesman for the RIAA added that whilst lawsuits grabbed headlines “ what is the most important anti-piracy strategy is aggressive licensing and offering great legal alternatives. That is what our member companies obviously do and our job is to complement that, which is the most important thing to do to win over fans”. According to the latest statistics from the RIAA, there were over 7.8 million households in March 2007 in the U.S. that illegally downloaded music versus 6.9 million households in April 2003, when the litigation campaign began. Whilst litigation may seem to have had little effect it should be noted that broadband penetration in the U.S. has also more than doubled since 2003. http://www.tgdaily.com/content/view/33022/120/ http://yro.slashdot.org/article.pl?sid=07/07/23/0417223

2 year sentence not excessive R v Blower (aka Robinson) [2007] EWCA Crim 1775
Copyright , Record Labels / August 2007
UK

COPYRIGHT Record labels, film &TV The Court of Appeal (Criminal Division) has upheld the custodial sentence of 14 months on each of three trade mark charges (to be served concurrently) which were handed down to a defendant who was twice caught in possession of counterfeit CDs and DVDS, playstation discs and copying equipment for burning CDS and DVDs. Pre-sentence report stated that Blower was someone who regularly committed offences of dishonesty when tempted to do so by receiving an opportunity for easy gain; he had nine previous convictions for 13 offences, including seven of theft, one of fraud and one against property. The offences included a number of handling offences, for one of which he had received a sentence of nine months’ imprisonment. The Court of Appeal (Wilkie J and Stanley Burnton J) held that the sentence was not manifestly excessive and that the trial judges reduction in sentence of 25% for a guilty plea (which was not made at the first occasion) was proper. From the IPKat

Dykes on Bikes ride on in USA
Artists , Trade Mark / August 2007
USA

TRADE MARK Artists The Court of Appeals for the Federal Circuit in the USA has held that an application to register the mark Dykes on Bikesas a trade mark by the San Francisco Women’s Motorcycle Contingent cannot be barred from registration on mortality grounds. The application was made by a group of lesbian bikers who lead the annual San Francisco gay pride march, and was turned down twice by the US Patent Office. However the IPKat reports that the decision itself is very narrow as the mark itself was not considered. Opposition to the mark was brought by a Michael McDermott on the grounds that it is immoral or offensive who argued that by including the term ‘dykes’ was disparaging, and also that the mark was scandalous because it was associated with a pattern of illegal activity by the applicants But the Court’s the decision is based on whether the opponent had standing to oppose the mark. According to the court’s past case law, to have standing in opposition proceedings, a party must have (i) a real interest in the proceedings and (ii) reasonable basis for his belief that he would be damaged by registration. A previous finding that McDermott had a real…

Another US state legislates for ‘the real thing’
Artists , Trade Mark / August 2007
USA

TRADE MARK Artists ‘impostor’ bands who have no connection with original heritage bands now face $5,000 fines each time they pretend to be The Coasters, The Drifters or some other band they’re not. Florida is the latest state to draft the law, which has been pushed by Jon “Bowzer” Bauman, former frontman for ’60s rock revivalists Sha Na Na. Bauman who has been lobbying states for laws to prevent phonies and fakers from passing themselves off as authentic members of groups. Ten other states already have enacted the law. These fake bands mislead fans and steal income and glory from surviving members of legitimate bands, he said. “It’s heartbreaking for the people who made this music to be suffering this indignity at this point in their life when they should be recognized as pioneers.” Under the Florida law, musicians must meet strict criteria if they’re going to advertise or take the stage using the name of a famous band. The group must have at least one member from the original group and be legally entitled to that name. The law lets bands use names they already have trademarks for — even if they aren’t the original members — and it…

US appeal court overturn Rod Stewart cancellation case: Rod Stewart’s agent, lawyer win appeal
Artists , Contract , General , Live Events / August 2007
USA

CONTRACT Live event industry, artists ARTICLE LINK : by Susan Butler The California Court of Appeals has overturned the decision of the Los Angeles Superior Court who awarded £$1.6 million in damages from the cancellation of Rod Stewart shows against Stewart’s agent and lawyer. However the appellate court affirmed that Stewart must re-pay $780,000 paid to him as deposits for a number of cancelled South American shows and $472,000 in legal fees to the promoters. http://www.billboard.biz/bbbiz/content_display/industry/e3i9aaa6659e3c485e76d40847f87a5bf38

European Commission finally reopens Sony BMG review
Competition , Record Labels / July 2007
EU

COMPETITION LAW Record labels The European Commission has reopened its antitrust probe into the merger of Sony’s recorded music division and Bertelsmann’s recorded music divisions which created Sony BMG – the second largest music company in the world. The commission halted its review of the merger in March after both companies failed to produce crucial documentation on their activity in the European market. “The file is finally complete and the probe has been re-launched,” said a Commission spokesman. A new deadline has been set, with a ruling expected by 10th October. The delay has had significant impact on the industry – whilst the music publishing arms of Universal and BMG have been allowed to merge (after a significant shedding of certain catalogues by BMG including Zomba) the delay is not helpful for Warner Music Group which still looks like it would like to buy EMI – and clearly EMI is up for sale and on the verge of signing itself away to private equity firm Terra Firma. The resurfacing of merger issues could hinder any last-minute bids by Warner for the major. www.forbes.com blogs.reuters.com

