German court gives partial victory to GEMA in case against YouTube
Copyright , Internet / May 2012
Germany

COPYRIGHT Internet In a provisional victory for content owners a court in Hamburg on Friday ordered Google to install filters on its YouTube service in Germany to detect and stop people from gaining access to material for which they do not own the rights. The case was brought by German music collection society GEMA. The judge, Heiner Steeneck, agreed in his ruling that Google was not directly responsible for the uploaded material: YouTube will only liable for copyright infringing videos uploaded by its users where the portal does not follow certain control and behavioural duties. Only after the portal owners have been alerted of the copyright infringement will the duty to block the video without delay and to commit to measures that are suitable to prevent further right infringements. There was, however, no duty for YouTube to control and check all videos that had already been uploaded to the platform. “This is a victory along the way to what will be a very important case,” Peter Hempel, a spokesman for GEMA, saying “This case, when it is eventually decided, will set a precedent for the legal responsibilities of online platform operators such as Google in Germany.” The judge rejected a request…

Musicians should protect their finances and art: ilive
EU
USA

COPYRIGHT Artistes, record labels, music publishing ARTICLE LINK:  Stephen Hollis, senior associate at law firm Adams & Adams encourages established and aspiring musicians to check out their recording label before they sign, and compares the choices made by Whitney Houston and Michael Jackson and the resulting state of their posthumous fortunes, and in particular compares revenue streams from record labels and music publishers and the importance of the latter. http://www.timeslive.co.za/ilive/2012/04/03/musicians-should-protect-their-finances-and-art-ilive

RIAA – the best way to kill piracy is innovation
Copyright , Record Labels / May 2012
USA

COPYRIGHT All areas, record labels   ARTICLE LINK:    This from TorrentFreak: “It took more than half a decade, but there’s finally something we can agree on with the RIAA. After suing college students, shutting down LimeWire and pushing for draconian anti-piracy laws, the RIAA now finally admits that the best answer to illegal downloading is innovation. A milestone, but unfortunately also a message that is bundled with the usual creative statistics that have to be debunked” ….. “Today the RIAA takes this notion back – “The single most important anti-piracy strategy remains innovation, experimentation and working with our technology partners to offer fans an array of legal music experiences,”. More here: http://torrentfreak.com/riaa-innovation-is-the-best-way-to-kill-piracy-120412/

China’s proposed copyright reforms prompt widespread comment
Copyright / May 2012
China

COPRIGHT All areas The National Copyright Administration in China has published a preliminary amendment draft to revise China’s copyright laws (Copyright Law of the People’s Republic of China (modified draft)) on its official website (on March 31st). The draft has been posted to “collect public opinion and constructive feedback”, and there has already been a vocal response as bloggers, songwriters and music producers (amongst others) digest the news – and many have singled out Articles 46 and 48 for criticism. The amendment to Article 46 (which governs infringement of copyright) is interesting and says that any record producer who acts pursuant to Article 48 shall have the right to make recordings of musical works owned by another, without needing authorisation from the original owner, provided that the content had been published for three months or longer. The existing law says (and I quote from a press article) “no such work may be used where the copyright owner declares that use is not permitted”. You can see the current wording of Article 46 and Article 47 here. Now if I understand that correctly surely that’s what would be called ‘statutory licensing’? However there is some confusion as a number of the press…

Is it legal to sell digital downloads?
UK
USA

COPRIGHT Internet, record labels ARTICLE LINK: More on the recent debate about the legality of consumers re-selling digital downloads they have purchased (currently being tested in the US courts in the ‘Re-Digi’ case) here from a UK perspective with reference to the new European Consumer Rights Directive and a potential revised definition of ‘tangible goods’? http://www.computeractive.co.uk/ca/consumer-rights/2142389/legal-sell-digital-downloads

