Jamie Thomas-Rasset file-sharing damages back up to $1.5 million
Copyright , Internet , Record Labels / December 2010
USA

COPYRIGHT Record labels, internet In her third trial on copyright infringement charges for sharing 24 songs online, a US jury has ordered Jammie Thomas-Rassett pay $1.5 million in damages, or $62,500 per song. In the previous trial, the judge reduced a jury award from $1.92 million to $54,000. Both sides appealed that amount, which eventually led to a third trial solely on the matter of damages. Thomas was one of the thousands of people sued by the Recording Industry Association of America for file-sharing but unlike many who settled, she chose to fight her case in court, but lost twice but the question pf the quantum of damages remains.  US copyright law allows infringement damages of  between $750 and $150,000 per infringement. In the first trial Thomas was ordered to pay $9,250 per song, or $222,000 in total. After the trial judge held that he may have erred in law, a second jury awarded the record industry $1.92 million in damages. But Judge Michael Davis said that level of damages was totally inappropriate for the sharing of 24 songs on the internet and he cut the payment to a total of $54,000. The RIAA, while rejecting Davis’s damages ruling, offered…

Limewire pirated
Copyright , Internet / December 2010
USA

COPYRIGHT Internet Less than two weeks after Judge Kimba Wood in the federal District Court in Manhatten ordered a halt to distribution of the file-sharing software application LimeWire, TorrentFreak reports that a “secret” development team has reengineered the software and released it back onto the Internet as the new and seemingly improved “LimeWire Pirate Edition” which is based on the LimeWire 5.6 beta released earlier this year. TorrentFreak say “LimeWire is back as good as new” with “a few significant changes which make it better and more streamlined than before”. A source told TorrentFreak that after the court’s decision “a horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons, and released it free to the community” adding “All dependencies on LimeWire LLC’s servers have been removed, all remote settings have been disabled, the Ask toolbar has been unbundled, and all features of LimeWire PRO have been activated for free”. http://s0.2mdn.net/1651284/v3_new.html?rfp=http://www.v3.co.uk/v3/news/2272936/limewire-riaa-p2p-pirate andhttp://torrentfreak.com/limewire-resurrected-by-secret-dev-team-101108/ 

Pirate Bay four resentenced on appeal – fines up, but custody down
Copyright , Internet , Record Labels / December 2010
Sweden

COPYRIGHT Internet, record labels Three of the four defendants in the Pirate Bay trial have had their custodial sentences reduced; Fredrik Neij will now serve ten months, Peter Sunde eight months and Carl Lundstrom four months (all reduced from original sentences of twelve months). Gottfrid Svartholm who claimed he was too ill at the time of hearing will have his sentence reviewed at a later date. The fines payable have been have been raised from 30 million kronor to 46 million Kroner (US $6.4m). The Pirate Bay website is still functioning. http://www.bbc.co.uk/news/technology-11847200

Three arrested in UK ticket scam investigation
Criminal Law , Live Events / December 2010
UK

CRIMINAL Live events industry Three people have been arrested in the UK for allegedly defrauding fans out of £1 million (E1.15 million) through two bogus ticket websites, worldwideticketstore.com andlivelinetickets.com.  premises of the first site was raided by Trading Standards Officers and the website for the latter closed by Police. Victims were usually told that their credit card had been declined and ask to send a cheque which was then cash but not tickets were forthcoming. The suspects, two men aged 68 and 54 and a woman aged 62 were arrested on suspicion of fraud by false representation in Surrey and Bromley. Police believe they have disrupted a ‘significant criminal network’ during the raids and arrests. In related news, after thre ticket resale problems at the last two Olympics officials in London are taking a hard line stance against ticket resellers. The London Organizing Committee of the Olympic Games and Paralympic Games (LOCOG) has already set its sights on touts threatening legal action and the closing of illegal resale Web sites. In a recent meeting of National Olympic Committee delegates in Acapulco, Mexico, LOCOG Chairman Lord Sebastian Coe remarked, “The reputational damage for everyone across the board is huge if the…

BT’s deletions thwart Ministry’s trawl
Copyright , Internet / December 2010
UK

COPYRIGHT Internet Music and club brand the Ministry of Sound has had to give up chasing 25,000 alleged file sharers – because BT has deleted their details. The Ministry of Sound started legal action in July to force ISPs to hand over customer details. The nightclub claimed these customers were guilty of infringing its copyright and somewhat controversially its lawyers Gallant MacMillan sent letters demanding £350 for the claimed uploading. After the well publicised hacking of ACS:Law in a similar case involving alleged illegal downloading of porn, BT decided to challenge this process and went to court to demand Ministry provide more information to make sure BT customer privacy was not breached. Ministry claimed it was happy to do this despite extra costs incurred, and despite the fact that it wasn’t using ACS Law. But it said it later found out that BT had deleted 20,000 of the 25,000 records and Ministry have decided it wasn’t worth the cost of providing the extra information to pursue just 5,000 people, so it has put the pirate chase on ice. BT said it had stopped bulk disclosures from 29 September until proper safeguards for its customers are put in place. BT said:…

UK Government announce (another) IP review
Copyright / December 2010
UK

COPYRIGHT All areas David Cameron, the UK Prime Minister, has announced another review of IP law saying “The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the USA” adding “Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.” A Press Release said that the Review will develop proposals on how the UK’s intellectual property framework can further promote entrepreneurialism, economic growth and social and commercial innovation.  It will examine the available evidence as to how far the IP framework currently promotes these objectives, drawing on US and European as well as UK experience, and focusing in particular on: .       Identification of barriers to growth in the IP system, and how to overcome them; .       How the…

TalkTalk and BT win review of online piracy law
Copyright , Internet / December 2010
UK

COPYRIGHT Internet BT and TalkTalk have won their battle for a judicial review of the controversial Digital Economy Act designed to crackdown on music and video piracy. The telecoms companies had argued that the law, which calls on internet service providers (ISPs) to block illegal file sharing from accessing the internet, had been rushed through parliament in the “wash up” period before May’s general election. Mr Justice Hinkinbottom in the High Court has now granted a review of the Act on the grounds that it may conflict with European Union privacy laws and the Government may be forced to amend the law following the review, which is due to take place in February. Andrew Heaney, executive director of strategy and regulation at TalkTalk, said the Act had serious flaws, and the debate that saw it passed in to law was attended by only 6 per cent of MP saying “The provisions to try to reduce illegal file-sharing are unfair, won’t work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded,” he said. “We look forward to the hearing to properly assess whether the Act is legal and justifiable and…