Swedish file sharer’s fine upheld
Copyright , Internet , Record Labels / July 2007
Sweden

COPYRIGHT Record labels, internet The Court of Appeal in Sweden has upheld a 20,000 kroner fine imposed on a 45-year-old man from Borås by his local District Court for illegally distributing music on the internet. The Court of Appeal upheld the fine imposed on the man for uploading four copyright-infringing tracks using the DirectConnect file-sharing network. The sentence related to only four songs and the fine imposed of SEK 20,000 (US$2,831) means that it cost the perpetrator SEK 5,000 (US$708) per song. In addition, the injured party has the opportunity to seek damages. www.ifpi.org

Australia – High Court confirms deep-linking is illegal
Copyright , Internet / July 2007
Australia

COPYRIGHT Internet The High Court of Australia today refused to grant leave to hear an appeal by Stephen Cooper, the operator of the MP3s4free.net website and his Internet Service Provider who had earlier been found guilty of copyright infringement. Mr Cooper’s website was described in an earlier Federal Court decision as a “carefully structured and highly organised site” which included hyperlinks to facilitate the downloading of infringing copies of recorded music. The High Court rejected Mr Cooper’s application stating that it had insufficient prospects of success to warrant a grant of special leave. The refusal reinforces the decision of the trial judge and Full Federal Court who held that Mr Cooper had authorised copyright infringement. The Full Court had also found that the ISP, E-Talk/ Com-Cen, and its director, Liam Bal – labelled the “controlling mind” – had failed to take reasonable steps to prevent copyright infringement and instead had sought to achieve a “commercial advantage” from advertising on MP3s4free.net. Cooper, E-Talk/ Com-Cen and Bal have been ordered to pay the costs of the record companies for both the original proceedings, the appeal and the special leave application in the High Court. www.ifpi.org

UK politicians see need to ‘extend the term’
Copyright , Record Labels / July 2007
UK

COPYRIGHT Record labels A UK Parliamentary Committee has come out in support of the UKL record label’s position that copyright protection for sound recordings must be extended beyond 50 years to prevent veteran musicians like Cliff Richard and Paul McCartney from losing royalties in later life. The duration of copyright in sound recordings under the Copyright Designs and Patents Act 1988 stands at 50 years. Songwriters (for both music and lyrics) are protected for 75 yeasr from the death of the last surviving author and the BPI have pointed out that the copyright protection for recoridngs in the United States is 95 years from release. In Australia it is 70 years. However the Gowers Review of Intellectual Property, commissioned by Chancellor of the Exchequer Gordon Brown and released in December, rejected calls to extend the protection. Andrew Gowers, who headed the review, said that longer copyright terms would increase the costs for consumers and companies that play music. The parliamentary report argues that Gowers examined the situation from a purely economic point of view and had not considered the moral rights of artists to own and control their intellectual property. The committee called on the government to lobby the European…

UK recorded music industry awarded substantial damages against CD Wow
Copyright , Record Labels / July 2007
UK

COPYRIGHT Record labels The High Court has ruled that that web based ‘Etailer’ CD Wow must pay significant compensation for illegal imports into the UK and the British Phonographic Industry, representing the major record labels, has obtained freezing order over CD Wow’s Hong Kong assets. The Hong Kong based business had been illegally importing CDs and music DVDs into the UK from outside the EEA and the damages, estimated to be £40 million, is the largest damages award ever made in favour of the BPI. BPI General Counsel Roz Groome, who spearheaded the industry’s six-year case said: “CD Wow have consistently broken the law, ignored High Court rulings, and have continued to trade illegally throughout. Clearly the courts have lost patience with this rogue retailer and the message is clear; any company seeking to engage in this type of illegal trade will face the toughest sanctions. The BPI will use this landmark ruling to take firm action against any other retailers that import illegally.” The sum awarded to the record industry represents damages and interest for the infringements of copyright that the retailer has caused since January 2004. This award follows the court’s finding in March 2007 that CD Wow…

US 9 th Circuit reverses the District Court’s decision in Google v Perfect 10
Copyright / July 2007
USA

COPYRIGHT All areas ARTICLE LINK: By Edward F. Maluf and Sheila M. Pierce One of many functions performed by Google’s search engine is the delivery of thumb-nail sized images rather than text in response to a query. Perfect 10, an adult entertainment publisher, sued Google and Amazon.com, Inc. for copyright infringement, alleging that Google retrieved Perfect 10’s copyrighted images and stored and/or displayed them on Google’s server. Perfect 10 objected to Google’s practice because Perfect 10 was exploiting its copyrighted images by selling them for download to mobile phones, where the images appeared in a thumbnail-sized format identical or nearly identical to the version appearing after a search on the Google service. Perfect 10 filed a motion seeking injunctive relief, asking the court to order Google and Amazon to stop displaying thumbnail images of Perfect 10 models in its image search results and to stop users from linking directly to third-party sites that host and serve infringing full-size images. The District Court upheld Perfect 10s claim for copyright infringement because Google stored Perfect 10’s images on its own servers. However the District Court did though it unlikely that Google would be found either contributorily or vicariously liable for any use…