Idol winner faces royalties claim from ex-bandmates
USA

COPYRIGHT Artistes, music publishing Former ‘American Idol’ contestant Chris Daughtry says he is “very hurt” by claims by former band mates over what they say are unpaid royalties and unacknowledged song writing credits for four songs. After appearing on the 2006 series of ‘Idol’, Daughtry formed a band called Daughty but he is now facing a claim from former members of Absent Element, Daughtry’s pre-Idol band. Ryan Andrews, Scott Crawford and Mark Perry claim that four songs on the first Daughtry album were co-written by them before they disbanded, and that their former frontman previously acknowledged this fact and promised them a share of any revenues the songs generated. The lawsuit claim “constructive fraud, breaches of fiduciary duty, unfair trade practices and other deceptive and wrongful conduct”. Daughtry denies that his former bandmates were in any way involved in the writing of the songs saying “I am very hurt by these false accusations. The songs listed in this lawsuit were written solely by me and no one else and at this time, I have no further comment”. North Carolina News & Record / http://www.thecmuwebsite.com/article/one-time-idol-finalist-sued-by-former-bandmates/

Decision looms on frontman’s claim to return of Village People copyrights
USA

COPYRIGHT Artistes, music publishing It seems that U.S. District Judge Barry Ted Moskowitz will be deciding Victor Willis’s claim against his music publisher sooner rather than later, possibly by the end of this month.  The ex-lead singer of the Village People, is seeking to regain ownership of U.S. copyrights in the group’s hits, including “Y.M.C.A.,” “In the Navy” and “Go West” from music publisher, Scorpio Music SA. The claim is under 1976 US provisions that allow songwriters to regain control of their works after 35 years. The Songwriters Guild of America said the outcome was “critical to whether songwriters and other creators will be enabled on both a legal and a practical basis to pursue and enjoy their statutory rights, or whether publishers will be allowed to frustrate those rights through a protracted-litigation strategy” in court papers supporting Willis. Scorpio have said Willis can’t terminate the rights to the Village People songs because they are “joint works written by more than one person.” and that copyright law “unambiguously requires the agreement of the majority of authors” to invoke the right of termination. French producers Henri Belolo and Jacques Morali who created the Village People in 1977 are listed with Willis as the…

Final agreement on new digital rates
USA

COPYRIGHT Internet, music publishing More than two decades after the first song went online, a mechanical royalties settlement has been reached that acknowledges some of the new business models digital music has spawned. The newly reached deal pretty much keeps existing rates for CDs and downloads, but it also adds five new categories. Three trade groups were signatories to the settlement, which now goes forward for approval by the U.S. Copyright Royalty Board: the Recording Industry Association of America (RIAA), National Music Publishers’ Association (NMPA) and Digital Media Association (DiMA). If approved, which is expected, the agreement will run from 2013 TO 2017.  The five new bands of royalties apply to paid locker services; free cloud storage that comes with a purchased download; mixed bundles of content such as streamed music in a mobile phone package; services with a limited amount of interactivity; and music that comes in a combined package, like a free download with purchase. The current rate for downloads and CDs stays at 9.1 cents and 24 cents for ringtones. http://www.the1709blog.blogspot.co.uk/2012/04/new-us-agreement-for-digital-and-mobile.html

Red Alert for the Pirates
Copyright , Internet / May 2012
Netherlands

COPYRIGHT Internet It looks like the principles behind SABAM v Netlog and more importantly SABAM v Scarlet might be tested soner rather than later – and the testing might be done by none other than the Pirate Party in the Netherlands who have been taken to task by anti-piracy grup BREIN. The Scarlet decision by the ECJ (on a referral from the courts in Belgium) decided inter alia that the fundamental rights enshrined in EC Directives (2000/31, 2001/29, 2004/48, 95/46 and 2002/58) must be interprested as precluding an injunction made against an internet service provider which requires it to install a system for filtering all electronic communications …. which applies to all customers indiscriminatly. Netlog similarly held that a filtering system that would require the owner to carry out general minitoring of information stored on its servers would be prohibitedby Artivle 15(1) of the E-Commerce Directive. In the Pirate Party case, The Dutch rights group had successfully secured a web-block injunction against the Pirate Bay itself January, on the ground that the Pirate Bay was liable for the copyright infringement many of its users undertook. The injunction named two internet service providers, Ziggo and XS4ALL, and BREIN is now pursuing…

