Hives have a ticking time bomb in song suit
Copyright , Music Publishing / December 2008
USA

COPYRIGHT Music Publishing The Hives are being sued by Jason Shapiro, songwriter for the bands The Roofies, Three Way and Celebrity Skin, for allegedly stealing a riff and vocal melody for their song ‘Tick Tick Boom’. Shapiro has recorded the song both with The Roofies (in 1996) and Three Way (in 2002) and only discovered the supposed similarity when the Hives song was used on the trailer for recent movie, ‘Get Smart’. Shapiro says that after consulting a musicologist he was left in no doubt that his song had been the source material. Shapiro told LA Weekly: “I absolutely love The Hives and don’t feel great about suing a band I love. But I also feel credit is due where it is due if you borrow a riff. [The musicologist] said the part in question – the main riff and vocal melody – was very similar and its uniqueness led him to believe it wasn’t just a coincidence. He also runs it through a background test seeing if any charts from previous songs are close and we were clear on that front. CMU Daily 31 October 2008

Idol faces lawsuit over record deal
Artists , Contract / December 2008
USA

CONTRACT Television, artists American Idol bosses are threatening to take legal action against a former contestant, Josiah Leming, because he is planning to release an album, but not through the TV show’s associate label, SonyBMG. Leming, who was homeless when he entered the talent contest, made it through the audition process but not to the final 24 contestants who appear in the main show. However, all those who are selected to appear in the show sign a contract which only allows them to release music through SonyBMG. Leming’s debut album is due to be released in January by Warner Music, which has prompted Idol chiefs to send him a letter threatening to sue if he goes ahead with the release. A spokesperson for the singer told the New York Post: “Josiah was the only Idol contestant ever to get a record deal who didn’t make the top 24, and one of only four contestants to get a deal this year. He has personal reasons for getting his music out, threat or not. His mother has terminal cancer, and nothing is going to stop him from getting his music out while she is alive to share it. His album on Warner…

Krafwerk sample found not to infringe
Copyright , Music Publishing / December 2008
Germany

COPYRIGHT Music Publishing Germany ‘s highest civil court has held that sampling musical notes does not always, in principle, violate copyright, asking that the decision of a lower Hamburg court be reconsidered. The lower court had held that German rap producer Moses Pelham, who used an uncleared two-second sample from Kraftwerk’s 1977 track ‘Metal On Metal’ in the rhythm sequence of the 1997 Sabrina Setlur song ‘Nur Mir’ had infringed the copyright in the song (rather than the sound recording). The new ruling finds that whilst sampling a melody does constitute infringement, the use of ‘notes’ in a recording in such a way that the original melody is not identifiable – which was arguably the case in ‘Nur Mir’ – does not infringe. The higher court decision means the Hamburg court will now have to reconsider the Kraftwerk case again. This decision is similar to the conclusion reached by the US courts in Newton v Diamond (2003) where it was held that the Beastie Boys had not infringed the copyright in the melody of a composition by James Newton as the use was not substantial. As the Beastie Boys had secured a licence to use the sound recording, no action could be brought. http://news.yahoo.com/s/ap/20081120/ap_en_mu/music_kraftwerk_ruling;_ylt=Ap3QE3xrQY2BjMA5V9kDR_SVEhkF http://www.rollingstone.com/rockdaily/index.php/2008/11/21/kraftwerk-copyright-infringement-case-means-victory-for-sampling/

Law schools take on the major labels in downloading saga
Copyright , Internet / December 2008
USA

COPYRIGHT Internet It may not be good for business, but the US record labels are providing a heck of a legal education for numerous young law students and high profiles cases for their professors. Now Harvard law school Professor Charles Nesson has raised the stakes with the Recording Industry Association of America (RIAA), which represents the major record labels, by arguing that the litigation brought by the RIAA against alleged illegal downloaders and fileswappers is an abuse of federal process and the US statute it relies upon is unconstitutional. The case involves Joel Tenenbaum, a teenager when he allegedly downloaded just seven tunes over a Peer-to-Peer (P2P) file sharing network, is acing a legal action from the RIAA in US federal court for copyright infringement under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Over the course of years of litigation, during which he represented himself pro se with the help of his mother, Tenenbaum has filed a set of counterclaims against the music company plaintiffs, which he is pressing to have tried before a jury, and he also seeks to tack on the RIAA as a counterclaim defendant. It is in this context that Harvard Law…

Whiter Shade of Pale dispute goes to the House of Lords
Copyright , Music Publishing / December 2008
UK

COPYRIGHT Music Publishing The dispute between Procol Harum frontman Gary Brooker and the band’s original keyboardist Matthew Fisher over who wrote the famous organ music that appears in their biggest hit ‘A Whiter Shade Of Pale’ is heading to the House of Lords. The song was originally credited to Brooker and Keith Reid and for nearly four decades that claim went undisputed with the duo receiving all the royalties generated by the track. The High Court found in Fisher’s favour, ruling he did write the organ music in the song and that he was therefore due 40% of the money generated by it, albeit only from the point where he filed his initial lawsuit in 2005 (this equated to 20% of the songs overall royalties including lyrics). Brooker promptly appealed, and earlier this year the Court of Appeal ruled that, while it accepted Fisher did contribute the organ melody to the song, because he had taken so long to make his claim he shouldn’t be given any royalties past, present or future. Fisher is now appealing the appeal and the House Of Lords have accepted his case. Confirming the case would now proceed to a second appeal stage, Fisher told reporters last…

Napster judge calls for major reform of copyright law in the USA
Copyright / December 2008
USA