Foley says relax
Artists , Trade Mark / July 2007
UK

TRADE MARK Artists Thatcher’s children will be familiar with the band Frankie Goes to Hollywood. The band had a number of chart hits. The lead singer was Holly Johnson, although the band also had (at various times) four other members. Johnson left to pursue a solo career in 1987, upon which the band ceased performing. However, they reformed, minus Johnson and with a new lead vocalist, for the ‘Bands Reunited’ TV programme in 2003. In April 2004, Johnson applied to register Frankie Goes to Hollywood as a trade mark. The remaining band members opposed the application, citing an earlier right protected by passing off and bad faith. Mr Hearing Officer Foley allowed the opposition on both grounds. The key issue for s.5(4) (passing off) was whether the goodwill gravitated to Johnson alone, as the lead singer, or whether it could be attributed to the band as a whole. It was irrelevant that Johnson had thought of the name, and it was likewise irrelevant that it was somewhat creative. The legal arrangements in force meant that, at the time Johnson left the band, it existed as a partnership at will, meaning that any goodwill attached to the partnership, rather than its individual…

Rockbass not valid trade mark
Artists , Trade Mark / July 2007
EU

TRADE MARK Artists ARTICLE LINK From The IP Kat Advocate General Eleanor Sharpston has rendered her opinion in case C-301/05  Hans-Peter Wilfer , this being an appeal to the European Court of Justice, Luxembourg, from a decision of the Court of First Instance (CFI) involving Wilfer’s application to register Rockbass as a Community trade mark for guitars, technical sound equipment, amplifiers and the like. The application was rejected on the basis that the word was sufficiently descriptive to be incapable of serving as a trade mark; the Board of Appeal and the CFI agree. http://ipkitten.blogspot.com/2007/06/rockbass-heads-for-further-trouble-in.htm

The Crimea decide to give away their new album!
Copyright , Record Labels / June 2007
UK

COPYRIGHT Record labels Successful indie popsters The Crimea have decided that they will give away download copies of their second album, Secrets of the Witching Hour. The band, who were previously signed to Warners and sold a respectable 35,000 copies of their first album Tragedy Rocks and charted with a UK top 40 single, have decided that they will not bother to fight music piracy, peer to peer file swapping or worry about DRM protection, gambling on the fact that building a big fan base through giving away recorded music will mean the band will earn more long term from live work, merchandising, music publishing and possibly endorsements. The move will be keenly watched by the recording industry as it struggles to find ways of monetising copyrights in sound recordings. It is interesting to note that on the same day this story came out, the PPL (Phonographic Performance Limited) had sent British MP’s a free CD to lobby for extended copyright term for sound recordings – a campaign which has so far fallen on deaf ears. But surely the ‘Extend The Term’ campaign is as tired as it sounds. Recently Andrew Gowers made it clear that he felt that a fifty year term for…

Launchcast service is a radio service
Copyright , Internet / June 2007
USA

COPYRIGHT Internet Last month a US federal judge, William Connor, made an important preliminary ruling that performance royalties were not payable on music downloads (although it should be added that mechanical royalties would be). Now a federal court in New York has ruled that Yahoo!’s Launchcast service is not an interactive service and is simply a radio station. The dispute was a conclusion to a long running dispute between the web company and BMG. CMU Daily reports that Launchcast was one of the early online personalised radio services where users provide information about the kind of music they like, and rate tracks as they play, from which the service provides them with a back to back music service hopefully geared towards their music tastes. Crucially CMU Daily say, if the user does not like they can skip it – the number of skips allowed each month dependent on the kind of subscription they have. Despite the personalisation and song skipping, Launch’s owners have always claimed the service was simply an online radio station, and run it in the US under a webcasting licence secured through SoundExchange, the collecting society that coordinates those blanket music licences for online services that the…

House of Lords finally decide Douglas & Others v. Hello! Ltd & Others [2007] UKHL 21
Artists , Privacy / June 2007
UK

PRIVACY / CONFIDENCE Artists From David Pearce at the wonderful the IPKat blog The House of Lords decision in the case of Douglas v Hello! has resulted in a split (some might say fractured) decision. The Douglases and OK! have won on the issue of breach of confidence, with Lord Hoffmann taking the majority 3:2 view on the issue, restoring the earlier High Court judgment, saying: “In my opinion Lindsay J was right. The point of which one should never lose sight is that OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. That was quite clear. Unless there is some conceptual or policy reason why they should not have the benefit of that obligation, I cannot see why they were not entitled to enforce it. And in my opinion there are no such reasons. Provided that one keeps one’s eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward It is first necessary to avoid being distracted by the concepts of privacy and personal information. In recent years, English law has adapted the…