Tupac Back?
USA

COPYRIGHT / TRADE MARK Live events industry, record labels, broadcasting The big talking point from Coachella 2012 was the technological resurrection of the late Tupac Shakur – and talks are underway to take the digital West Coast rap legend on tour. Shakur made his first on-stage appearance since being murdered in 1996 thanks to the technological wizardry of Digital Domain and the practicalities were handled by Philip Atwell of Geronimo Productions and Dylan Brown of The Yard. Immersive technology solutions provider AV concepts executed the Dr Dre led project. The ultimate revival show possibility was reported following headline appearances by Dr. Dre himself and Snoop Dogg with the virtual Shakur in a show that also featured appearances from Eminem, 50 Cent, Wiz Khalifa and Warren G. US attorney Don Passman (author of All You Need to Know About The Music Business) told Billboard that the performance from Tupac in the songs “Hail Mary” and “2 of Amerikaz Most Wanted” was  “unique” but also explained that the use of the image “didn’t come for free” and that the final digital reproduction that was used on the stage “had to have started with some image of Tupac, and somebody would own that image” adding that…

Kiwi third strikes are out
Copyright , Internet / May 2012
New Zealand

COPYRIGHT Internet New Zealand’s ‘three strikes’ legislation which was introduced last September and which sees alleged Kiwi file-sharers monitored, warned, and eventually punished for their infringements has now reached the final phase  with the first so-called ’3rd strike’ issued. The ‘enforcement’ notices were delivered on behalf of the music industry although commentators noted that even after more than 6 months, their movie industry counterparts are yet to send even one initial warning. Internet users who are discovered uploading copyright material are first sent two warnings via their ISP. On receipt of a third, under the “Skynet” legislation, copyright holders can take the Internet account holder to the Copyright Tribunal where they face hefty fines. The Copyright (Infringing File Sharing) Amendment Act 2011 had a tortuous path before implementation. Argument, counter-argument and intense lobbying from the copyright industries preceded its introduction in September last year. NZ ISPs TelstraClear and Orcon have both confirmed that they have sent third and final “enforcement” warnings to customers, delivered on behalf of RIANZ. The alleged music pirates now have a week from the date of the notice to lodge a dispute. Failure to do so could lead the individual to be referred to the Copyright…

Where next with EU copyright law?
Copyright / May 2012
EU
USA

COPYRIGHT All areas On the 1709 Eleonora Rosati gives a detailed report back from the Fordham IP Conference in the USA which this year focussed on the current state of affairs in the EU, and Eleonora starts with the views from the European Commission, Head of Unit – Copyright, DG Internal Market & Services Maria Martin-Prat first who recalled that in the 1990-2000s copyright harmonisation occurred whenever this was necessary to ensure the proper functioning of the internal market. This objective is and remains at the centre of attention when it comes to legislative initiatives. At the moment, said Martin-Prat, the priority of the Commission is to facilitate licensing across the EU. Interestingly enough, this implies facing the issue of territoriality. In any case, the establishment of EU-wide licensing system is not going to affect the territoriality of Member States’ copyright laws. This is because territorial rights do not necessarily imply territorial licensing, explained the Head of Unit. This said, the Commission’s efforts are directed at tackling five areas of copyright. These include improving the functioning of collective licensing and management and, possibly, setting out an extended collective licensing system; favouring mass digitisation of works and facilitating the use of out-of-commerce works,…

European festivals launch standard contract terms
Contract , Live Events / May 2012
EU