Fela! Musical hit with lawsuit by star’s biographer
Copyright , Live Events / December 2010
USA

COPYRIGHT Live events industry Producers of the $5 million stage musical on the life of Fela Kuti have been hit with a five million dollar lawsuit from the late star’s official biographer, who claims the show’s creators have ripped off his book.  Carlos Moore says he was approached by the makers of ‘Fela!’ in 2007 and $4,000 for the stage rights to his biography. Calling that offer “grossly insufficient”, Moore rejected the offer, saying he’d need a considerably larger advance and a cut of any stage show revenues to agree to participate.  Moore claims he then heard nothing more before the opening of ‘Fela!’ in New York. The show, he alleges, is wholly based on his book, which was used by the musical’s creators Jim Lewis and Bill T Jones without his “knowledge, authorisation or consent”. He this week filed a lawsuit, claiming $5 million in damages.  Producers of the show, which is backed by Jay-Z and Will Smith among others and which opened in London last weekend, say they are shocked by the lawsuit, not least because Moore took part in the publicity that surrounded the show’s Broadway opening, during which he praised the stage show for its “tremendous…

Bollywood star threatens legal action over ‘fake’ in advert
Artists , Image Rights / December 2010
India
USA

IMAGE RIGHTS Artistes Amitabh Bachan, one of Bollywood’s biggest stars, is threatening legal action over a tobacco advert that features a ‘sound alike’ of the actor promoting gutka, a mixture of chewing tobacco, crushed betel nuts and spices. Bachan, who says he does not smoke nor would he promote smoking, says the advert is unethical and paints him in a bad light and that  he will ‘take steps to stop this illegal practice’ saying ‘manufacturers of products be it toothpaste or a car or a mobile spend huge amounts of money and time and management to build its brand value with certain credibility. For it then to be destroyed through unfair and illegal means is not acceptable. In the USA, image rights have been extended to include cover ‘look alikes’ (Onassis v Christian Dior) and even ‘sound alikes’ – the 1988 case of Bette Midler v Ford Motor Co found that hiring a sound alike vocalist to impersonate Bette Midler in an advertisement was “to impersonate her voice’ and thus was ‘ to pirate her identity’ just as Dior’s action in using a Christine Onassis look alike model had infringed her rights. http://www.independent.co.uk/news/world/asia/bollywood-star-blasts-voiceover-fake-for-advert-2129787.html Bette Midler v Ford Motor Co (1988) 849 F 2d 460 Onassis…

Donald keeps injunction but loses anonymity
Artists / December 2010
UK

REPUTATION Artistes The “super injunction” that stopping the UK media from reporting that Take That’s Howard Donald had been battling to stop an ex-girlfriend from dishing the dirt on their relationship has been lifted, though an injunction stopping the dirt dishing itself is still in place. Donald  went to court to stop Adakini Ntuli from selling her story to the tabloids after she sent Donald a text message in April which read: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?” In response Mr Justic Eady granted the super injunction but this was appealed, and yesterday the Court Of Appeal lifted the super-injunction but kept the ban on the content Ntuli is planning to make public. Take That’s new album Progress has shifted 530,000 units in the UK in its first week, which according to the UK Official Charts Company, makes it the fastest selling album of the decade. http://www.bbc.co.uk/news/entertainment-arts-11764242

EMI dispute George Martin royalty for Fab Four Rock Band video game
Copyright , Record Labels / December 2010
UK

COPYRIGHT Record labels According to the Daily Mail, EMI and Chrysalis could be about to commenced battle in court over whether legendary Beatle’s producer George Martin is due his usual 1.5% producer royalty on The Beatles catalogue in relation to the Fab Four edition of video game ‘Rock Band’, which released last year. Music publisher Chrysalis represents Martin’s producer Martin’s copyrights, including the 1.5% record sales royalty he is due, a right stemming from a 1965 agreement. However, it seems that EMI is arguing that its 1965 royalty agreement with Martin doesn’t apply in the case of the ‘Rock Band’ video game, because such a product does not come under the definition of ‘record’ in that contract. Needless to say, Chrysalis does not concur. In a letter included in a High Court submission, seen by the Mail, EMI’s legal beagles claim “[The] concept of a music video game neither then existed nor could be said to be in the contemplation of the parties”, and therefore the royalty payment did not cover such things. But Chrysalis argues that is irrelevant because “it was plainly the parties’ intention that the 1965 agreement would extend to cover formats and technologies which had not…

Dutch courts explain the copyright levy paradox
Copyright , Internet / December 2010
Netherlands

COPYRIGHT Internet Another legend, Jeremy Philips, blogs ( http://the1709blog.blogspot.com/2010/11/copyright-owners-better-off-in-regime.html ) on two recent and equally striking Dutch decisions handed down by the Court of Appeal of The Hague. In the two separate cases, the court ruled that, since downloading from illegal sources for private use was permitted under Dutch law, this was to the copyright owner’s advantage and explained this paradoxical position as follows: “In ACI et al. v Stichting de Thuiskopie the question was how the Dutch private copy levy (the “thuiskopievergoeding”) on blank CDs and DVDs should be calculated. Contrary to the decision of the District Court, the Court of Appeal ruled that downloading from illegal sources is permitted and should therefore be taken into account when determining the level of the levy: that should also compensate for loss of income due to downloading from illegal sources. The Court of Appeal stated that the private copying exemption in the Dutch Copyright Act does not differentiate between copies made from legal or illegal sources. With reference to statements made by the Minister of Justice, the Court argued that the legitimate interest of the right holders is more adequately protected in a regime that allows downloading from illegal sources. In view of the Dutch government’s…

Terra Firma lose Citigroup claim
Contract , General , Record Labels / December 2010
USA