New laws prevent sale of second hand CDs in US
Copyright , Record Labels / June 2007
USA

COPYRIGHT Record labels New pawn shop laws are springing up across the USA that will make selling used CDs at local record shops extremely complicated – the shop will need personal ID as well as having to fingerprint potential sellers – and then the shop cannot sell the CDs for thirty (30) days. The legislation in Florida, Utah and soon in Wisconsin and Rhode island is supposed to prevent the sale of counterfeit and stolen CDs but has provoked a wave of consumer outrage. For more see http://arstechnica.com/news.ars/post/20070507-record-shops-used-cds-ihre-papieren-bitte.html

IFPI announce two new cross border licensing schemes
Copyright , Internet / June 2007
EU

COPYRIGHT Internet, broadcasting Various online music services and broadcasting organisations should find it easier from today to gain licenses to stream music across several territories, thanks to an arrangement put in place between IFPI – which represents the recording industry worldwide – and record company collecting societies. Two new licensing agreements will create the framework for collective licensing of producers’ rights for certain streaming and podcast services across several markets. In practice, the participating collecting societies will be able to license rights in each others’ territories and repertoire for certain internet and mobile streaming services and for the making available of previously broadcast programmes such as streams or podcasts.  Broadcasters and online music services will also continue to be able to approach the record companies directly for a license for these uses. Until now, obtaining cross-border online rights licenses for these services has involved dealing with each territory separately or approaching the right holders directly.  This new framework will offer users the alternative to obtain a license for broad repertoire and for all the participating territories from a single collecting society.  Online music services and broadcasters established within the European Economic Area will be able to approach any European society…

allofMP3 scheme voucher scheme scuppered in UK
Copyright , Internet , Record Labels / June 2007
UK

COPYRIGHT  Internet, record labels  UK Police have raided and shut down an online voucher system allegedly used by the Russian music download website allofmp3.com to try and sidestep the removal of legitimate payment services in the UK and Europe – Visaand Mastercard withdrew payment facilities for the site some time ago. The action under the Fraud Act 2006 follows a pan-European investigation, conducted by global recording industry body IFPIand UK record companies’ association the BPI, which led to the arrest of a 25 year-old male in Bow, London. The individual was allegedly the UK-based European agent for allofmp3.com, facilitating the sale of digital downloads by advertising and selling vouchers through auction sites such as eBay and the website allofmp3vouchers.co.uk. That website has now been taken down from the internet. The vouchers contained a code that allowed UK and European consumers to access and download music illegally from the allofmp3.com website. Charging £10 per voucher, the suspect was believed to be taking payment from European customers and transferring the cash into various offshore accounts operated by the site’s Russian owners.  Metropolitan Police officers seized computer equipment and paperwork for further investigation.

New early day motion puts sound recording copyright term back in debate
Copyright , Record Labels / June 2007
UK

COPYRIGHT Record labels Despite the Gowers review of IP which was firmly against any extension in the fifty year term for copyright in sound recordings (quite the reverse, it seems Gowers actually considered suggesting a reduction), the record industry continue to push for copyright extension for sound recordings and 70 UK Members of Parliament have put their names to a early day motion that reads “That this House notes that 50 years ago Lonnie Donegan’s Cumberland Gap was No. 1 in the charts for five weeks; is concerned that due to the present law governing payments for use of audio recordings this track will go out of copyright at the end of 2007 and that the family of Lonnie Donegan, who would have been 76 on 29th April, and the other performers, Denny Wright, John Nicholls and Mickey Ashman, and their company Pye Records, which produced this unique recording, will no longer receive any royalties, nor have any say in how this recording is used; is further concerned that thousands of musicians and their record companies will lose out over the next few years because of the shorter copyright term for sound recordings relative to that granted to almost all…

AIM and UK Podcast Association agree UK’s First Full Track Multi-Label Licence
Copyright , Record Labels / June 2007
UK

COPYRIGHT Record labels The UK Podcasters Association announced that they have come to an agreement with AIM the UK-based Association of Independent Music which allows their members preferential access to AIM’s podcast licence. For the first time, UK podcasters have unlimited access to full length music tracks from top artists such as The White Stripes, Paul Weller, Bloc Party, Echo and the Bunnymen, Dizzee Rascal, Mylo, Basement Jaxx, Editors, Stereophonics, Coldcut to use in their podcasts. This gives UK Podcasters a unique opportunity to re-write the rules for music podcasting, opening the door for podcasters to move legitimately into traditional broadcast territory, which will hasten the shift towards media on demand. The AIM podcast licence covers over 30,000 tracks licensed by the UK independent music industry and includes  labels such as V2, XL Recordings, Studio !K7, Cooking Vinyl and Beggars Group. Unlike other podcast licences, the AIM podcast licence ensures that the labels and the artists will be paid as a result of podcasters using their music, and allows for the use of the full track. Radio stations typically remove music from their podcasts. www.ukpa.info www.musicindie.com

