Sugarland could face lawsuit over Indiana stage collapse
Health & Safety , Live Events / October 2011
USA

HEALTH & SAFETY Live events industry   One month after six fans died in the collapse of stage rigging at the Indiana State Fair in America, the family of a 22 year old fan may sue the band whose concert she was there to see. Sugarland have been named in a legal notice by Jennifer Haskell’s parents and sister, charging them with “gross negligence and/or recklessness” over the disaster. Thanks to Cass Williams for alerting us to this update. Haskell and her friend Alina Bigjohny were both in the front row on 13 August, where Sugarland were booked as headliners for the annual State Fair. But as high winds lashed the site, the mainstage scaffolding began to buckle. Haskell, Bigjohny and others were crushed when 40,000lbs of lighting, speakers and other equipment collapsed into the crowd. Although Indiana’s attorney general, Greg Zoeller, has announced a $5m fund to benefit victims of the disaster, several families plan to sue the organizers and others involved with the event. Now, Sugarland themselves are being blamed for the incident, together with their “members, agents and employees”. The Grammy-winning country band are one of 15 defendants named in the Haskells’ filing, seeking damages for the 22-year-old’s injuries and “wrongful…

UK live sector gets yet another licensing consultation
Licensing , Live Events / October 2011
UK

LICENSING Live events industry The UK music has welcomed plans to cut live music bureaucracy and in a bid to help new talent and promote economic growth, the UK Government has launched (another) consultation seeking to deregulate entertainment licensing in the UK. At present, under terms of the Licensing Act 2003, any venue or event looking to promote live music, no matter how small, must apply for permission from their local authority. Reports from the Government-commissioned Live Music Forum (2007) and the Culture, Media & Sport select committee (2009) both concluded that such an approach has proved detrimental to grass roots live music. When Government last consulted on the issue, in early 2010, 74% of respondents who expressed an opinion said that they favoured an exemption for small venues. This was followed by a Private Members Bill, instigated by Lord Tim Clement-Jones, and seeking to exempt venues under a 200 capacity, which is currently awaiting the report stage in the House of Lords. In March 2011, this Bill gained support across the political spectrum. Feargal Sharkey, chief executive of UK Music said: “Earlier this year, UK Music highlighted how large-scale live music attracts £1.4bn of tourism to the UK. However, the success…

Zappa mark dispute continues
Artists , Trade Mark / October 2011
Germany

TRADE MARK Artists The ongoing dispute between the Zappa Family Trust and fans of Frank Zappa who organize the annual Zappanale festival in Germany continues. The dispute is over the use of the iconic frontman’s name and image and the use of the word mark ZAPPA, a registered Community Trade Mark. The Trust, whilst owning tne mark, had only used the word “Zappa” as part of the “official” Zappa website URL, which was operated from the US. Reversing a decision of the Regional Court of Düsseldorf, the Higher Regional Court of Düsseldorf (20 U 48/09) held that this use did not amount to genuine use of the trade mark (Article 15(1) CTMR). The court nonetheless stressed that use of a mark in a domain name as such may be sufficient for constituting genuine use – just not in this case because the public would consider the use of the word Zappa as a general descriptive reference and would not understand it as a reference to the trade mark owner. According to the latest report in Stern, the Higher Regional Court had also held that the Zappanale music festival could still be held and that the Zappanale organizers were allowed to use…

Madonna’s right to ‘Material Girl’ in doubt
Artists , Trade Mark / October 2011
USA

TRADE MARK Artists A legal dispute over the use of the “Material Girl” trade mark  will proceed to court in the USA after a judge refused a request by Madonna’s legal representatives for summary judgment in her favour against   LA Triumph, who took legal action against Madonna after she launched a Material Girl fashion line last year. LA triumph argued that they had been making Material Girl clothing since 1997 and owned the registered trademark. Madonna’s representatives  asked a judge to dismiss the case  arguing that the singer had been associated with the term ‘Material Girl’ since the release of the song of the same name in 1985, and that her businesses had sold over £85 million worth of t-shirts and other products bearing the name over the years. However, Judge James Otero said there were some fundamental flaws in the arguments of Madonna’s lawyers, not least that the release of a track with a name does not constitute registering the name as a trademark, and that selling pop merchandise carrying a song’s title does not mean you are trading in the fashion industry using that title as a mark. The judge concluded that the “defendants’ argument that Madonna created…

The sweet smell of success for Revelation as Prince sniffs at damages award
Artists , Contract / October 2011
USA