COPYRIGHT All areas Judge Miriam Hall Patel, who presided over the case that effectively shut down the ‘mother’ of download sites, the original Napster, has proposed a bold plan to reform copyright law in the USA by creating a new joint public-private organisation which would have authority over the licensing and enforcement of copyright. Patel said “there needs to be a comprehensive revision of the provisions that relate to the administration of copyright licensing, royalties and enforcement” adding “I propose that a joint public/private administrative body made up of representatives of all competing interest, including the public, be established and authorized to, among other powers, issue licenses; negotiate, set and administer royalties; and adopt rules and regulations to carry out these purposes.” Patel suggests that all copyrighted music in the US would fall into the system, that compulsory licences should be abolished and replaced with blanket licences, that a new royalty paying body would be set up, that there would be an independent arbitration body and finally (and quite controversially) any new devices and technology capable of recording, distributing or copying music would need to be approved before being released to consumers. “It was not surprising that the notion of free music caught on,”…

Sharkey says councils and police misusing Licensing Act
Licensing , Live Events / December 2008
UK

LICENSING Live event industry UK Music boss Feargal Sharkey has hit out at the Metropolitan Police and London borough councils, saying they have overstepped the mark in their administration of 2003 Licensing Act. Sharkey, who previously headed up the Live Music Forum, the DCMS sponsored panel which was set up to monitor the impact of the 2003 Act on the live music community, was speaking about the state of gig licensing since the new legislation in front of Parliament’s Culture, Media And Sport Select Committee and explained that as licensing is handled by local councils who take advice from local police, the impact of the new laws varies around the country, but in some areas new licensing powers were being used to hinder legitimate live music events. Focusing on London, he said that a dozen councils in the capital had adopted a system proposed by the Police for the risk assessment of live music. This meant promoters were required to fill in the Metropolitan Police Form 696, which requires specific details about the type of music that will be performed plus the names, aliases, phone numbers and addresses of all performers up to 14 days before the event. This, Sharkey…

Gunners get three gigs a year
Licensing , Live Events / December 2008
UK

LICENSING Live events industry Islington Council has agreed to allow three concerts a year at soccer team Arsenal’s Emirates Stadium in London, under strict conditions. According to the new licensing agreement, noise levels must not exceed set limits, concerts must finish by 10:30pm, a dedicated noise complaint line must be open for residents to use during concerts and Arsenal must put together a noise management plan before each concert. Arsenal applied for the introduction of music events at the 60,000-plus capacity stadium after Bruce Springsteen successfully became the first artist to perform there over two nights in May. “Arsenal worked closely with the council to minimise any disturbance from this year’s Bruce Springsteen concerts and now have a chance to show they can responsibly hold concerts in the future,” said Stefan Kasprzyk, chair of the Licensing Committee, in a statement. “If conditions … such as noise limits are broken then the licence can be brought back to the Licensing Committee immediately for review by anyone who feels they have legitimate cause.” www.billboard.biz/bbbiz/industry/touring.jsp

Clint Black files suit against ex-manager
Artists , Contract / December 2008
USA

CONTRACT Artists By E Thomas Wood writing in the Nashville City Paper Fifteen years ago country star Clint Black fell out with his manager, ZZ Top co-founder Bill Ham. He filed a lawsuit over royalties and publishing rights, eventually spending seven months mired in litigation before reaching a settlement and signing on with a new manager/accountant, Charles Sussman. Now Black is suing Sussman and his firm, Gudvi, Sussman & Oppenheim. In a complaint filed in the Davidson County Chancery Court, Black asserts that Sussman and his firm “repeatedly engaged in self-dealing, negligence, and/or gross negligence” in steering his finances. The lawsuit says Sussman convinced Black to assign more than $500,000 in royalties to Equity Records, an independent record label in which both Sussman and Black have minority ownership. Black says he got nothing in return for this arrangement and was, in effect, “providing Equity an interest-free, unsecured loan.” Further, he claims, Sussman was taking monthly payments from Equity without his knowledge. Black claims Sussman also had him sign more than $1 million worth of personal guaranties for Equity. Black also claims that Equity did seem to have the benefit of a long term agreement with rising stars Little Big Town but last…

Kanye’s camera crackdowncall
Artists , Defamation , Privacy / December 2008
UK
USA

PRIVACY / DEFAMATION Artists Kanye West has spoken out against the paparazzi after being arrested on Friday following his latest altercation with the snappers, this time in the UK. Following his arrest in LA last month after a run in with a photographer at the city’s Airport, this time West was taken in for questioning after causing a photographer’s nose to bleed in Newcastle. He wasn’t actually charged on either occasion. West wrote on his blog this weekend: “Who’s winning, me or the media? Regardless of how much light I put out, there are people working just as hard to only deliver darkness. If you listen to my music, how could I deliver so many positive uplifting messages and be the monster that the media paints? Paparazzi give real photographers a bad name”. Commenting specifically on the Newcastle fracas, he continued: “I put my hand up to the camera in self-defence! Here’s what happened…when I left the club, I was encountered by a thirsty paparazzi as usual. He felt he had more rights to my space than me, so I put my hand up to prevent him from taking my image. I didn’t assault him but merely putting my hand…

McCain fights back against Jackson Browne lawsuit with fair use doctrine
Copyright , Music Publishing / December 2008
USA

COPYRIGHT Music publishing Senator John McCain, the loser in the US presidential campaign, is planning on fighting a lawsuit launched by singer songwriter Jackson Browne over the use of one of his songs in a McCain campaign ad. Quite a number of artists objected to their songs being used at Republican rallies in the run up to America’s election although the Republicans pointed out that recorded music played at events – even political events – is covered by blanket licences if the venue has these (the equivalent to PRS and PPL licences in the UK).  Browne’s 1978 song ‘Running On Empty’, however, was used in an advert, so. However, with only a few words used from the song, McCain’s lawyers are claiming that – while they didn’t clear the use of the track with Browne – it is covered by the fair use exemptions in US copyright law. His defence cites four fair use exemptions – that fact the song was used for non-commercial purposes, the fact the words that were used from the song (it’s title line) are an acknowledged cliché, that only a tiny portion of the song was used, and that its use won’t have damaged Browne commercially (in fact, they argue, it probably…