Trade marks vs free speech
Trade Mark / June 2007
UK

TRADE MARK All areas ARTICLE LINK:  Our feline friend the IPKat brings news of a tricky little case involving the interface between trade mark dilution and free speech. In Miss World Ltd v Channel 4, a judgment delivered on 16 April, Pumfrey J ruled on the conditions under which interim relief should be refused in a trade mark case on free speech grounds under s.12 of the Human Rights Act. http://ipkitten.blogspot.com/2007/05/free-speech-v-tms-high-court-approach.html

Universal / BMG Music tie up approved by European Regulators as Warners look at EMI
EU

COMPETITION Music publishing, Record labels Vivendi/Universal and BMG Music Publishing have finally had their merger given the green light by the European Commission. The E1.63B merger was approved on the grounds that Rondor UK, Zomba UK, BBC Music and 19 Music were excluded from the merger. Immediately after the announcement, independent labels association Impala was quick to point out that it reserves the right to seek a reversal of the decision, and said it will follow the merger with great interest – no doubt Warners, who are hovering over EMI, will do the same! The ECsaid in a statement “The proposed merger, as initially notified, raised serious doubts as regards adverse effects on competition in the market for music publishing rights for online applications. However, the Commission’s investigation found that these concerns would be removed by the remedies package proposed by the parties concerning the divestiture of a number of publishing catalogues”. In fact EMI Group has agreed to an offer by private equity firm Terra Firma for £2.4B, subject to approval by the firm’s shareholders. The board of directors at EMI intend to recommend unanimously that EMI shareholders should accept the offer. EMI’s shares jumped 10% on the news – the offer vaues…

Custodial sentences for family counterfeiting business
Copyright , Record Labels / May 2007
UK

COPYRIGHT Record industry, film industry According to the British Phonographic Industry (BPI), counterfeiting costs the music industry £165m a year in lost sales as part of a total loss to piracy , including illegal downloads and file swapping, of something approaching half a million pounds in the UK and so it’s no surprise that the BPI has welcomed prison sentences for the ringleaders of what was one of Britain’s biggest and most extensive counterfeiting gangs. Sentencing after a BPI private prosecution at Durham Crown Court, His Honour Judge Hewitt, said “It is clear that this was a substantial operation, on a much greater scale than just friends and family. It caused an incalculable loss to the industry and would have continued had the industry not taken this action.” After a two week trial, ringleader James Glen Cowan, 41, was yesterday jailed for 2 years for conspiracy to defraud, tax evasion and benefit fraud. His wife, Ann Cowan, 38 was found guilty of conspiracy to defraud, benefit fraud (up to £30,000) and attempting to pervert the course of justice. She received a 9 month sentence suspended for 12 months and also has to spend 150 hours working unpaid in the community….

The Impact of the Groskster decision on file sharing
Copyright , Internet / May 2007
USA

COPYRIGHT Internet ARTICLE LINK: By Odia Kagan As the law suits against YouTube mount up (led by Viacom’s billion odd dollar claim) this article is a timely reminder of the Supreme Court decision in MGM v Grokster and the decision’s effect on file sharing in the US. The Author (a lawyer qualified in Israel, the USA and the UK) also looks at the position of illegal file sharing in Israel. http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=1715 also see the excellent article ‘Peer to Peer Music Sharing since MGM v Grokster [2005]’http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=0873BD96-349E-479B-B667-F0928B35B5C7

Are Songwriters double dipping? By Steve Gordon
USA

COPYRIGHT Internet, music publishing ARTICLE LINK –  Should songwriters get paid for a public performance when you download a song? Well US publishing bodies ASCAP and BMI have brought a case in New York asking for this right http://www.theregister.co.uk/2007/04/13/steve_gordon_performance_royalties/ But a summary Judgement by Federal Judge William Connor has left ASCAP reeling after he ruled that the act of downloading a music file does not constitute a public performance of a song, stressing that “a person must be able to perceive the song as it is being transmitted” for it to be considered a performance. Digital music services AOL, RealNetworks and Yahoo! won the summary judgment after objecting to proposals put forward by ASCAP to include a performance fee for downloads. As a result of the judgment the services are not required to pay royalties for downloads to the performing rights organisation. The case goes forward to trial on 21st May.