CONTRACT Record labels The Wall Street Journal report that EMI’s parent company Terra Firma has lost its legal dispute with Citigroup, in which it had alleged the bank misled it into paying too much to acquire the label.  Citigroup was found not guilty of fraud in a federal court in New York, after Terra Firma founder Guy Hands had alleged he was misled by Citi about competing bids for EMI. Terra Firma acquired the major label and music publisher for $6.3 billion in 2007 and the label has carried a heavy debt and Terra Firma has struggled to meet loan repayments to Citigroup. After the jury had revealed its conclusion, Citigroup’s legal representative Ted Wells criticised Terra Firma for pursuing the litigation. He told reporters: “I think Mr Wormsley was put through a terrible ordeal. He was totally innocent, he did nothing wrong. He is a man of honesty and integrity”.  EMI chief Roger Faxon insisted that the major was unaffected by the ruling, telling reporters: “EMI has had a solid operational performance over the last six months, driven by considerable success in both recorded music and music publishing. We are wholly focused on further developing our business, and on…

US Appeals Court look at internet rights (and wrongs)
Copyright , Internet , Music Publishing / November 2010
USA

COPYRIGHT Internet, music publishing I have always been suspicious that the only reason that the songwriter and music publisher collection societies the Performing Right Society (PRS) and the Mechanical Copyright Collection Society (MCPS) ever evolved into ‘PRS for Music’ was because that no-one then quite knew what a stream or a download was “in law” and that the merger only way they could sensibly (and legitimately) explain their right(s) to collect royalties from the use of their member’s songs on the internet. There was (and still is) much debate about what constitutes a ‘stream’ and what constitutes a ‘download’ and whether these form a public performance (whether a broadcast or a ‘communication to the public’) or are more like the sale of a copy of a copyrighted work – a ‘per unit’ sale. There again, some ask whether they both? Or are they the same thing? Or is copyright law so hopelessly out of tune with the modern world that none of these definitions are actually applicable? Well now a US Federal appeals court has had a go at casting some illumination on these issues and indeed on how the US collection society should be levying royalties for the use of collection society’s ASCAP (songwriter and music…

“Music labels lose downloads case” as Irish High Court reverses its earlier decision
Copyright , Internet , Record Labels / November 2010
Ireland

COPYRIGHT Record labels, internet The extraordinary and wonderful IPKat reports in detail on an article in the Irish Times (11/10/2010). The story is a sequel to the efforts made in Ireland to get a “three strikes” policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today’s High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland. According to the press report, the judge agreed that online infringement not only undermined the recording companies’ business but “ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry”. However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law. Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern…

Google could fix record label piracy concerns – at a price
Copyright , Internet , Record Labels / November 2010
USA

COPYRIGHT Record labels, internet Google has offered the US record industry a new tool to help it more easily find links to infringing content that appear on the search engine – but wants to charge a fee for the tool. CNet reports that a letter sent to the Recording Industry Association of America (RIAA) and the International Federation of Phonographic Industries (IFPI), a Google executive advised that his company is making a number of new web search ‘API products’ available, one of which would be useful for content owners trying to keep track of illegal content sources appearing in Google searches and once the content owner has found an illegal source they can use the take-down system that exists under America’s Digital Millennium Copyright Act to ask Google to remove the offending content link. So it seems that a search of the site costs, but a take down is free. The cost of using the new service, Site Search, will be five dollars per 1000 queries. CNet cite a music industry source who estimated that such charges could add up to several million dollars a year and this has ‘raised eyebrows’ in the music industry. CNet says that at a…

Online infringement
Copyright , Internet / November 2010
France
UK
USA

COPYRIGHT Internet ARTICLE LINKS;  A useful review of the recent Digital Music Summit at Belmont University titled “Music industry fights clashing digital battles” with comments from record label associations the IFPI and the RIAA and some different views from consumer champions EFF, amongst others: http://www.tennessean.com/article/20101003/BUSINESS01/10030328/Music-industry-fights-clashing-digital-battles Also, in the wake of the cyber attack on ACS:Law and the leaking of personal details of thousands of suspected illegal downloaders and file shares, an update on the Ministry of Sounds’ actions against individual actions in the UK herehttp://torrentfreak.com/anti-piracy-lawyers-face-ddos-before-pivotal-court-decision-101002/ and actions by filmmakers in the USA here http://news.cnet.com/8301-31001_3-20018358-261.html and for Kiss front man Gene (sue ‘em all) Simmon’s views seehttp://www.nme.com/news/kiss/53351 Victoria Espinel, the U.S. Intellectual Property Enforcement co-ordinator , visited the Future of Music Policy Summit and offered a brief summation of what’s on her agenda athttp://leisureblogs.chicagotribune.com/turn_it_up/2010/10/future-of-music-2010-copyright-czar-outlines-file-sharing-policy-that-paints-many-americans-as-crimi.html And France’s brand new three strike’s law has launched wit the first wanrning emails being sent to suspected illegal downloaders and file shares. More here All Eyes on France as Officials Enforce New Antipiracy Law at http://online.wsj.com/article/SB10001424052702303550904575562130775993568.html

Bounty Hunters Let Loose
Copyright , Internet / November 2010
UK

COPYRIGHT Internet ARTICLE:  By Cassandra Williams BA(Hons) LLB(Hons) The gloves are seemingly off as certain rights holders are turning to what some say are dubious tactics in order to prosecute and receive compensation for alleged infringement. However this is giving rise to data protection worries and possibly even worries of false accusations. One of the most well know “bounty hunters” in this field are ACS:Law, a London based legal firm who have been accused of being lax in their data protection and who have also been accused of “intimidating” people to enter into out of court settlements where the defendants have been accused  of illegally accessing and downloading porn, an accusation many would have been nervous about facing in court.   These concerns have been raised earlier this year by Which? Magazine and according to the BBC the Solicitors Regulation Authority is reviewing ACS’s letter-sending campaign on behalf of their content owning clients. Now ACS:law itself has become the “victim” of a hacker in a move which enabled a list of thousands of Sky web users details including names, contact, credit card information and potential details of alleged pornography downloaders who were accused of accessing to be published. ACS:Law had their…

High Court adjourns in ongoing data leaks case
Copyright , Internet / November 2010
UK