CONTRACT Live events industry YOUROPE, the European festivals organisation that has a membership of over 80 festivals across Europe, has announced that 22 of its members will be introducing standard artiste booking terms for the 2012 festival season. The new terms cover areas such as force majeure, cancellation, insurance, security, the use of pyrotechnics and lasers, noise limits, curfews and payment terms and are designed to set out basic standards that festivals and performers have to adhere to. The association also said it was introducing simplified booking contracts for emerging talent with General Secretary Christof Huber saying “It was the wish of many of our members to create these Standard Terms for European festivals. It should make life easier for festivals as they will have standard terms for important topics, rather than a number of contract terms which they can’t fulfil“. The standard terms resulted from a series of meetings in Hamburg, at Eurosonic in Groningen in the Netherlands and finally in London in March and YOUROPE were advised by UK lawyer and Music Law Updates Editor Ben Challis, and insurance broker James Dodds (Doodson Entertainment). Participating member festivals include Melt! (Germany), Exit (Serbia), Sziget (Hungary), Oya Festival (Norway), Open…

Bill Graham estate still in the courts
Artists , Probate / May 2012
USA

PROBATE Artistes, merchandise David Graham and Alexander Graham-Sult, the sons of the late rock impresario Bill Graham, who accused their father’s executor Nicholas Clainos, former president of Bill Graham Enterprises,  of cheating them out of millions of dollars’ worth of music memorabilia  have been ordered instead to pay more than $500,000 in legal fees by a judge who found their suit meritless. U.S. District Judge Claudia Wilken ruled in June 2011 that the alleged fraud was actually an above-board transaction that had been disclosed to the sons’ lawyer in 1997. She also said the suit was filed more than a decade too late. Now Judge Wilken has ordered Graham’s sons to pay $146,000 to Clainos, $240,000 to a law firm that had represented Graham’s estate, and $138,000 to the Bill Graham Archives, another defendant in their lawsuit. The Judge said that the suit had no chance of success and targeted Clainos’ legally protected actions as Graham’s executor. The sons have now asked the Ninth U.S. Circuit Court of Appeals to overturn her ruling, arguing in court papers that they were “victims of a cynical, fraudulent scheme”  to deprive them of the memorabilia including 100 sets of original posters of such…

Ray Charles’ Foundation takes on his children
Probate / May 2012
USA

PROBATE Artistes The Ray Charles Foundation is taking legal action against a number of the late soul star’s children, claiming that they have reneged on an agreement reached with their father before he died in 2004 regarding his estate, by attempting to reclaim ownership of the copyright in some of the songs he wrote by using US copyright law provisions that say that works may be reclaimed after 35 years (for works written after the law was passed, longer for works that already existed). The Foundation says, prior to his death, all of the soul singer’s children agreed to forego any future claims to their father’s estate in return for becoming beneficiaries of a $500,000 trust. The remainder of Charles’s estate, including future income from his copyrights, was left to the Foundation, which supports research and education programmes for the hearing impaired, as well as youth education initiatives. The Foundation says that the children have no right to try and reclaim control of the copyrights in their father’s songs. The Foundation’s lawsuit also claim Charles entered into a new deal with his publisher in 1980 involving a number of works, which used up his ‘one time claim back’ option anyway…

Leonard Cohen’s former manager guilty of harassment charges
Artists , Criminal Law / May 2012
USA

CRIMINAL Artistes Leonard Cohen has given evidence against his former manager Kelley Lynch, who he fired in 2004 amidst allegations she had stolen from the iconic singer, leaving him facing bankruptcy. Cohen subsequently successfully sued Lynch, though has struggled to claim the $9 million in damages the courts awarded him. He subsequently toured to rebuild his finances. Lynch has now been found guilty on criminal charges of harassing various people, including Cohen, and of violating previous restraining orders issued against her. In court the singer, who once had a brief romantic relationship with Lynch, said his former manager sent him long and rambling voicemail messages and emails which became increasingly frequent, with sometimes twenty to thirty messages received each day, and these sometimes included violent threats. The messages accused Cohen of drug addiction amongst other things. Lynch was held in custody as the case progressed in lieu of $25,000 bail and was found guilty of two counts of leaving or sending harassing or obscene messages and five counts of violating a restraining order. Whilst all charges were misdemeanours, Lynch was given an eighteen month custodial sentence as part of a five year sentence, during which time she will have to…