Trespass – An Ancient Legal Doctrine Gains Traction In Cyberspace
Internet , Media / May 2007
EU
UK
USA

MEDIA LAW Internet ARTICLE LINK By Eric Sinrod Fed up with commercial spammers invading your inbox, unauthorized deep linking to your website, spyware on your PC or finding out that someone is using your server to send out spam – well here Eric Sinrod explains that the ancient legal doctrine of trespass to chattels which establishes liability when one person dispossesses or causes physical harm to the chattel (private property) of another person can be useful in Cyberspace. As Information technology development continues to advance at an astonishing pace, and with the law evolving at a much slower rate, traditional legal theories have had to be dusted off to grapple with Internet disputes and the best example is the application by the courts of the trespass to chattels notion to the new world of the Internet. Cases reviewed include AOL v IMS, AOL v LCGM,Compuserve v. Cyber Promotions Kerrins v. Intermix Media and Ticketmaster v. Tickets.com http://technology.findlaw.com/articles/00006/010761.html See the Article Internet Trespass:  Measuring and Controlling Internet-Distributed Advertiser-Funded Content Music Law Updates April 2006 and a review of Kerrins v Intermix Media Music Law Updates March 2006

Ticket Touting – the Great Rock & Roll Swindle
UK

HEALTH & SAFETY / LICENSING Live Event Industry ARTICLE LINK –  “The city is wrapped in spring smog as a queue snakes its way around the Forum in Kentish Town. Even here in grubby north London, at 7pm on a weekday evening, with the modest attraction being the indie jangle of the Shins, every ticket has been sold. Except, of course, they haven’t. Easy to spot in the forest of skinny jeans are the oversized sports jackets and white trainers of the ticket touts, selling and reselling for a tasty profit ……. A useful article on touts – old style and the new bedroom tout using eBay and other online sites to sell tickets at often vast profits. ….” See the full article at http://music.guardian.co.uk/rock/story/0,,2050841,00.html see alsohttp://www.radionz.co.nz/news/latest/200704270750/music_promoter_asks_to_be_covered_by_anti-scalping_law

Beach Boys lose case to reclaim memorabilia
Image Rights , Trade Mark / May 2007
USA

TRADE MARK / IMAGE RIGHTS Merchandising Former Rock ‘n Roll musician Roy A. Sciacca has won a victory against The Beach Boys’ company, Brother Records, when Judge Manuel L. Real of the United State District Court for the Central District of California turned down a $60 million lawsuit. The lawsuit accused Sciacca of stealing a treasure trove of original Beach Boys lyric sheets, sound recordings, videotapes, photographs and other items from a warehouse in 1994. Sciacca is an avid collector of memorabilia. Following the $1.25 million sale in 2005 John Lennon hand written lyrics, Sciacca contacted auctioneer CooperOwen’s Music Legends to arrange the sale of some of The Beach Boys’ original lyric sheets and other items he had purchased at a warehouse sale in the 1980s. This alerted Brother Records who filed the lawsuit claiming, among other things, copyright, trademark, and right of publicity infringement. Judge Real ruled that there was no evidence to suggest that Roy Sciacca and warehouse owner Allen Gaba had stolen the memorabilia and Sciacca is now free to sell the items. See http://www.sys-con.com/read/359811.htm

US webcasters fail to have new royalty rate overturned
Copyright , Internet / May 2007
USA

COPYRIGHT Internet A panel of copyright judges has dismissed US webcasters’ appeal to re-consider the new online music royalty rates which were set last month by the US Copyright Royalty Board. The CRB controls the royalty rates for US music services. The only leniency offered to the webcasters was a decision to put off the proposed change in the way fees are calculated – from an ‘average listening hours’ system to a ‘per-song, per-listener’ system – for a year. The change in the will itself also increase the amount of royalties webcasters will have to pay for music and sound recording rights. The webcasters can now appeal the matter to the US Court Of Appeals for the District Of Columbia Circuit, but that this will take at least a year. CMU Daily See Law Updates April 2007 and http://www.dailytech.com/article.aspx?newsid=6361&red=y andhttp://www.betanews.com/article/Record_Industry_Proposes_Huge_Streaming_Royalty_Fees/1173216492

RIAA v Santangelo rolls on
USA

COPYRIGHT Internet, record labels The long running litigation in the case(s) between the Recording Industry Association of America and various members of the Santangelo family rolls. The action stated with a suit against Patricia Santangelo, the American mother accused of illegally sharing music via her PC. Launched in 2005 the case has been problematic for the RIAA from almost from the word go because it quickly became apparent Santangelo herself had clearly not shared any music, and attempts by the industry association to suggest the mother should and could be held liable for any filesharing committed by her children or their friends on her home PC were generally rejected by the courts. The RIAA then dropped the case to concentrate of Ms Santangeo’s children and did obtain a judgment in default against Patricia’s daughter Michelle. Patricia’s son, teenager Robert, is still fighting his case. But in a new the federal judge considering that application to dismiss the case against Patricia has only agreed to dismiss the case ‘with prejudice’ meaning that the RIAA can not now launch future proceedings against Patricia and they may be open to a claim for Patricia’s legal costs in defending the action – something another…

MPS v Murphy: The legality of pubs using foreign satellite signal goes to the High Court
Copyright / May 2007
UK