Should The EU Rethink Copyright Law For The Digital Music Age?
Copyright / December 2008
EU

COPYRIGHT All areas ARTICLE LINK  This article takes an interested look at current issues in copyright and in particular the position of internet service providers in ‘facilitating’ copyright infringement. By William New at http://www.ip-watch.org/weblog/index.php?p=1330

Publicans drink the health of High Court judge
Copyright , Live Events / December 2008
UK

COPYRIGHT Live events industry From the IP Kat The British Beer and Pub Association (BBPA) and the British Hospitality Association (BHA) are lifting their glasses to drink the health of Mr Justice Kitchin after he upheld their appeal against the decision of the Copyright Tribunal on the basis for the calculation of fees which their members have to pay for background music. The decision in Phonographic Performance Ltd and the appeal of the British Hospitality Association and other interested parties [2008] EWHC 2715 (Ch) was handed down on Friday. What was the dispute all about? As Kitchin J explained, it wasn’t just about the money — there was a serious issue relating to jurisdiction to deal with too: “This dispute has arisen in the context of references made to the Tribunal by the Secretary of State of various new licensing schemes issued by PPL for the licensing of the public performance as background music of sound recordings in public houses, bars, restaurants, cafes, shops, stores, factories and offices. These schemes were developed by PPL following an amendment to section 72 of the CDPA [Copyright, Designs and Patents Act 1988] … This removed what was perceived to be an anomalous gap…

Danish court confirms Pirate bay illegal and blocks access
Copyright , Internet / December 2008
Denmark

COPYRIGHT Internet Music companies have welcomed a Danish ruling involving the world’s best known pirate distributor of  music, books and films. The decision confirms the illegality of Sweden’s Pirate Bay and requires a Danish ISP to implement measures to block access to the site. The judgment by the Danish appeal court upholds the decision earlier this year requiring access to the Pirate Bay to be blocked.  The court confirmed the mass scale infringement taking place on the Pirate Bay site and that the ISP in question, Sonofon, is contributing to the infringements by allowing access to the pirate site.  It is the latest step forward in attempts by the creative industries to engage ISPs in helping stop massive copyright infringement on the internet. The ruling was welcomed by IFPI, representing a membership of some 1,400 record companies internationally.  FPI Chairman and CEO John Kennedy said: “This is a very important decision which sets a precedent for other countries and highlights the key role that ISPs should play in helping protect copyright online. The ruling is also a clear confirmation of the illegality of the Pirate Bay, coming just a few weeks before the criminal prosecution of the site’s operators in Sweden” adding “for…

“Safe Harbor” Protects UGC Website: IO Group v Veoh Networks
Copyright , Internet / November 2008
USA

COPYRIGHT Internet By Tom Frederiks, solicitor, Clitons New details have emerged regarding steps user-generated content (“UGC”) sites must take to qualify for “ Safe Harbor” protection under US law. In IO Group, Inc ) v Veoh Networks Inc [2008] No C06-03926 HRL (filed 27 August 2008), the US District Court of Northern California denied IO’s request for summary judgment and granted Veoh’s request for summary judgment by confirming that Veoh (a video site much like YouTube) had established its entitlement to “Safe Harbor” defence against the alleged copyright infringement. IO, a US adult entertainment site and production company, had sued Veoh in copyright infringement for a number of IO’s videos that appeared on the site without authorisation in 2006. The films had been uploaded and viewed by users of Veoh and Veoh sought immunity under the “ Safe Harbor” defence under the Digital Millennium Copyright Act – a US version of Europe’s “Mere Conduit” defences for UGC sites. Under the “Safe Harbor” scheme, a site is effectively immunised from liability in relation to offending material stored “at the direction of a user” provided: (1) it has no actual knowledge of the material; (2) it is not aware of any circumstances from which infringement would be apparent; (3) it…

MCPS-PRS to challenge EC competition ruling
Competition , Copyright , Music Publishing / November 2008
EU
UK

COMPETITION / COPYRIGHT Music publishing UK music royalty collection society the MCPS-PRS Alliance is challenging a European Commission (EC) competition law decision limiting the control such organisations have over copyright use agreements. In July, the EC ruled that the current exclusivity deals the single-country societies had were effectively domestic monopolies in violation of Article 81 of the European Commission Treaty and Article 53 of the EEA Agreement saying The European Commission has adopted an antitrust decision prohibiting 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory. However, the decision allows collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. The prohibited practices consist of clauses in the reciprocal representation agreements concluded by members of CISAC (the “International Confederation of Societies of Authors and Composers”) as well as other concerted practices between those collecting societies. The practices infringe rules on restrictive business practices (Article 81 of the EC Treaty and Article 53 of the EEA Agreement). The Commission decision requires the collecting societies to end these infringements by modifying their…

Warners Brothers fail to enchant India’s High Court over Hari Puttar
Trade Mark / November 2008
India

TRADE MARK Film, television Hari Puttar hit cinemas last month in India and the producers of the film also walked into the High Court after Warner Brothers accused the makers that they ‘unfairly sought to confuse consumers and benefit from the well-known and well-loved Harry Potter brand. Justice Reva Khetrapal disagreed with the US film giant concluding that the film going public were smart enough to make up their own minds between the ‘Comedy of Terrors’ that is Hari Puttra and the seven series Harry Potter books about the boy wizard saying that as the Harry Potter books catered for an educated person ‘such a person must be taken to be astute enough between a Harry Potter film and another titled Hari Puttar. In fact it seems Warners should have saved their money as the film has gad dreadful reviews in India and the ‘Home Alone’ plot has left the few paying customers who have gone to see the film disappointed. The Observer 28 th September 2008 http://news.bbc.co.uk/1/hi/world/south_asia/7628948.stm

New lobby group for featured artists
Artists , Copyright , Record Labels / November 2008
UK