Ticketmaster’s fees potentially deceptive in Tennessee
Criminal Law , Live Events / May 2012
USA

CRIMINAL Live events industry Tennessee’s law on deceptive practices applies to Ticketmaster and its parent company Live Nation  the Arkansas Supreme Court has ruled, but the court stopped short of offering an opinion on whether the company’s fees violated the statute. The court’s 4-3 split decision comes after Corey McMillan, an Arkadelphia resident, complained that he was charged nearly $50 in fees to buy four tickets to see country music singer Jason Aldean in concert. McMillan sued Live Nation Entertainment Inc. and Ticketmaster and Ticketmaster took the case to federal court, where a judge asked the Arkansas Supreme Court to determine whether the state law applies to an entity such as Ticketmaster. Writing for the majority, Associate Justice Karen R. Baker said the court “offer(s) no opinion on whether the additional fees or charges by Ticketmaster violate [the statute]”. In a dissenting opinion, Chief Justice Jim Hannah said that whilst the majority did establish Ticketmaster’s criminal liability, the law in question was intended to control ticket scalping and that “By any analysis, Ticketmaster is not scalping tickets; it is the seller in the first instance”.  McMillan said that at an advertised price of $42.75 each, the four concert tickets should…

Cameron wants more action on over-sexed promo videos
UK

CENSORSHIP Artistes, broadcasting, record labels UK Prime Minister David Cameron has said that he is disappointed at the music industry’s efforts to regulate access by children to overly-sexualised pop promo videos, and plans to host a summit on the issue next month. An earlier report on the topic, authored by  Mothers Union boss Reg Bailey prompted the record industry to announce that it was extending its ‘parental advisory’ labelling programme, which identifies content that is possibly inappropriate for children on music CDs and DVDs, to the digital domain, with both audio and video services pledging to more clearly identify such tracks and videos.  However it seems that this has not far enough to satisfy Bailey and Cameron who think the music industry should be doing more to block access for children to more raunchy or violent videos, especially online and in particular the Sony / Universal owned VEVO platform, with Bailey as saying “Many of the industries mentioned in last year’s report have responded positively to our recommendations. I cannot say that has been the case with music videos. Age ratings should be introduced for music videos and there is also a clear case for age-verification for music video websites”….

Google fined for blocking FCC investigation
Internet , Regulation / May 2012
USA

MEDIA REGULATION Internet, Technology The Federal Communications Commission (FCC) has fined Google $25,000 for hampering an investigation into whether the company’s Street View mapping team illegally collected data from Wi-Fi networks. Though clearing Google in the investigation, the FCC said the company “deliberately impeded and delayed the bureau’s investigation by failing to respond to requests for material information and to provide certifications and verifications of its responses.” http://www.nytimes.com/2012/04/16/technology/fccs-google-case-leaves-unanswered-questions.html

Coachella take on the counterfeit Does
Live Events , Trade Mark / May 2012
USA

TRADE MARK Live events industry Organisers of the USA’s Coachella Music and Arts Festival have won a preliminary injunction in the federal court prior to the festival’s second weekend to protect a number of registered trade marks. In the action, Coachella Music Festival LLC listed the marks Coachella, Coachella Valley Music and Arts Festival, Coachella Valley Music & Arts Festival, Dr. Dre, Snoop Dogg, Radiohead and a pending  trademark for The Black Keys. The phrase “Coachizzle” is also “off limits to bootleggers”. Any law enforcement officers including deputy sheriffs, state police, local police and the U.S. Marshal can seize the concert contraband bearing the “Coachella Festival” and the other protected names as long as it’s being sold within 15 miles of the Empire Polo Club in Indio and within 48 hours of the event. Those who have their merchandise seized will get a receipt and have the right to object to the court within 10 days. Coachella Music Festival LLC v. John Does 1-5, Jane Does 1-4 and XYZ Company (CV 12-3069) http://www.pe.com/business/business-insider-headlines/20120420-law-coachella-festivals-organizers-sue-sellers-of-knock-offs.ece