COPYRIGHT Television Karen Murphy was convicted under s297(1) of the Copyright Designs & Patents Act 1988 for showing Premiere League football matches in her pub using a legitimate Greek satellite service, Nova The conviction was upheld at Portsmouth Crown Court but Murphy has now lodged an appeal with the High Court. The Crown Court in MPS v Murphy came to a very different decision to the Crown Court in FACT v Gannon on the same basic facts meaning it will be up to the High Court to decide whether or not the section in question is relevant for prosecution. The case has also thrown up the interesting fact that whilst Sky is taking action against UK landlords and licensees using the Nova signal to protect its UK market, Sky’s ‘UK’ signal is of course picked in numerous pubs and bars in Spain, Portugal and France and used in competition to official broadcasters in those territories who have licensed English Premiership football for their countries from the FAPL (the UK premiership rights licensing body). So in a world of ‘Television Without Frontiers’ the FAPL may need to look at how it licences its football matches in the future. http://www.morningadvertiser.co.uk/news_detail.aspx?articleid=29946&categoryid=9001 For the views of the Association of European…

Busted bust up still a dust up
Artists , Contract / May 2007
UK

CONTRACT Artists The Universal Music Group has been brought the legal action involving former UK chart topping boy band Busted which has been brought by two former members Ki Fitzgerald and Owen Doyle who were axed before the band became successful. The label is added as new matters include allegation that the axed members’ vocals appeared in on the band’s 2002 album Busted released by the major. Fitzgerald and Doyle have already claimed that they were integral in the creation of the Busted franchise, coming up with the name and co-writing some of the band’s early hits. They claim they were unfairly cut out of the equation by manager Richard Rashman and that Rashman failed to fulfill his contractual commitments as a manager to protect their interests by making them sign agreements on their departure that greatly favoured Rashman and remaining band members, James Bourne and Matt Willis. Fitzgerald and Doyle’s 2005 legal action seeks a cut of the royalties from the band’s early songs and trademark use. Rashman, Bourne and Willis are named as defendants. The claimants are also looking at the band’s US trade mark registration which is allegedly held in Rashman’s personal name. The High Court has ordered evidence…

Yahoo! China must remove links to illegal websites
Copyright , Internet / May 2007
China

COPYRIGHT Internet A Beijing Court has confirmed that Yahoo! China has clear responsibility for removing all links to websites hosting infringing download tacks tracks on its service.  Yahoo’s China website, operated by Alibaba.com, has been ordered to pay the compensation of 210,000 yuan ($27,000) for copyright violations and must delete links to 229 songs on nonaffiliated sites by the Beijing Second Intermediate People’s Court. About 85 percent of recordings in China are illegal, with sales of pirated music worth $410 million in 2005, according to the International Federation of the Phonographic Industry, the industry group that brought the claim. EMI, Warner Music Group and nine other record companies sued Yahoo China in March claims the service violated copyrights by allowing users of its search engine to find links to pirated music. The music industry had previously lost a similar case in China (although on first appeal) against Baidu – a leading Chinese links/search site. That case is being appealed again and the IFPI are obviously hoping that the Yahoo! case, decided under new Chinese regulations, will prove a valuable precedent in the Baidu appeal. www.ifpi.org

AIM to challenge suggested private copying right
Copyright , Record Labels / May 2007
UK

COPYRIGHT Record labels The proposals in the Gower’s report on IP that the UK’s copyright should be changed to allow for a private copying rights are being challenged by AIM, the association of independent labels who say that such a move could ‘open the floodgates’ to other copyright infringements and would damage artists, labels and music publishers. Whilst accepting the practice is widespread, AIM is lobbying the UK Government against any change in the law (which only allows copying of TV and radio programmes for ‘time shifting’ and say they will take the matter to the European Commission if necessary. http://www.digitalspy.co.uk/music/a45651/indie-labels-warn-over-copyright-change.html

Joyce Hatto mystery solved
Copyright , Record Labels / April 2007
UK

COPYRIGHT  Record labels Here is a new twist in the Joyce Hatto story (which we missed last month!). Until recently Hatto (who died in 2006) had been hailed as one of Britain’s foremost classical pianists although she had retired from the concert stage some thirty years ago. But for years rumours had swirled around questions of how she could maintain such productivity and quality in her sound recordings. Her CDs were released by her husband, William Barrington Coupe, on his own label Concert Artist. Then allegations began to surface that some of the CDs were copies – and here is an example of another new development in the digital age (its not just record label woes and consumer freedoms etc). One positive advantage of new digital technology is the ease of comparing recordings. One listener had put Hatto’s recording of Liszt’s 12 “Transcendental Études” into his computer and lo and behold – his iTunes software identified the disc not as Hatto’s recording but as one by Laszlo Simon on the BIS label, originally issued in 1993 (iTunes uses a database called CDDB to identify discs using information about the number and length of the tracks). As rumours abounded, Gramaphone magazine told the ‘conspiracy…

Patent decision may be critical to download market
Internet , Patents / April 2007
USA