COPYRIGHT Artists, record labels Hot on the heels of British Music Rights’new UK Music initiative, over sixty artists have signed up to (another) new music industry body – this time the Featured Artists’ Coalition launched at theOctoberIn The City conference in Manchester. ´Featured artists´ signed up to the new body include Radiohead, Robbie Williams, Iron Maiden, The Verve, Kaiser Chiefs, David Gilmour, Billy Bragg, Klaxons and Kate Nash. The body will lobby primarily on copyright issues, which will see it joining with the rest of the recorded music community in demanding an extension of the recorded copyright, but also taking on the record companies in a bid to increase the rights and controls artists have over their recordings, and to secure artists a cut of any upfront payments labels receive in deals that are done based on the value of their recording catalogues (eg the upfront payments – in cash or equity – labels often receive from new download services in a bid to secure their involvement). The Coalition will also advocate the ‘use it or lose it’ philosophy, whereby artists who find their labels are unwilling or unable to make their music commercially available could regain control of the recordings, so they…

Absolutely fabtastic – new Virgin Radio name sails into rocky water
Trade Mark / November 2008
India
UK

TRADE MARK Broadcasting In June the Times of India Group brought Virgin Radio from SMG for £53.2 million and had to rebrand the rock radio station in India because they compete with Richard Branson’s Virgin Group in that country and as Branson still holds the rights to the name Virgin Radio in the UK, The Times Of India’s rebranded their new UK radio company as Absolute Radio (as part of its new management company, Absolute Radio International). But V&S (Vin & Spirit) the proprietor of Absolut (the trade mark of Swedish vodka) was less than impressed and has commenced proceedings against the rebranded Virgin Radio, Absolute Radio. As well as the vodka trade mark V&S owns the Absolut TRacks music project, and claims Virgin Radio is infringing its trade mark and passing its services off as those of V&S. A spokeswoman for V&S stated, “The reason for this is that we consider there is a risk of confusion. We have a well known brand and there is an obvious risk of confusion between Absolut vodka and Absolute Radio. We have filed a complaint and now we go into the legal process.” http://www.guardian.co.uk/media/2008/oct/10/commercialradio-radio

Big ruck down under
Copyright , Music Publishing / November 2008
Australia

COPYRIGHT Music Publishing Australian music publishing firm Larrikin Music has lodged a statement of claim against the iconic 80’s hit ‘Down Under’ recorded by Aussie tunesmiths Men At Work alleging that the international song carries an unlicensed sample from a well known Australian children’s nursery rhyme, “Kookaburra,” which it represents. Larrikin claim that the flute riff in Men At Work’s hit is lifted from the earlier song, written in the 1930s by Marion Sinclair, a music teacher and a long time supporter of the Girl Guide movement which has embraced the song as a anthem. The proceedings were instigated when the similarities were raised during a September 2007 episode of the local ABC TV quiz show “Spicks and Specks.” During the show, the question was posed, “What children’s song is contained in the song ‘Down Under?’” The answer, according to the program, was “Kookaburra.” Larrikin is seeking compensation from the “Down Under” songwriters, Colin Hay and Ron Strykert, plus Sony BMG Music Entertainment, Sony DADC Australia, EMI Songs Australia and EMI Music Publishing and are claiming part ownership of the music telling billboard.biz “obviously, we’ve had nothing to do with the lyrics of the song – we’d say that’s 50%…

Loner worker says collection society is taking the PRS
Copyright , Music Publishing / November 2008
UK

COPYRIGHT Music publishing A garage owner who works on his own is furious after the PRS informed him that he has to pay for a music licence if he wants to listen to the radio at work. Paul Wilson, whose garage is on an industrial estate near Ilkeston Road, Nottingham, received a call from the Performing Rights Society (PRS) in May. The PRS said he needed a £150 licence if he wanted to listen to the radio at work as it was a public performance although a PRS spokesman has now said he would review Mr Wilson’s “lone worker” situation. The garage owner was initially asked in a phone call from the PRS whether he had a licence and then received a follow-up letter and then Mr Wilson said “they told me if I did listen to a radio, I would be committing an offence and they were likely to send officers round to check so since then I’ve not put on the radio”. Adrian Crooks from the PRS said: “PRS exists to look after songwriters and composers. In UK law if you’ve written a song, it’s your property and you decide who can use it in business environments” adding…

Two Japanese men arrested for alleged mobile piracy
Copyright , Internet / November 2008
Japan

COPYRIGHT Internet / Technology Two Hyogo Prefecture men have been arrested on suspicion of breaching copyright by enabling mobile phone users to obtain free downloads of songs, police said. Keishi Fujimoto, 28, unemployed, of Himeji, and Takashi Matsuoka, 53, a company worker of Kawanishi, were arrested on suspicion of violating Japan’s Copyright Law. It is the first arrest made under the law in connection with an Internet site offering downloads of entire songs. The Kyoto prefectural police will seek to clarify the details of how the site, one of the largest-scale illegal music download sites in the nation, operated. Operated and managed by Fujimoto, the site–named Dai 3 Sekai–has more than 1 million members, and is popular among middle and high school students. According to the police, Fujimoto made it possible for an unspecified number of people in May and June to download three songs for free via the site, including “Hope or Pain,” a popular song by pop singer Ayumi Hamasaki. In October 2006, Fujimoto also offered “Jonetsu Tairiku with Komatsu Ryota,” an instrumental piece composed by violinist Taro Hakase, for download, with Matsuoka acting as his accomplice. Fujimoto told the police that he opened the site to profit…

Jammie Thomas file swapping decision back in the news
Copyright , Internet , Record Labels / November 2008
USA