COPYRIGHT Internet The U.K. High Court has granted BT, the telecommunications firm, request to stay an order requesting it hand over the identities of ISP subscribers suspected of illegal file-sharing. Dance music record label Ministry of Sound had hired law firm of Gallant Macmillan pursue internet users suspected of sharing its songs online; the firm identified computer IP addresses connected to the activity, and then asks ISPs, including BT, to identify the subscribers in question. Their action was pushed into the public eye after personal data on thousands of suspected file-swappers from ACS:Law, another law firm hired by copyright holders to seek out infringers, was leaked onto the internet net after a cyber attack on ACS. BT told the Guardian “We want to ensure broadband subscribers are adequately protected so that rights holders can pursue their claims for copyright infringement without causing unnecessary worry to innocent people,” adding “the incident involving the ACS:Law data leak has further damaged people’s confidence in the current process. We’re pleased that the court has agreed to an adjournment so that our concerns can be examined by the court, this will then act as a precedent/test case for the future.” See http://www.dmwmedia.com/news/2010/10/05/bt-asks-court-halt-fileswapper-ids-ministry-sound-case

Judge Tells LimeWire to Disable Its Software
Copyright , Internet , Record Labels / November 2010
USA

COPYRIGHT Internet, record labels Judge Kimba M Wood in the Federal District Court in Manhattan has issued an injunction that will essentially shut down LimeWire, the music file-sharing service that has been embroiled in a four-year legal struggle with the music industry. The case has already resulted in the company and its founder being found liable for potentially hundreds of millions of dollars in damages (see Music Law Updates August 2010). The company says that it will continue negotiations with the major music companies in an effort to offer music legally for sale with a subscription service but in her ruling, the Judge forced the company to disable “searching, downloading, uploading, file trading and/or file distribution functionality” of the company’s file-sharing software. Visitors to LimeWire’s Web site were greeted with a legal notice and the words, “downloading or sharing copyrighted content without authorization is illegal.” In a statement the Recording Industry Association of America, the music industry’s trade group that had led the suit, said: “For the better part of the last decade, LimeWire and [founder Mark] Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that LimeWire…

Swift faces action by ex-manager
Artists , Contract / November 2010
USA

CONTRACT Artists Taylor Swift’s one-time manager, Dan Dymtrow has filed a lawsuit against the popular US singer, her father-manager and her record label Big Machine. Dymtrow worked with Swift back in 2004 on her early recordings but was fired by Swift’s father  in July 2005 ahead of him signing his daughter to country indie Big Machine. Dymtrow claims that Taylor Swift’s father conspired to cheat him out of millions of dollars earned by launching the Grammy-winning country star because he discovered Swift, signed her in April 2004 when she was 14 and played a key role in building her career before being dumped in July 2005. |he argues that his management deals with Swift and parents Scott and Andrea Swift provided that he be paid between 5 percent and 10 percent commission (or more) from Taylor’s music career but that after developing Swift and introducing her to industry heavyweights like Big Machine CEO Scott Borchetta, he was strung along by the family and then fired to avoid paying him. In response, the Swifts claim that because Dymtrow failed to obtain the required court approval of his management contract with Taylor, then a minor, she legally disaffirmed the deal in 2005,…

Astronaut sues Dido
Artists , Image Rights / November 2010
USA

IMAGE RIGHTS Artistes The astronaut Bruce McCandless is suing Dido and her record label over unauthorised use of a photo of his 1984 space flight for the cover of her 2008 album “Safe Trip Home”. McCandless said he never gave permission for Dido to use the photograph, which shows him “free flying” about 320 feet away from the space shuttle Challenger. The Lawsuit, also naming Getty Images and Sony Music Entertainment, seeks unspecified damages for unauthorised use of McCandless’s persona (although of course being encased in a spacesuit his ‘image’ is somewhat obscured!). Comment from Simon Bradshaw, in the IPKat, explains that There’s clearly no case in copyright law as NASA pictures are, by US Government policy, in the public domain”. Bruce McCandless v. Sony Music Entertainment, 10-07323, U.S. District Court, Central District of California (Los Angeles)

A rather honest admission from Diana Vickers
Copyright , Music Publishing / November 2010
UK
USA

COPYRIGHT Music Publishing CMU Daily reported that The Red Hot Chili Peppers are reportedly considering suing former ‘X-Factor’ semi-finalist Diana Vickers over her new single ‘My Wicked Heart’, which the US band say borrows from their 1992 song ‘Under The Bridge’. Rather more alarmingly for Vickers, she seems to have admitted all in an interview with Digital Spy, telling the website, when asked about the similarity between her song and the RHCP track: “Yeah, that happened without even knowing. We wrote the song in an hour. We had the song and it didn’t have the ‘My Wicked Heart’ bit in it and then we put the vocal in and we were like, ‘Why does it sound so familiar?’ Then we realised it was because we were listening to ‘Under The Bridge’ the day before” adding (legal belt and braces?) “We were saying, ‘Should we change it? Should we not? What should we do? Sod it, no, we’re just gonna keep it, it works’”. I do hope Diana isn’t expecting song writing royalties from the track ….

Eminen dispute goes back to court
Contract , Copyright , Internet , Record Labels / November 2010
USA

CONTRACT / COPYRIGHT Internet, record labels Last month we reported on FBT’s success in challenging royalty rates calculated by Universal. FBT were Eminen’s production company – and now the rapper himself has begun an action – or rather re-commenced an action – again against Universal. Last year Eminem’s company Eight Mile Style sued Universal, UMG’s label Aftermath and Apple Inc over the sale of Slim Shady’s track on iTunes, it appears on the grounds that Universal did not have the rights to licence Eminem’s music for download. Based on that claim, Eight Mile Style said it was due millions in damages but the case was settled by Universal and/or Apple and a promised payment in damages of over $2 million was agreed. Now it seems that Universal and/or Apple have not made good on that promise and, according to DetroitNews.com, Eight Mile Style has now filed a new lawsuit at the Detroit District court requesting a judge enforce the earlier settlement. Should this get to court this time round, it’s not clear if the case would centre on the contractual agreement made last October or on Eight Mile Style’s original claim regarding the download rights in Eminem’s music. In related…

Reeperbahn Campus Conference concludes with thoughts of Love Parade
Health & Safety , Live Events / November 2010
Germany