PATENT LAW  Internet A federal jury in the United States has decided that Microsoft infringed on two patents used in the conversion of music to digital MP3 files and has ordered that the computer company must pay $1.52 billion in damages to France’s Alcatel-Lucent SA. The two patents cover the encoding and decoding of audio into the digital MP3 format. Microsoft’s defence was that it had already paid for and licensed the technology (to the tune of $16 million) from Germany-based Fraunhofer Institute, which licenses it to hundreds of companies, including Apple Inc. and RealNetworks Inc. The decision was the first of six cases that will be heard in the U.S. District Court in San Diego. All stem from claims made in 2003 by Lucent Technologies against PC makers Gateway Inc. and Dell Inc. for technology developed by Bell Labs, its research arm. The next case, which relates to speech coding, is set to go to trial in March or April. Other areas in dispute include video coding on Microsoft’s Xbox game console and Windows user interface. http://www.mercurynews.com/mld/mercurynews/business/technology/16761467.htm

MEPs want EU law for online music
EU

COPYRIGHT Internet, music publishing ARTICLE LINK:  The European parliament has criticised its own executive for prioritising competition between collection societies – rather than protecting cultural integrity in member states. Song-writers’ and composers’ rights are currently controlled by Collective Rights Management societies (CRMs) which grant national distribution licences for record labels and online shops and collect royalties of a few cents per download. The artists are most often represented by their national CRM society – some of which date back to the 1850s – and in the other EU countries by virtue of reciprocal bilateral agreements that allow, say, a Spanish society to licence Dutch music in Spain while channeling cash from Spanish royalties back to the Netherlands. But with the EU digital music sector set to become a €3.9 billion a year industry by 2011, the major record labels are pushing Brussels to break-open the rights monopolies system. The European Commission therefore proposed in its recommendation to open up the copyright market to competition allowing those interested in trading music on the web to negotiate with one CRM instead of each individual CRM in the 27 different EU member states. But MEPs are saying that although competition is good, to…

Queen protect mark against new application
Artists , Trade Mark / April 2007
UK

TRADE MARK Artists, merchandisng Ilanah Simons from the purrfect IPKat webblog reports a victory for the rock group Queen before the Trade Marks Registry. Julia Ruhnke made a Madrid Protocol application to register the term QUEEN FOR A DAY for clothing. The surviving members of the rock group Queen opposed the application based, inter alia, on their registration of the word QUEEN for the same goods. Since the goods were identical, the issue came down to whether there was a likelihood of confusion taking the similarity between the marks into account. Yes, there was, said Mr Hearing Officer Reynolds. Although the number of words in the two marks was different, there was a strong conceptual link between them. QUEEN, when used on clothing, would be viewed as referring to the concept of a female monarch, which would be fanciful in relation to clothing. QUEEN FOR A DAY contained a conceptual difference, as it suggested how the wearer would feel when donning the clothes but (hold on to your hats folks), this conceptual difference actually enhanced the degree of similarity between the two marks because it reinforced the connection with royalty by suggesting that the lucky lady wearer would feel like a…

Did he? He did, didn’t he? Richard Dearlove (trading and professionally known as “Diddy”) v Sean Combs (trading and professionally known as “Sean ‘Puffy’ Combs”, Puffy” and “P. Diddy”) [2007]
Artists , Trade Mark / April 2007
UK
USA

TRADE MARK Artists EWHC 375 (Ch). Sean Combs had already been ordered to stop using the name ’Diddy’ in previous litigation which saw him pay over £10,000 in damages to British DH Richard ‘Diddy’ Dearlove as well as £100,000 on costs. Now Mr Justice Kitchen has ordered Mr Combs to drop a lyric in which he calls himself “Diddy” when he performs at Wembley Arena. In a High Court ruling, Mr Justice Kitchin said that Mr Combs had breached the agreement which resulted from the previous litigation. That agreement provided, inter alia, that Combs would refrain from advertising, offering or providing, or causing/procuring others to advertise, offer or provide any goods and services not being the Claimant’s goods and services as a remixer, producer, songwriter, recording artist and DJ under or with reference to the word “Diddy . Kitchen J agreed that Combs had clearly advertised himself as “Diddy” in a song called The Future on his latest album Press Play. The judge ruled: “The second verse refers to Mr Combs as ‘Diddy’ as he invites the listener to ‘mainline this new Diddy heroin’. Mr Combs expressly refers to iTunes and asks the listener to ‘Download me in every resident’. He refers to his CD…

Heritage band name dispute drifts towards the High Court
Artists , Contract , Trade Mark / April 2007
UK

TRADEMARK / CONTRACT Artists The Drifters are one of the longest serving groups in the history of popular music – and hits like Under The Broadwalk., Saturday Night at The Movies and Save The Last Dance for Me have made them pretty influential as well. But now members in the current line up – who are amongst the fifty or so singers who have been in the Drifters, face a legal action from the wife of the band’s ex-manager who claims she owns the right to the name The Drifters. Faye Treadwell claims she is the legal owner of the name – which her husband brought from the original band in 1954 – and that he ran the band as a business, employing various signers to tour and record as The Drifters. Ms Treadwell is bringing an action in the UK against the band known as the Drifters (who themselves have lodged UK and European CTM trade mark applications for the name) and in the USA against a number of ‘Drifters’. A number of states in the USA have already passed laws protecting ‘heritage acts’ saying that at least one original member must be still involved. Recent band name disputes involving original members included…