COPYRIGHT Internet, record labels From The CMU Daily Jammie Thomas, whose legal team successfully argued that the RIAA had failed to prove that anyone actually did share the music Thomas had made available, and therefore actual infringement had not been proven has proved to be an inspiration in another peer-2-peer file swapping case against a Whitney Harper. She actually admitted to making 37 songs available via Kazaa in court earlier this year, though added as a defence that at the time she was unaware that doing so was illegal. Ignorance of the law isn’t usually a good defence, but the judge in that case, Xavier Rodriguez, expressed sympathy for the defendant and proposed a more lenient damages package of $200 per track. The RIAA weren’t impressed, though subsequently decided to accept the proposed $7400 settlement. Except, now her lawyer is pushing for a full trail in the case, presumably because he knows the US trade body doesn’t have any evidence the files Harper put into her Kazaa sharing folder were ever actually downloaded and, given the Thomas precedent, his client could get away with paying no damages. The RIAA continue to fight the technicality defence used in the Thomas case…

MU joins criticism of Licensing Act
Licensing , Live Events / November 2008
UK

LICENSING Live music From an article by Lalayn Baluch in the Stage The Musicians’ Union has become the latest organisation to criticise the impact of the Licensing Act 2003 on live entertainment in the UK, accusing it of greatly increasing bureaucracy “for very little benefit”. In the MU’s submission to the Culture, Media and Sport Select Committee’s licensing regime inquiry, the musicians’ trade body argues that the legislation has failed to increase the number of live music events around the country and has deterred small venues from hosting gigs. The trade body is now calling on the government to implement “tangible benefits” for venues which do schedule events – such as tax breaks for those that host more than 50 gigs every year – to create a clearer definition of incidental music and simplify the licensing application process. Meanwhile, the union’s report also mounts pressure on the government to introduce an exemption from the legislation for small venues. The MU’s submission states that the inclusion of regulated entertainment in the licensing act is unnecessary and reveals that according to the majority of police chiefs around the country, live music has no effect on the levels of crime and disorder. It also criticises the…

Potter Lexicon binned in victory for Rowling
Copyright / October 2008
USA

COPYRIGHT Books, all areas An unofficial guide to the phenomenally successful ‘Harry Potter’ series of books must be scraped after a ruling in the US courts. The Harry Potter lexicon, a 400 page reference book, was held to infringe J K Rowling’s (and Warner Brothers) copyrights and that the defence of fair use would not apply. Judge Robert Patterson said that the book ‘appropriates too much of Rowling’s creative work for its purposes as a reference book and that independent publisher RDR Books had ‘failed to establish an affirmative defence of fair use. As the book had yet to be published the judge made nominal awards of damages to Rowling and Warner Brothers of £430 for each of the seven novels Rowling has written and £3,888 for two companion books she has also written.   Laurie Kaye has this to say in his most excellent and wizard blog athttp://laurencekaye.typepad.com/laurence_kayes_blog/ So J K Rowling won a permanent injunction yesterday from a NY federal judge to stop RDR Books from publishing a book entitled “The Lexicon”, based on the materials Steven Vander Ark culled from the Harry Potter works (including her companion books) and published on his website “The Harry Potter Lexicon”. The…

So Def chief Dupri and Daz Dillinger face defamation claim
Artists , Defamation , Record Labels / October 2008
USA

DEFAMATION Record labels, artists So Def chief Jermaine Dupri is facing a defamation lawsuit because of the use of a recording of a private phone-call that appeared on Daz Dillinger album ‘So So Gangsta’ back in 2006. A woman called Aika Kendrick claims that the Dupri and Dillinger recorded a personal conversation with her and then used it as a background to the song ‘The One’, which is about an emotionally abusive relationship; the conversation ends with Dillinger launching a tirade of abuse at Kendrick. Kendrick says that as soon as she was aware that the call had been recorded she sent a cease-and-desist to Dupri’s label, but they ignored it, and adds that her inclusion on the album track has made her “the subject of embarrassment, humiliation, and degradation”. She’s seeking $250,000 in damages on the grounds of negligence, copyright infringement, defamation, and intentional infliction of emotional distress. CMU Daily 12 th September 2008 www.cmumusicnetwork.co.uk

Updates on copyright and music in the US
Copyright , Internet / October 2008
USA

COPYRIGHT Internet ARTICLE LINKS –  Rendering ‘Fair Use’ fairly useless and other stories from the digital frontline This is an interesting article by C M Boots-Faubert of the Cape Code Times about proposed US legislation which would immunize entities such as the Recording Industry of America and the Motion Picture Association of America from state and federal laws if they decide that it is necessary to hack, disable, hijack, or otherwise impair “publicly accessible peer-to-peer networks” in order to protect the copyrights they own or represent http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20080902/BIZ/809020303/-1/NEWS Suit sends message says Prof – this article by Isshin Teshima writing in the Flat Hat describes how the College of William and Mary complied with a court order from District Judge F Bradford Stillman and released details of 19 students who had allegedly been sharing music online to the Recording Industry Association of America. This is a useful review of where the music industry is at the moment in the US when trying to enforce copyrights. http://www.flathatnews.com/content/riaa-suits-send-message-says-prof Here is a review of the RIAA’s actions to date – File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation by David Kravets on Wired.com – have the RIAA’s actions against individual peer-2-peer file swappers worked? Have these actions been a necessary tool to fight back against…

Payola – could an old idea save online radio and the music industry?
Copyright , Internet , Record Labels / October 2008
USA

COPYRIGHT Internet, radio, record labels ARTICLE LINK: Remembering that in the US terrestrial stations (but not satellite or online) pay nothing to labels to use music, this interesting article looks at the illegal practice of record labels paying radio stations to get airtime (“pay for play” or payola) and asks if a reworked idea could be a boon to the music industry. http://www.alleyinsider.com/2008/9/could-payola-save-online-radio