HEALTH AND SAFETY Live events industry Perhaps unsurprisingly, it was the tragedy at the Love Parade in Duisburg that focussed minds at the Reeperbahn Campus Conference, with delegates concluding that more should be done to share crowd management knowledge and experience across Europe, both within the live entertainment sector, and also with those in local government who regulate large scale events. Jens Michow, boss of trade body BDV said “With a tragedy this size, of course there will be a reaction, with people and government calling for new rules or regulations” but added “but in reality German law is already quite extensive in this area, and a lot of the new regulations being informally called for post-Duisburg are already there in the law … that’s not to say there isn’t room for improvement”, he conceded. “Especially regarding the way venues and promoters agree security arrangements; but it’s important people don’t get hysterical here and overlook the protection that already exists in Germany”. But it was the lack of information, in particular with Local Authorities, that was talked about. Delegates pointed out that there was a lot of “great knowledge out there across Europe about how best to manage large events” but…

A memory of 1967: Harold Wilson wins Moving apology
Artists , Copyright / November 2010
UK

COPYRIGHT Artists, politicians An article in the (paywall protected) Times in October reminded me of 1967 case involving the Move and the then Prime Minister, Harold Wilson. The promotional campaign for the Move’s hit single “Flowers in the Rain” backfired badly after the band’s manager Tony Secunda, without consulting the group, produced a cartoon postcard showing a nude Harold Wilson in bed with his secretary, Marcia Williams. Wilson sued The Move for libel and the group lost the court case and had to pay costs, with all royalties earned by the recordings, the song and the B-side “Lemon Tree” (the latter of particular chagrin to  composer Roy Wood) being awarded to charities of Wilson’s choice. The postcard’s designer and printer also paid damages, again to the charities. The ruling remained in force after Wilson’s death in 1995 The BBC website has this to say: The Move pop group have made an apology in the High Court to the Prime Minister for a “violent and malicious personal attack”. Libel action was taken by Harold Wilson after a postcard was published, promoting the group’s new record Flowers in the Rain. It featured a caricature of the Labour Prime Minister in the nude….

Article: MUSIC BUSINESS CONTRACTS
Contract / October 2010
UK

ARTICLE: Why sign a music business contract? by Ben Challis General Information: If you are an artist or a performer, then at some stage in your career you will undoubtedly enter into contracts – whether it is as “simple” as buying a piece of equipment or a musical instrument, or being booked to play at your local pub or club, or engaging a web designer to built your website. Perhaps more significantly you may be asked to sign a formal written agreement with a manager, a music publisher or a record label.  A contact is a legally binding agreement and can be enforced by the courts. This website does not offer formal legal advice and the information on this website should not be construed as legal advice. If you are entering into an agreement, in particular one which will have a long term impact on your career in the music industry, then it is important that you take proper legal advice from a qualified lawyer who has experience in the music industry and the legal system that applies to the contract. There are the names of some of the United Kingdom specialist lawyers listed on our ‘links’ pages and another…

“Eminen” digital royalty judgment ‘no legal precedent’ says UMG
Copyright , Record Labels / October 2010
USA

COPYRIGHT Record labels A US federal appeals court has sided with FBT Productions, the production team who helped launch Eminem’s career, in a dispute with Aftermath and its parent company, the Universal Music Group over digital music royalties. The U.S. Ninth Circuit Court of Appeals in San Francisco overturned a decision in the lower court, and has ruled  that the record label had to pay the producers FBT Production, a bigger cut for music sold online through downloads and mobile-phone ring tones than for the same music sold in stores. FBT had argued they had a right to a 50/50 split of profits with Universal on sales of digital music and ring tones through online retailers such as iTunes and Sprint as these ‘Master Licensing’ deals attracting the higher royalty. The contract did not specifically mention income from download stores like iTunes, or what share the artist (and therefore FBT) should get from such sales but Universal have been treating download sales as being equivalent to CD sales paying a lower rate of 12-20%% as if these were physical sales. FBT sued, moved for summary judgment, arguing that the Master Licensing provision should apply. The district court refused summary judgment,…

Bob Marley copyright claim against UMG dismissed – but digital royalty claim left open.
Artists , Contract , Copyright , Record Labels / October 2010
USA

CONTRACT / COPYRIGHT Artists, record labels This dispute concerned the ownership of the renewal term copyrights in certain pre-1978 sound recordings embodying the performances of Jamaican reggae artist, Bob Marley. The Sound Recordings were created pursuant to exclusive recording agreements between Bob Marley and the predecessor-in-interest (Island Records, now owned by UMG) to defendant UMG Recordings, Inc. The Plaintiffs argued that the renewal term copyrights in the Sound Recordings reverted to them under the Copyright Act of 1909 upon Bob. Marley’s death in 1981. The Plaintiffs also asserted claims for underpayment of royalties against UMG. But District Judge Denise Cote ruled that Universal Music holds the rights to Marley’s music, because Marley’s work was done on a “work for hire” basis: Judge Cote concluded that Marley’s recordings were “works made for hire” as defined under U.S. copyright law, entitling UMG to be designated the statutory owner and “author” of those recordings, for both the initial 28-year copyright terms and for renewals. Marley signed a number of agreements with Island including agreements in 1972,1974,1975 and 1992.  The 1972 Agreement states  “ The Artist shall during the period attend at such places and times as the Company shall reasonably require and shall render to the…

Police co-ordinate file-share raids across 14 European countries
Copyright , Internet / October 2010
EU

COPYRIGHT Internet The web was buzzing with news after police in 14 European countries launched a coordinated series of raids on suspected file-sharing network operations on Tuesday 7th September. Reports said that Belgian authorities spearheaded the investigation that led to the raids, although a substantial part of the police activity took place in Sweden, including a raid on Sweden’s PRQ in Solna, the new web host of whistleblower site WikiLeaks. Other raid included sites in Stockholm, Malmo,  Eskilstuna and on Umea University’s campus. TorrentFreak reports that other raids took place in The Netherlands, Belgium, Norway, Germany, Italy. Great Britain, Czech Republic and Hungary. The believed target of the raids is the file-sharing “Warez Scene” or the “Scene”. a loosely-affiliated group thought to be behind many  leaks of copyrighted material to the Internet and described as “, the network of individuals and servers at the top of the so-called ‘Piracy Pyramid’ “. In Sweden it is reported that four people are being questioned on suspicion of breaching copyright law. Servers and computers have also been seized. PRQ’s Mikaelo Viberg spoke to reporters and said that armed with IP addresses,  police officers turned up at PRQ’s premises “At 9:00 this morning, five…