CONTRACT Artists, Merchandise In November 2008 diminutive poster Prince was the subject of a lawsuit from Revelations Perfume and Cosmetics Inc. who took action against the singer and Universal Music Publishing Group for damages, claiming they failed to help push a fragrance inspired by his 2006 album 3121. They were seeking damages of $100,000. Prince did not file a defence to the claim and Prince’s then lawyer withdrew,saying his firm has not been paid ‘for months’ and that Prince has dialed ti compy with discovery obligations. The Referee conducting an investigation into damages, Louis Crespo, has now awarded the perfume company $3.9 million to cover the expenditures it had made in reliance on Prince’s commitment to promote the perfume, 3121. Mr. Crespo, however, rejected Revelations’ claim for an additional $3.4 million in lost profits, finding they were too “speculative.” He also denied Revelations’ assertion that it was entitled to punitive damages. Revelations’ lawyer said he will ask Manhattan Acting Supreme Court Justice Bernard J. Fried to confirm the referee’s award next week. Prince’s attorney has said they will oppose this. The licensing agreement was signed on Dec 2nd 2006, according to the complaint, but immediately the complaint says that Prince started backtracking saying…

Elvis Estate sues for unpaid royalties
Artists , Contract , Record Labels / October 2011
Germany

CONTRACT Artists, record labels Elvis Presley’s estate is suing Arista Music in Germany for $9m (£5.6m) in unpaid royalties dating back to 2002 for ringtones, downloads and apps. The lawsuit also alleges the label (then RCA) exploited Presley in a $5.4m (£3.3m) 1973 “buyout” of his catalogue. It claims that, as a result of the contract, Presley went on to receive just $10 (£6) a year for worldwide rights to each of more than 1,000 recordings and the estate is seeking  a share of future revenue. It seems that under the 1973 agreement, RCA bought the rights to Presley’s back catalogue – with the $5.4m fee split evenly between the singer and his manager, Colonel Tom Parker – parker famously took a 50% management commission. The Presley estate says the singer’s annual payment for each song of about $10 is “conspicuously disproportionate” to the revenue RCA made from master recordings. As well as seeking $9m (£5.6m) in unpaid royalties, the estate wants a share of future revenue until 2023 – 50 years after the deal was struck and the year when Arista’s copyright expires under German law. The estate says it wants “equitable remuneration” asking the court to redress the deal…

Facebook Music – is this really the future of music?
Copyright , Internet / October 2011
EU
USA

COPYRIGHT Internet OK, this isn’t strictly about copyright – its about the launch of the new Facebook Music service – which seemed to leave most cyberworld commentators somewhat under-awed. But I wonder if they (and the music industry) are missing the point. Its great to have a internet behemoth like Facebook promoting legal music platforms (isn’t it ?) – but – isn’t the real value of music being missed again? Facebook’s new music service seems to be all about data collection – with the music services (or the ‘copyright’ element) just the bait to get users to share information with Facebook. One of cyberworld’s commentators, Gizmodo, tells us that Facebook has failed “To Let Fans Share Music Across Platforms”. But of course Facebook has never (as yet) claimed to be a content provider itself. Instead, head honcho Mark Zuckerberg wants Facebook Music to be the “connective tissue” needed by music fans and the music industry alike, so that people would be able to share music with each other without friction – and without breaking the law. How will it do this? Well  Facebook will let you see what your friends are listening to in a real-time “Ticker” feed that appears…

PPL review sparks outrage
Copyright , Live Events / October 2011
UK

COPYRIGHT Live events industry Live UK magazine reports that venue owners and club promoters are horrified at the review being conducted by Phonographic Performance Limited  – PPL – the body that collects royalties due to record labels and recording artists every time a sound recording is played in public. PPL is also reviewing its live venue licences, which, it says, haven’t been amended since 1990. There is an underlying suspicion that any review will result in an upwards  hike in charges, but smaller venue owners and promoters are angered at some of proposed new rates put forward as part of the consultation which they say might lead to increases of 2000%. Live UK says that the rates being proposed would mean a three hour club night attended by 500 people, which would currently expect to pay £37.21 in royalties, could have to pay in excess of £600. PPL has stressed that any figures shared with licensees are as part of its consultation and that these are proposals intended to initiate debate. Some promoters admit that they suspect the collecting society really envisages that final rates – after consultation and negotiation – will actually be quite a bit lower. However, others have…