UK CD Pirate jailed for three years
Copyright , Record Labels / October 2008
UK

COPYRIGHT Record labels A UK man has been jailed for three years after running a bootleg CD business from his South East London home, in which he counterfeited all kinds of goods, including CDs, DVDs and video games, and then sold them via a website and eBay pretending they were the legitimate. Neil Norton was tracked down as the result of a three-year investigation involving Lewisham Council, Bromley Police, the Federation Against Copyright Theft and record label trade body the BPI. It’s estimated he made up to £850,000 as a result of his counterfeiting over an eight year period, funds which helped him buy the Porsche, BMW, personalised number plates, cameras and computer equipment found at his home – belongings the authorities will now seek to confiscate. A destruction order will also be sought to enable all the remaining counterfeit goods, which include fake designer label clothes as well as the CDs and DVDs, to be destroyed. www.bpi.org

China’s nonstop music machine
Copyright , Internet / October 2008
China

COPYRIGHT Internet ARTICLE LINK:  There’s an interesting article on website The Register looking into the operations of Chinese search engine Baidu, Chinas biggest search engine (far bigger than Google with a 70% market share) which provides a MP3 search engine which provides easy access to online sources of digital music, predominantly illegal unlicensed services. This service was been found to be legal by the Chinese courts after Baidu argued that they didn’t actually host any illegal content – merely linked to it. However the Chinese courts then later found Yahoo! guilty for running a similar service and Baidu now face a second case. The Register have noted that Baidu is one of China’s big internet success stories and at the end of last year it started to trade its shares on the New York based NASDAQ stock exchange – and is valued at $12 billion – and wonders what the implications were for investors. The Register also note that the Chinese government is starting to crack down on corporate infringers in their country as a result of pressure from the West – earlier this year Chinese authorities fined one of Baidu’s albeit smaller rivals, Zhongsou, and seized their servers in…

Is music policed and controlled?
Censorship / October 2008
UK

CENSORSHIP & POLICY All areas, theatre The Taliban may rip tape from cassettes and smash radios – but other ways of controlling what we listen to are far more subtle – from copyright to BBC playlists – and this interesting article, which profiles the work of musician and academic Richard Witts, looks at how sound and music are controlled http://www.independent.co.uk/news/education/higher/is-music-policed-and-controlled-933831.html And for a look at the history of censorship in the theatre including recent cases see ‘A Disgusting Feast of Filth?’ http://business.timesonline.co.uk/tol/business/law/article4775754.ece

New trial ordered in Jammie Thomas case
Copyright , Internet / October 2008
USA

COPYRIGHT Internet US Judge Michael J Davis has granted a new trial in the case of Jammie Thomas, the Minnesota woman convicted of pirating music files in the nation’s first file-sharing trial, ruling that he had made an error in the jury instructions that “substantially prejudiced” her rights. Thomas was convicted last October and a jury in Duluth found her guilty of copyright infringement for offering to share 24 songs on the Kazaa file sharing network. She was ordered to pay $222,000 to six record companies. The legal issue was whether the claimant record companies had to prove anyone else actually downloaded their copyrighted songs, as Thomas’ lawyer argued, or whether it was enough to argue, as the industry did, that a defendant simply made copyrighted music available for copying. Turning to a 1993 appeals court decision, Davis concluded in his 44-page ruling that the law requires that actual distribution be shown. In his jury instructions, he had said it didn’t. Judge Davis also called on Congress to change the federal Copyright Act to address liability and damages in similar peer-to-peer file-sharing network cases saying that whilst he didn’t discount the industry’s claim that illegal downloading has hurt the recording…

Nokia takes a bite out of Apple as the west finally catches up
Copyright , Internet / October 2008
Japan
South Korea
UK

COPYRIGHT Internet ARTICLE:  By Cassandra Williams postgraduate student at the College of Law Two new digital music services have just been announced, each potential threats to the dominance if Apple’s iTunes. Firstly MySpace announced that it would allow artists to stream as many tracks as they like from their MySpace site, funding the costs through advertising, and also announced that it would also compete with iTunes in selling downloads if users wish to keep tracks (on their computers or MP3 players) with a 79p per track offer. All four major labels (Warners, EMI, SonyBMG and Universal) have signed up to the service which will first launch in the US . But this article looks at a different platform – the mobile phone – where a new threat to Apple is perceived. That said, the combination of phone and music player only really took off with the iPhone. 5 million have been sold this quarter according to Information week. However there are drawbacks to Apple’s system: iTunes only offers music on a song by song basis; the tracks are all M4A and thus cannot be easily transferred to other devices; and record label executives are also known to be dissatisfied with the deals…

German Collection society cannot licence ‘Grand Right’ in scenes from Disney musicals
Copyright , Live Events , Music Publishing / September 2008
Germany

COPYRIGHT Live events industry, music publishing File no.: I ZR 204/05 A German concert promoter, Ulrich Gerhartz (Stimmen der Welt Musikmanagement und Veranstalungs Gmbh) , who staged a show which contained excepts from a number of Disney musicals has been held liable for copyright infringement. The “The Federal Court of Justice (Bundesgerichtshof, BGH) decided that the performance of the various indentifiable pieces from different musicals could be considered as a “dramatic performance” under German Copyright Law (Urheberrechtsgesetz). The claimant, Disney Enterprises Inc., owns of the exclusive right of use and performance of the musicals “Beauty and the Beast”, “The Hunchback of Notre Dame”, “Lion King” and “Aida”. Disney sued a German concert promoter who had staged several shows under the title “The Musical Starlights of Sir Andrew Lloyd Webber and the Disney Musical Productions”. Both the Regional Court and the Appeal Court in Frankfurt decided in favour of Disney. The Federal Court of Justice has now dismissed the final appeal of the concert promoter. Under German law an author or other copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German performing right organisation. As in the…

India’s PPL cannot litigate in respect of unauthorised performances
Copyright , Music Publishing / September 2008
India

COPYRIGHT Music Publishing, collection societies Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008) From our friends at Spicy IP and the IPKat In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others , the Delhi High Court has held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings in India. The Court found that the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. Clearly this decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings. Music companies have granted authorisations to PPL to administer their right of communication to the public…

Copyright; locks, levies, lawsuits or licensing?
Copyright / September 2008
Canada