GEMA fail to get injunctive relief against YouTube
Copyright , Internet , Music Publishing / October 2010
Germany

COPYRIGHT Music publishing, internet German collecting society GEMA have failed to get an injunction to force YouTube to take down videos containing one of 75 songs – the German songwriters and publishers collection society has been in dispute with YouTube over royalty rates for over a year now. After ongoing licensing talks between the collecting society and video site broke down in May, GEMA asked the German courts to issue an injunction to force the Google-owned site to remove any videos containing one of 75 songs owned by publishers represented by the collecting society. The society argued an injunction was needed now, pending other legal action, on urgency grounds because, given there is currently no licensing agreement between YouTube and GEMA, the writers of the 75 songs in question are losing money every time one of their videos is played. But, according to Billboard, the Regional Court of Hamburg, whilzt not passing judgment on GEMA’s wider copyright claim, said it was not convinced by the urgency argument so would not issue any interim injunctions. GEMA can, of course, proceed with other legal action against YouTube, but the 75 songs may continue to be accessed via the video site at present….

New books is a real Page earner
Copyright / October 2010
UK

COPYRIGHT All areas Robbie Williams co-manager Tim Clark told the Popkomm conference that the U.K.’s recently passed Digital Economy Act – aimed at curbing Internet piracy – was “laughable and unworkable” saying that “It allows ISPs to sit on their hands for longer, knowing they are off the hook,” claiming one major label CEO agrees with him that the Act is “a waste of time” and “is never going to work.” Clark said that “the truth is digital technology has driven a panzer division through copyright la,”  (an interesting choice of words given the location of the Berlin based event) saying “If 70% of the population are ignoring a law, it’s no longer a law – we have to figure out a new way of working with copyright.” Trent Reznor, Nine Inch Nails front man, has been at the forefront of creating new music business models for copyright which combine new media and traditional business models – offering free internet downloads of albums alongside premium internet products, limited edition CD and vinyl box sets, special merchandise and other paid for product – in an eclectic mix of free and paid for. Now Jimmy Page, the legendary guitar hero from Led Zeppelin, recently…

Swiss court holds that IP addresses are personal private data
Copyright , Internet / October 2010
Switzerland

COPYRIGHT Internet The Swiss Federal Court has ruled that software which identified the internet protocol (IP) address of unauthorised music uploaders broke the country’s data protection law. The court backed that country’s Data Protection Commissioner, who said that Logistep violated Switzerland’s Data Protection Act when it used the software. The IP addresses were personal data, the Court said, and processing that data without the knowledge or permission of the person concerned was a breach of the law, it said. The Court recognised the economic interest that copyright holders had in stopping the illegal sharing of material in which they had rights, but said that that interest did not justify what it called a significant intrusion into the privacy of each affected user. The status of IP addresses has been hotly contested in Europe, with some arguing that they are personal data as defined in the EU’s Data Protection Directive, and others arguing that though they are personal data in some circumstances, that is not always the case. A French court ruled earlier this year that a French music royalty collection society did not breach data protection law when using IP addresses and that the addresses were not personal data because…

UK content owners to bear brunt of Three Strikes costs
Copyright , Internet / October 2010
UK

COPYRIGHT Internet The UK government’s Department for Business, Innovation and Skills (BIS) has issued a press release “Rights holders to bear 75% of Online Digital Economy Act copyright infringement costs” detailing  how costs will be shared as part of theDigital Economy Act’s measures to tackle online infringement of copyright. The decision will see costs resulting from these measures split between rights holders and internet service providers (ISPs) at a ratio of 75:25, very much a victory for ISPs – content owners wanted a 50-50 split. The Government also announced no fee will be charged to consumers who want to appeal a notification. The costs sharing decision applies to both the notification and appeals process. Following serious consideration of the issue of appeal costs, it has been decided that no fee should be charged to internet subscribers who wish to use the appeal system to refute a notification. However as a free system risks the possibility of large numbers of unnecessary appeals, the Government will monitor the situation closely, and reserves the right to introduce a small fee at a later stage.  The decision will now be notified to the European Commission before being introduced in Parliament as a Statutory Order. Ofcom’s Online…

Coca-cola fail in bid to regain Five Alive URL
Internet , Trade Mark / October 2010
UK

TRADE MARK Internet The Coca-Cola Company has failed in an action  against  a UK individual who had registered the domain namewww.fivealive.co.uk . The case was heard by an independent expert under Nominet’s Dispute Resolution Service (DRS) Policy.  The respondent in this case was an individual named Paolo Ciuffa and the domain name was registered in his company’s name, Bo Cat, in 2004.  Coca-Cola argued that Mr Ciuffa had no legitimate interest in the domain name and they argued that the only reasonable conclusion to reach regarding the registration of the domain name was that Mr Ciuffa intended to capitalise on their goodwill and divert customers away from them.  They said the domain name was disrupting their legitimate business interests and amounted to an “abusive registration”.  According to Nominet’s DRS Policy, an abusive registration is one that takes unfair advantage of, or is unfairly detrimental to the complainant’s rights.  In his response, Mr Ciuffa claimed that he had registered the domain name with the sole intention of representing and promoting the music artist MC Five Alive.  He provided evidence in the form of a MySpace link and recent flyers from events which MC Five Alive had performed at.  He denied that it was an “abusive registration”. The appointed…

Bieber and Gaga no amused by comics, and sex dolls
Artists , Image Rights , Trade Mark / October 2010
UK