BB King sued over – ermmmm – BB King biopic
Artists , Trade Mark / May 2012
USA

TRADE MARK Artistes, Film   Amanda Harcourt reports on the 1709 blog that the legendary BB King, before whom all blues lovers should kneel, is, according to the Hollywood Reporter being sued for allegedly interfering in the production of a biopic called ….errrr… The King and I.  King Size Film Productions allege that the blues legend is attempting to use trademark and rights of publicity to halt or thwart completion of the picture.  http://www.rollingstone.com/music/news/b-b-king-sued-for-blocking-biopic-20120410

UK’s One Direction face name challenge from US band
Artists , General , Trade Mark / May 2012
Australia
UK
USA

TRADE MARK Artistes British boy band One Direction, among the hottest new acts in the music business on both sides of the pond, are being been sued for Trade Mark infringement by a Californian pop-rock group with the same name.  Attorneys for the California band are seeking an injunction that would stop X-factor supremo Simon Cowell’s Syco Entertainment and Sony Music Entertainment as well as the UK band from using the name One Direction and they also want a share of the profits earned by the chart-topping British boys. In a federal lawsuit filed on Monday in California Central District Court the California band says it is entitled to three times the profits made by their rivals, as well as compensatory damages in excess of US$1 million. The lawsuit said the continued use by both bands of the same name was causing “substantial confusion and substantial damage” to the goodwill earned by the California group. The Northern California band has been using the name One Direction since late 2009 and has recorded two albums, the lawsuit states. It filed an application to register the trademark name in the United States in February 2011. The British band, made up of Niall…

Beatles seek Trade Mark exclusivity against mobility aid applicant
Artists , Trade Mark / May 2012
EU
UK

TRADE MARK Artistes The IPKat reports that the General Court has given its decision in a Community trade mark appeal, Case T-369/10 You-Q BV v OHIM. According to the Curia press release: “Apple Corps can prevent the registration of a figurative Community trade mark composed of the word ‘BEATLE’ in respect of electric mobility aids saying It is likely that, by using that mark, You-Q would take unfair advantage of the repute and the consistent selling power of the marks BEATLES and THE BEATLES held by Apple Corps”. In January 2004, Handicare Holding BV applied to OHIM, the Community Trade Mark Office, for registration of a figurative sign composed of the word ‘BEATLE’ as a Community trade mark in respect of electric mobility aids for persons with reduced mobility. However, Apple Corps Ltd, an undertaking founded by ‘The Beatles’ group, opposed that application, relying on its various earlier Community and national trade marks, including the word mark ‘BEATLES’ and several figurative marks composed of the word ‘BEATLES’ or ‘THE BEATLES’. On 31 May 2010 rejected Handicare’s application, finding that, because of the similarity of the signs, the considerable and long-standing reputation of the earlier marks of Apple Corps and the overlap of the relevant public it was likely…

Prince loses perfume case again – but will appeal
Artists , Trade Mark / May 2012
USA

TRADE MARK Artistes Prince has been ordered to pay just under $3.95 million to perfume company Revelations Perfume And Cosmetics Inc after a US judge upheld an earlier court ruling that said the singer made false promises to the perfume maker, which resulted in the firm investing millions in making a Prince-based perfume the pop star had no intention to help promote. The 2008 case claimed that the singer failed to fulfil promotional commitments he made to help the company promote ‘3121’ named after prince’s 2006 album. Revelations claimed that Prince had agreed to promote the product, and also to sell it at his live shows, but that neither of those things happened, making the venture an expensive flop. Prince’s case was that there was no evidence that Revelations’ decision to make the ‘3121’ perfume was directly motivated by the singer’s promises to undertake promotional duties and have said that the matter will be appealed, telling The Hollywood Reporter: “This was a default judgment, not based on any trial on the merits and without any ability of Prince to challenge the factual assertions of the plaintiff. The judge’s refusal to set aside the default for good cause is currently being…

Nettle’s testimony released during ongoing Indiana State Fair claims
General / May 2012
USA