COPYRIGHT All Areas ARTICLE LINK: By Rusell McOrmond This is an interesting four piece blog looking at ‘locks, levies, lawsuits and licensing’ – the different ways in which copyrights can be protected and legally used. http://blogs.itworldcanada.com/insights/2008/07/28/part-4-licensing/

Collection societies break ranks on pan-Eurpean licensing
Copyright , Internet , Music Publishing / September 2008
EU

COPYRIGHT  Music publising, internet  In a classic example of the concepts of territoriality in licensing pitted against the free market within the European Commuity the IPKat brings news of a dramatic development in the Netherlands where a Dutch has issued a preliminary injunction prohibiting Dutch collection society BUMA from granting any further licences for the online sale of the repertoire of works administered by the UK’s Performing Rights Society in so far as those licences extend beyond the territory of the Netherlands. BUMA had previously granted a licence for the territory of the entire European Community to beatport.com. PRS maintained that the reciprocal agreements between collecting societies did not grant BUMA any royalty-collecting rights beyond the Dutch territory. In its defence, BUMA attempted to rely on the Commission’s recent decision in CISAC where the European Commission ordered 24 European copyright collecting societies to stop restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory, while still letting them keep (i) their current system of bilateral agreements and (ii) their right to set levels of royalty payments due within their domestic territory. BUMA argued that any territorial restriction in its reciprocal representation agreements is null and…

Australian customs to search for illegal music on iPods
Copyright , Internet / September 2008
Australia

COPYRIGHT Internet, technology If it was April 1st we might have thought this was a clever joke. It isn’t and the following is just a depressing story. In what could prove to be an administrative nightmare, it has been revealed that the Australian government (amongst others) is considering conducting searches of MP3 players as they pass through airports, in order to check for illegally-obtained music. The proposal, which suggests “criminal sanctions for infringement on a commercial sale” was discovered when an Australian Federal Government discussion paper was leaked to the press. CMU Daily reported that the office of Australian Foreign Minister Stephen Smith confirmed that they were part of negotiations for the international agreement but that they had not agreed or signed up to any aspect of it. www.cmumusicnetwork.co.uk

MediaSat take on YouTube
Copyright , Internet / September 2008
Italy

COPYRIGHT Internet Silvio Berlusoni’s MediaSat has said it will sue YouTube and parent company Google for illegal use of its copyrights. MediaSat’s own analysis showed that there were 4,643 unauthorised videos and clips owned by the Italian media conglomerate on YouTube, equivalent to more than 325 hours of television transmission. Mediasat has said it is seeking E500 million (£383 million) in damages. In the USA, film, TV and broadcast giant Viacom have brought a similar action. Support grows for blanket music licensing http://yro.slashdot.org/article.pl?sid=08/08/19/1821215

New US bill to clamp down on campus piracy
Copyright , Internet / September 2008
USA

COPYRIGHT Internet The US Congress has passed a law to help curb piracy on college campuses. The Higher Education Opportunity Act, passed Wednesday by the House and Thursday by the Senate, promotes education, legal alternatives, and improved monitoring of campus networks. signed into law by President George W. Bush, the bipartisan bill would require publicly funded universities and colleges to teach students and employees about illegal downloading, distribution of copyrighted materials, and related campus policies. The bill also requires universities and colleges to create plans to prevent piracy by using technology and to present legal alternatives. The bill would provide grants to support those efforts. David Israelite, president and CEO of National Music Publishers Association called the bill “an enormous step forward in addressing the problem of illegal downloading on campus networks.” He said the bill recognizes that the best way to address the problem is through cooperation among universities, technology, and legal content providers. The Motion Picture Association of America claims peer-2-peer Internet piracy costs its member studios $3.8 billion a year, with losses from Internet piracy surpassing $2.3 billion. The Recording Industry Association of America cites an Institute for Policy Innovation study that concludes global music piracy causes…

2006 Fifa trademarks cancelled for lack of distinctive character
Trade Mark / September 2008
EU

TRADE MARK All areas 2006 Fifa trademarks cancelled for lack of distinctive character: OHIM Cases R 1466/2005-1, R 1467/2005-1, R 1468/2005-1, R 1469/2005-1 and R 1470/2005-1. All The Board of Appeal of the OHIM has allowed appeals brought by Ferrero oHG mbH against the refusal of the Cancellation Division to cancel marks belonging to the Fédération Internationale de Football Association (Fifa). The five marks in dispute have now dated and are of little commercial value as the event in question, the 2006 football World Cup, has passed. However the case sets an important precedent. The marks are: WORLD CUP 2006 (referring to the football world cup); GERMANY 2006 (the event taking place in Germany); WM 2006 (WM is Weltmeisterschaft, “World Cup” or World Championship” in German); WORLD CUP GERMANY; WORLD CUP 2006 GERMANY. The grounds upon which the registrations were challenged were that the signs in question were descriptive and lacked distinctive character. http://oami.europa.eu/search/legaldocs/la/en_BoA_Index.cfm?CFID=2933140&CFTOKEN=92532803

Girl talk album prompts music sampling debate
USA

COPYRIGHT Record labels, music publishers ARTICLE LINK:  If you have heard of the new Girls Talk album you may or may not be aware than none of the 300 or so eclectic music samples appears to have been cleared with copyright owners. Will fair use be enough to protect the artist and his label? http://futureofmusiccoalition.blogspot.com/2008/08/girl-talk-and-sample-license-clearance.html

Online insults were slander not libel Smith v ADVFN & Others [2008] All ER (D) 335
Defamation , Internet / September 2008
UK