TRADE MARK / IMAGE RIGHTS Artists A comic book version of Justin Bieber’s life has irked the diminutive star. Unlike recently announced bio-pic film and photo-book projects, this output isn’t officially sanctioned. Now the comic’s publisher, Bluewater Productions, is being threatened with legal action by a lawyer representing both Bieber and Lady Gaga, who also had her life turned into a comic strip by the company back in June. According to WENN, lawyer Kenneth Feinswog has served the company with a cease-and-desist letter, threatening to take the matter to court, but the publisher is refusing to cease production, claiming it is well within its rights to produce the books. Bluewater’s Darren G Davis said: “We are 100% within our first amendment rights. We knew our rights on this before we jumped into the biography world. These are 100% biographies on their lives. We reach out to all the celebrities and some choose to work with us and some do not. If they do choose to work with us, we donate ads and money to a non-profit [organisation] of their choice. We offered the same deal to Bieber’s people”. Lady Gaga has also threatened legal action against a sex doll company for…

New webs forum opens for business with Tenenbaum blog
Copyright , Internet / October 2010
USA

COPYRIGHT Internet A new copyright web forum called Copygrounds has been launched by staff and students at the Department of Radio-Television-Film at the University of Texas. The first blog is a fascinating interview with Joel Tenenbaum, who has become a poster boy for illegal filesharers around the world after being sued by the Recording Industry Association of America (see previous blogs here!). Copygrounds describes itself as “an academic discussion forum and digital media platform which focuses on the technological changes now taking place within contemporary media systems. The dynamics of technological development have been accompanied by numerous antagonisms and outright conflicts between parties with conflicting interests. These antagonisms and conflicts are the particular target of our analysis.” The Tenenbaum interview is posted by Debbie Rosenbaum. Debbie is currently completing a dual law and business degree at Harvard Law School and Harvard Business School and is a member of the team of Harvard Law School students who, under the guidance of Professor Charles Nesson, mounted Tenenbaum’s defence. There is quite a large blogging team with some pretty impressive CVs, so a site well worth watching. The site is open and welcomes public commentary – but also says “as this is primarily…

Plastic Bertrand never sang on his biggest hit
Artists , Copyright , Record Labels / September 2010
Belgium

COPYRIGHT Record labels, artists Belgian performer Plastic Bertrand, whose real name is Roger Jouret, has admitted that he was not the singer on his 1977 hit ‘Ça Plane Pour Moi’. French composer and producer Lou Deprijck has long claimed that his was actually the voice on the track and now expert evidence presented to a Belgian court has confirmed this – with a linguist commissioned by the judge saying that the person who sang the song did so in a specific regional accent of northern France (where Deprijck comes) which could not have been replicated by Belgian-born Jouret. The judgement read: “The way the phrases end on each record show that the song could only have been sung by a Ch’ti – otherwise known as someone from the Picard region of France. It could therefore not have been Plastic Bertrand – who was born in Brussels – and was surely Mr Deprijck”. That said, it appears that in 2006, the Brussels Court of Appeal had already ruled that, although Deprijck may indeed have been the person who sang the vocals, Jouret was the “legal performer” of the song because his face had appeared on the single’s artwork and he signed the…

Pirate Bay founder banned from running service
Copyright , Internet / September 2010
Sweden

COPYRIGHT Internet Pirate Bay co-founder Peter Sunde has been banned from ‘operating’ The Pirate Bay by a Swedish court. Last year he and three others were sentenced to a year in prison and a fine of £2.4 million after being found guilty of various copyright crimes in relation to their involvement with the rogue BitTorrent site. Though none of the men have served any jail time or paid any of the damages as yet. An appeal hearing is due to take place in September. The new separate ruling ordering Sunde not to work on The Pirate Bay follows a similar court decision relating to Svartholm and Neij made in May, which banned them from working on the file-sharing service also. All three men face fines of just under £45,000 if they fail to comply. Sunde has appealed the decision. http://www.thelocal.se/28002/20100726/ http://musically.com/blog/2010/07/29/sunde-banned-from-running-the-pirate-bay-while-finnish-isps-get-set-for-warning-letters-to-filesharers/

Convicted pirate ordered to pay up
Copyright , Record Labels / September 2010
UK

COPYRIGHT Record labels A judge at Snaresbrook Crown Court has ordered a convicted music pirate to pay record label trade body the BPI £170,000.  Farrah Nissa was jailed for copyright crimes in 2008 for his role in running a counterfeit CD operation which sold an estimated 1.2 million bootleg discs. The order was made under the Proceeds of Crime Act 2002. Nissa’s partner in crime had already been ordered to pay £70,000 following similar proceedings last year. The money will be shared out between the BPI’s members. http://www.ifpi.org/content/section_news/20100726.html

Hendrix covermount damages determined
Artists , Copyright , Media , Performer's Rights / September 2010
UK

COPYRIGHT / PERFORMERS RIGHT Artists, media By Hugo Cox at www.the1709blog.blogspot.com On 20 September 2006 the Sunday Times was distributed with a covermount CD of Jimi Hendrix’s legendary last UK concert at the Albert Hall in 1969. Experience Hendrix (Hendrix’s family’s company) and The Last Experience (the company of Jerry Goldstein, who recorded the concert) successfully asserted title to the band’s performance rights and the copyright in the recordings of the concert in a summary judgment in 2008. The question Sir William Blackburne has decided today is what damages Times Newspapers should pay. Blackburne J was clear the defendant did have reasonable grounds to know that it was infringing as Experience Hendrix had challenged them prior to publication, though the paper was not recklessly indifferent the problem – so damages would not be increased by reference to flagrancy or ‘moral prejudice’. Article 13 of the Enforcement Directive (2004/48/EC) sets out different damages regimes depending on the defendant’s knowledge, though it seems unclear that this altered the judge’s calculations. At the time of the covermount the claimants were themselves intending to release a film of the concert plus accompanying DVD, CD and merchandising. Following the covermount this project was put on hold because (1) the claimants…

Beach Boys want California credit and cash
Copyright , Music Publishing / September 2010
USA

COPYRIGHT Music publishing  7Rondor Music, which owns the copyright to the Beach Boys classic hit “California Girls,” has sent a letter to Capitol Records demanding that it makes songwriting credits and pay songwriting royalties for the Katy Perry summer hit “California Gurls“. The credits and payments are for Brian Wilson and Mike Love, the writers of the 1965 classic. The two tracks appear quite different but at the end of Perry’s 2010 hit, rapper Snoop Dogg says, “I really wish you all could be California girls” prompting comparison “I wish they all could be California girls” in the Beach Boys’ refrain. http://www.reuters.com/article/idUSTRE6745S720100805 http://www.bbc.co.uk/news/entertainment-arts-10891016