HEALTH & SAFETY Live events industry Jennifer Nettles, one half of the country music duo Sugarland, has said she was never asked to delay the band’s show at the Indiana State Fair because of an approaching storm. She would have complied if asked, Nettles said, according to testimony given during a taped deposition. Seven people died and more than 40 were injured last year when a storm caused a stage at the state fair to collapse, shortly before Sugarland was to perform. Metal scaffolding supporting the stage lights fell onto a crowd of fans and workers as a storm swept through the fairgrounds on August 13th, 2011 one of three serous incidents involving inclement weather at outdoor events in North America that year, mirrored by the Pukklepop tragedy in Belgium. “We’re invited to come into a place and play. It’s not our place,” Nettles said. “I don’t feel it’s my responsibility, or my management’s responsibility, to evacuate the fans in the case of danger. Do I care about their safety? Absolutely”. Nettles also said she did not know whether Sugarland tour manager Helen Rollins prevented a delay or not, and was unaware of conversations that allegedly occurred about a possible…

Beer tent collapse leaves one dead and seventeen hospitalised
USA

HEALTH & SAFETY Live events industry Over 100 people were injured when a beer tent collapsed in St Louis, Illinois, where fans were celebrating. One patron, Alfred Goodman (58) died, seventeen were hospitalised and two remained in intensive care at the time of writing. High winds and severe weather were blamed for the collapse and Eddie Roth, director of Public Safety for the city of St. Louis, said the incident happened an hour after the St. Louis Cardinals-Milwaukee Brewers game ended. The National Weather Service reported winds of 50 miles per hour picked up the large tent at Kilroy’s bar and Art Randall, the owner the bar, said “everything that was not nailed down was picked up and thrown” adding “everything was going sideways. I had metal chairs ripping across the beer garden”. Building Commissioner Frank Oswald said Kilroy’s was granted a tent permit on April 11th and it passed inspection a couple days later. He said the city of St. Louis requires tents to be able to withstand winds up to 90 mph. The wind gust that destroyed the tent, shattering the aluminium poles and blowing the structure onto nearby railroad tracks, was measured at over 70 mph. http://www.foxnews.com/us/2012/04/29/st-louis-tent-collapse-raises-safety-questions/…

First investigation under new NZ security industry laws
New Zealand

HEALTH & SAFETY Live events industry   An official investigation is under way into the appointment of an unlicensed security firm as security contractor at Eden Park, Auckland Council and Vector Arena in New Zealand in a “possible breach of a new law designed to clean up the industry”. Platform 4 Group, a new company incorporated in December 2011, won the stadium contract despite being unlicensed. Under a recent New Zealand laws, security firms must be licensed to do any work including crowd control. Platform 4 have applied for a licence (in December) but this was not completed at the time the contracts were awarded. In light of this it seems Platform 4 Group teamed up with a licensed company, Harrison Tew Consultants, to take over the contract. The New Zealand Herald reports that “Harrison Tew – staffed by two directors to provide emergency planning for schools but with no crowd-control experience – then employed Platform 4 casual staff and independent contractors to provide security at events” A spokesman for the Ministry of Justice, which administers the Security Licensing Authority, confirmed the matter was referred to the newly formed Complaints, Investigations and Prosecutions Unit at the Department of Internal Affairs…

Live Music Act to come into force on October 1st 2012
Licensing , Live Events / May 2012
UK

LICENSING Live events industry   The Live Music Act will officially come into effect on October 1 2012 and the UK music industry hosted a reception at the Houses of Parliament to celebrate the occasion with performances by Martina Topley-Bird, Daytona Lights and MP4 – a group of musical MPs – and guests including Huey from the Fun Lovin Criminals, Joan Armatrading, Robert Wyatt and Show of Hands.  The reception was hosted by UK Music and the Musicians Union. As a result of the Acts performances of live amplified music to audiences of less than 200 people between the hours of 8am-11pm will no longer require local authority permission in England and Wales There will be no audience limit for performances of unamplified live music. Introduced by Lib Dem Peer Tim Clement-Jones and promoted in the Commons by Bath MP Don Foster, the Live Music Act will encourage pubs and other small venues to host live music events. Lord Clement-Jones said: “I very much welcome UK Music’s commitment to assessing the impact of the new Act. I am confident that the deregulation of live performances in small venues will be a real boost for musicians and the music economy.” Jo…