DEFAMATION Internet Eady J has handed down a judgment in the case of warring bloggers although in light of the small number of members of the public exposed to the “mere vulgar abuse” to a fairly dim view of why the case was brought at all, staying proceedings. The High Court case was brought by Nigel Smith, also known by his online avatar “Anomalus”. Acting as the coordinator of an action group to recover shareholders investments from an alleged fraud, Smith had himself lambasted an individual known as “Wiganer” as a fraudster on the ADVFN Board and alleged that various others were falsely claiming compensation for the fraudulent losses. These allegations prompted comments from other shareholders and contributors to the discussion board in support of those who had been “threatened and bullied” by Smith. Smith requiring ADVFN to disclose the IP addresses of those concerned and the of the legal proceedings triggered more (allegedly) defamatory comment against Smith who – unemployed and thus unfettered by the requirement to pay court issue fees – issued 37 sets of proceedings! Of comments made on a discussion board, Eady J observed that they were (a) read by relatively few people, who share an…

US federal court enforces copyright in open source software Jacobsen v Katzer 2008-1001
Copyright / September 2008
USA

COPYRIGHT All areas The US Court of Appeals for the Federal Circuit has held that an open source copyright ‘Artistic Licence” can be enforced under copyright law, rather than merely under contract law. The case involved. The dispute was between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under an open source artistic license, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution to the original authors, the original owner’s copyright notices, tracked changes or availability of the underlying standard version. The lower court denied relief, saying that the artistic license merely imposed ‘contractual’ promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). However the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted ‘conditions’ for reliance on the license, and consequently that a violation of those conditions would put the…

McCain fried? Campaigning senator upsets Paris and Jackson
USA

COPYRIGHT / IMAGE RIGHTS Music publishing, record labels, artists First US presidential candidate Senator John McCain liked Barak Obama’s cultural appeal to Paris Hilton, and Hilton hit back with a rather amusing and somewhat damaging video which mocked the ‘white haired dude’ and rather put McCain on the back foot. Now Jackson Browne’s management have taken action over the use of one of his iconic songs, “Running On Empty” in one of the Senator’s ads. When Browne’s management began receiving emails from people who wondered why the legendary singer and songwriter – an Obama supporter who doesn’t allow his songs to be used in advertisements of any kind – would allow “Running on Empty” to play in a John McCain campaign commercial – they decided to investigate. It turns out Jackson never granted permission for any such use and according to a lawsuit in US District Court in Los Angeles, the Ohio and National Republican Parties and McCain himself are responsible for two illegal actions by infringing Browne’s copyright and creating the false impression that Browne had endorsed John McCain. Browne’s lawyer Larry Iser said “When you’re a senator, or you’re elected president, you take an oath to preserve, protect,…

Atlantic v Andersen draws to a sorry close for the RIAA
Copyright , Internet , Record Labels / September 2008
USA

COPYRIGHT Record labels, internet The RIAA’s much criticised pursuit of an disabled Oregon woman in Atlantic v Andersen has finally drawn to a close and the RIAA must pay Ms Anderson $107, 951 representing the amount of her attorneys fee judgment plus interest. But as some commentators have pointed out, the sum does not compensate Ms. Andersen for the other damages she’s sustained, and that’s where the case may switch around as Tanya Andersen does the hunting, as she pursues the record companies for malicious prosecution. Should be interesting. http://yro.slashdot.org/article.pl?sid=08/08/15/1145236

UK IPO calls for comments on penalties for Copyright Infringement
Copyright / September 2008
UK

COPYRIGHT All Areas (Closing date: 31 October 2008) Currently the maximum fine that Magistrates’ Courts can award for online copyright infringement is £5,000. To reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000. This consultation takes forward Gowers Review recommendation 36, which recommended matching penalties for online and physical copyright infringement by increasing sanctions for online infringements. Further to this in February this year “Creative Britain: New Talents for the New Economy” was published by the Departments for Culture, Media and Sports (DCMS), Business, Enterprise and Regulatory Reform (BERR), and Innovation, Universities and Skills (DIUS). It included a commitment to consult on increasing the fines available in the Magistrates’ Court from the current £5,000 limit to a maximum of £50,000 for online copyright infringement. Scotland does not have Magistrates’ Courts; therefore the consultation considers introducing maximum levels of fines for Scottish summary courts that deal with equivalent cases in Scotland. Magistrates Court currently do have extended powers to levy fines in certain specific instances including fines of up £50,000 under the Environmental Protection Act 1990 and up to…

First filesharing judgment for UK gamer as gaming industry gets tough
Copyright , Internet / September 2008
UK

COPYRIGHT  Internet, games industry  A woman has been ordered to pay more than £16,000 in a landmark ruling after a crackdown on gamers who illegally share computer games and films over the internet. Isabella Barwinska is the first defendant to pay damages after being taken to court in the UK by computer game manufacturers seeking to protect their copyright. In a decision of the Patents County Court in London she must pay damages of £6,086.56 and costs of £10,000 to Topware Interactive which owns the computer game Dream Pinball 3D. It is understood that she did not file share for commercial profit or gain – but took files to share with friends and was given 28 days to settle the judgment. Last night Topware Interactive’s London lawyers Davenport Lyons revealed that they had launched civil proceedings against 100 people – who are all suspected of illegally uploading copyrighted works – on behalf of Topware Interactive. The latest case comes after earlier this year the Central London County Court ruled against four people who were found to have infringed copyright by illegally sharing games on the internet. The games industry has also announced that would serve notices on 25,000 people across the UK requiring each…

US games pirate fined
Copyright , Internet / September 2008
USA

COPYRIGHT Internet, games industry A Florida man has been sentenced to 15 months in prison and ordered to pay $415,900 in restitution after selling video games systems preloaded with up to 75 illegally copied video games. Kifah Maswadi, 24, was sentenced in the US District Court for East Virginia for one count of criminal copyright infringement. The court heard that Maswadi had sold Power Player handheld games consoles pre-loaded with mostly illegal copies of Nintendo games and made profits of $390,000. Maswadi was also sentenced to three years of supervised release after his prison term and 50 hours of community work educating others on the risks of criminal copyright infringement. http://www.goodgearguide.com.au/index.php/id;548719918;fp;4;fpid;802453;pf;1