AEG and Live Nation join Universal in fight against counterfeit merchandise
Live Events , Trade Mark / September 2010
USA

TRADE MARK Live events industry AEG Live and Live Nation have joined Universal Music’s merchandising company Bravado lead in launching legal actions in the US courts with so-called ‘John Doe lawsuits’ in a bid to force law enforcement officials to crack down on illegal merchandisers. Universal took the lead with actions to protect Lady Gaga official merchandise at venues where the star vas playing, accusing potential bootleggers of infringing their trademark rights. The aim of the lawsuit was to give the police the power to seize counterfeit goods being sold by bootleg merchandisers – and even to obligate them to do so. AEG Live have now filed a similar John Doe lawsuit ahead of their Mile High Music Festival in Denver, while Live Nation went down a similar route to stop bootleg Ozzfest merchandise being sold around the Ozzy Osbourne festival. http://newsblog.thecmuwebsite.com/post/US-music-firms-sue-John-Doe-to-tackle-merch-bootleggers.aspx http://ipkitten.blogspot.com/2010/08/letter-from-amerikat-no-trade-mark.html

Amazon prices “devalue” music
Artists , Copyright , Record Labels / September 2010
USA

COPYRIGHT Record labels, artists, retail Laura Ballance, the co-founder of Arcade Fire’s US label, Merge Records, has accused Amazon of “devaluing music” after the e-tailer decided to sell the download version of the band’s new album, ‘The Suburbs’, for just $3.99. The album, which shifted 156,000 copies in its first week, went to number one in the USA but Ballance says that 97,000 units were sold  at the $3.99 price point which Balance says “devalues”. ‘The Suburbs’ went to number one in the UK as well and Amazon UK also sold the album at a discounted price of £3.99 during its first week of release. http://www.thedailyswarm.com/headlines/merge-amazons-399-arcade-fire-price-s-not-us/

Truth in Music laws take a knock in court setback
Artists , Trade Mark / September 2010
USA

TRADE MARK Artists The State of New Jersey has been handed a setback in a case involving the Truth in Music Act, though advocates of the law said Monday that the ruling would not materially affect its effectiveness.  The Act is designed to protect both original band members and the audience against touring acts using heritage band names but containing no original members or no connection with original line ups. The case stems from 2007, when then New Jersey Attorney General Anne Milgram sought a restraining order to force the groups to call themselves “tribute” bands when they performed in Atlantic City. The groups sued, and the state eventually conceded in U.S. District Court that it had enforced the law incorrectly.  In the federal case, the state Attorney General’s Office contended that the unregistered trademarks held by Live Gold, the promoter for the groups performing as the Platters and Coasters, prevented them from performing unless they billed themselves as “tribute” bands. U.S. District Judge Dickinson Debevoise rejected the argument and ruled that an unregistered trademark, if found valid, had the same rights as a trademark registered with the U.S. Patent and Trademark Office. Whilst neither of the bands who went…

Copyright Tribunal asked to look again at VPL rates
Copyright , Internet / September 2010
UK

 COPYRIGHT Broadcasting, internet The High Court has decided that the Copyright Tribunal did not have a sound basis for the royalty rate it set in a dispute between rights holder VPL and a music TV broadcaster CSC . Mr Justice Floyd said that the Tribunal set a new rate on spurious grounds and misunderstood evidence in the dispute between Video Performance Ltd (VPL) and CSC Media Group about how much in royalties CSC’s seven pop video TV stations should pay VPL. At the heart of the case was a disagreement over thae rates the broadcaster pay – CSC said that the 20% of revenues it paid to VPL was too high, whereas VPL argued that it was fair and was the basis of other licensing deals. CSC wanted to pay 8.5% and claimed that a fair comparison was with the radio industry, where the highest rates were 5%. The percentages were pro-rated, meaning that they applied to a proportion of income equal to the proportion of broadcast material that was licensed through VPL and the method of pr0-rating formed a second part of the appeal, brought by VPL after the Tribunal set the rate at 12.5% of attributable revenues for…

EMI takes down Newport
Copyright , Internet , Music Publishing / September 2010
UK

COPYRIGHT Internet, music publishing The spoof of Jay-Z and Alicia Keys’ ‘New York State Of Mind’, the now near legendary ‘Newport State Of Mind‘, which has had over two million views on YouTube in its first two weeks has been taken down after EMI Music Publishing submitted a copyright claim against it. US readers might be surprised to learn that the UK’s concept ‘fair dealing’ does not extend as widely as the US doctrine of ‘fair use’ and it is unclear how far (if at all) parody is protected. Andrew Gower’s 2006 review of the UK’s IP laws in 2007 recommended a new exception for parody and satire – as yet not implemented. See Rhodri Marsden’s article in The Independent 19th August 2010 http://www.independent.co.uk/life-style/gadgets-and-tech/features/rhodri-marsden-a-parody-is-not-funny-in-the-eyes-of-the-law-2055157.html

RIAA vs The Radio Industry – what’s phones got 2 do with it?
Copyright , Record Labels / September 2010
USA

COPYRIGHT Broadcasting, record labels The long-running dispute between US radio broadcasters and the recording industry over the royalties broadcasters should have to pay to use recorded music has taken an unexpected turn with a proposed settlement where a proposed new federal mandate would require all new mobile phones to come with a built-in FM radio chip. The National Association of Broadcasters (NAB) has long been fighting any proposals that would require radio stations to pay  royalties to record labels and performers for the right to play their sound recordings on the air. The US unusually has no current legal requirement for a royalty for the use of recordings for FM stations – although now in the US internet, cable and satellite radio services and stations do have to pay an equivalent of the UK’s PPL royalty: Broadcasters have long argued that airplay provides free promotion and drives music purchases and concert ticket sales. The new idea is to push forward a proposed settlement that would establish a tiered system of royalty payments that would bring in a total of roughly $100 million for the music industry. Commercial radio stations with more than $1.25 million in annual revenue would pay royalties…