Tenenbaum damages reinstated
Copyright , Internet , Record Labels / October 2011
USA

COPYRIGHT Internet, record labels In the see-saw world of US copyright damages for illegal downloading and file-sharing, a federal appeals court has reinstated a ‘hefty’ $675,000 judgment against Boston University post graduate student Joel Tenenbaum, who admitted to downloading music on Internet file-sharing sites after a judge had reduced the previous jury award at the same level by 90%. The US Circuit Court of Appeals for the First Circuit rejected Tenenbaum’s assertions that he did not violate copyright protection laws because he was a consumer, not someone looking to make a profit from downloading. The court also vacated  the US District Court’s decision to reduce the total charges to $67,500, because Judge Nancy Gertner found the original figure was unconstitutionally excessive. The court instead reinstated the jury’s figure of $675,000 criticising Judge Gertner for disregarding procedure in reducing the award. The case involves 30 infringements of copyright law which attracts maximum statutory damages of $150,000 per violation, or a potential maximum in this case of $4.5 million. In the other leading case involving single mum Jammie Rasset Thomas (Capitol Records v. Thomas-Rasset) Judge Michael Davis rejected a jury’s damages award of $1.9 million through both remittitur and on constitutional grounds, and…

ERA calls for DEA implementation, Hunt tells ISPs to be more responsible
Copyright , Internet / October 2011
UK

COPYRIGHT Internet Paul Quirk, Chairman of the Entertainment Retailers Association has  called on government to speed up the implementation of the controversial copyright provisions in the Digital Economy Act, arguing that ongoing delays in launching “three-strikes” system contained were costing the British music and DVD industries millions. Quirk added that since the DEA was passed into law in June 2010 the annual value of UK music and video sales has declined by £250 million, and that he believes a significant portion of that loss was down to the ongoing growth of online piracy. Referring to the implementation of the DEA’s ‘graduated response’ process, Quirk told his organisation’s AGM yesterday: “The best information we have is that the first letters to suspected file-sharers will not be sent out until the second half of 2012 and disconnections of persistent pirates will not happen before 2013. This is unacceptable. We need action on internet piracy – and we need it now. Not all of the sales decline is down to piracy, but a substantial part of it certainly is and every further day of delay will only make those losses greater”. UK Media regulator OfCom, who are set to manage the anti-piracy elements…

EMI loses German ISP blocking case
Copyright , Internet , Record Labels / October 2011
Germany

COPYRIGHT Record labels, internet Following on from a fairly unsuccessful attempt to block digital cloud locker service MP3Tunes in the USA, EMI has now failed to force a German ISP to block access to file-sharing service eDonkey. The court in Cologne ruled that the net firm HanseNet was not liable for the actions of its customers in accessing Russian illegal file swapping services. In the UK in 2011 the Motion Picture Association was more successful, with the High Court granting an injunction ordering BT to block access to Newzbin2, an online community that provides links to manifold unlicensed content, and which relocated its base to Sweden after losing an earlier infringement lawsuit.  In the L’Oreal v Ebay case (2011) the European Court of Justice, looking primarily at trade mark issues, decided that a service provider such as eBay could be liable for users infringements under national law, unless it can rely on an exemption from liability provided by Directive 2000/31 on electronic commerce. The ECJ explained that such an exemption would be subject to the following conditions being met: (i) the operator does not play an active role, i.e., it does not know or control the data provided by its customers; (ii) a diligent economic…

EU agrees to term extension for sound recordings
Copyright , Record Labels / October 2011
EU

COPYRIGHT Record labels After a longish silence in Europe, the idea of copyright term extension for sound recordings was suddenly well and truly back on the agenda in Europe and the extension of the copyright term for sound recordings from 50 years 70 years was agreed by the EU on the 12th September, following an earlier meeting of the European Union’s Committee of Permanent Representatives. The European record industry has been lobbying for some time for the sound recording copyright term to be extended, noting the difference between European and US copyright terms (the US has a potential 95 year term for sound recordings), and difference with the term enjoyed by music publishers and songwriters  – the copyright term in the melody and lyrics of a song is life of author plus 70 years. Andrew Gower’s 2006 Report on IP was seemingly unconvinced by the arguments put forward by the record labels but the last (Labour) Government seemed to support term extension, mainly based on pleas to protect the pensions of ‘aging session musicians’ – and Cliff Richard. The matter moved to Europe with mixed results and whilst both the European Commission and European Parliament backed an extension, in 2009…