US talent unions back UMG on EMI takeover, and Sony/ATV deal for EMI Music publishing gets the EC’s green light
EU
New Zealand
UK
USA

COMPETITION Record labels, music publishing In a surprise move, two of the US’s biggest talent unions have come out in support of Universal’s takeover of EMI’s recorded music division on the ground that UMG would, unlike previous owners Terra Firma, actually invest in music and musicians. In a letter to the U.S. Federal Trade Commission Chairman Jon Leibowitz The American Federation of Musicians said that UMG had shown “compliance with and respect for its collective bargaining agreements has been positive when compared to its peer companies” and that “Sustaining the EMI legacy” under Universal’s ownership “would appear to benefit AMF recording musicians.” The recently merged The Screen Actors Guild and the American Federation of Television and Radio Artists said Universal has shown commitment to the music industry, investing in new artists and innovative musical genres in a separate letter saying “For EMI to be left to further drift into oblivion, or for EMI to be acquired and sold off in pieces by capital investment speculators with no appreciation for, or commitment to, artists who fuel the recording industry, would ill serve the industry,” SAG-AFTRA said. Universal is “committed to reinvesting in EMI to create even more opportunities for new and…

Big win for PRS, even if for small beer
UK

COPYRIGHT Music publishing, live events News reaches us of a decision by Mr Kevin Prosser QC sitting as a Deputy Judge of the Chancery Division on the case of PRS Ltd v Alexander Burns and William Burns  [2012] EWHC 221 (Ch) in an action against father and son defendants to restrain them from infringing PRS’s copyright in musical works by performing music in public and damages. It’s an interesting read and Prosser QC is somewhat critical of the role of Alexander Burns, the father, an acting solicitor in the running of the Remix Bar in Woking; the Judge was less than impressed with Mr Burns as a witness and went further saying “I wish to make a further, important, comment about Mr Burns. He had a very lax attitude towards the legal obligations which he and William owed to PRS”. Burn’s DJ son William’s activities were not without criticism with the judge saying “I was not impressed by his recollection of events. He was not at all concerned about performing music at Remix Bar in public without a licence from PRS (although I accept that he was relying on his father to advise him on this) and he failed to…

Is workplace music licencing ‘double taxation’?
Copyright / April 2012
UK

COPYRIGHT Broadcasting Back in September 2011 the 1709 Blog posted a very interesting blog titled “two may be company but can one be a crowd?” – which attracted a wide range of comments – on how copyright should define the use of private radios in the workplace – and the interpretation put on the current legal provisions in the UK of the use of radios in public places by PPL and PRS, the UK’s recorded music and music publishing collection societies. Now Andrew Harrison, the boss of the RadioCentre, the trade body that represents the commercial radio sector, has called on the UK government to change the current regime so that those who listen to or provide radio services in public places do not need a an additional music licence beyond that already paid for by the broadcaster. Harrison was speaking at the Westminster Media Forum about government plans to review the Communications Act, and whilst his talk included pleas to de-regulate the radio sector and remove the current ‘genre’ licensing governing the music commercial radio stations can play, saying this was “a blunt instrument in an era of infinite music choice available through smartphones, downloads and streaming” , it was his comments…

Spain’s anti-piracy law “may already be obsolete”
Copyright , Internet / April 2012
Spain

COPYRIGHT Internet Reuters report that Spain’s new anti-piracy laws – the so called ‘Sinde’ web blocking law and procedures may be having little effect with users switching away from websites providing links to copyrighted material, which were targeted by the law, towards peer-to-peer or content-sharing services instead. It seems that the closure of the MegaUpload site has simply accelerated the trend, and many of the pirates have simply re-directed their activity towards peer-to-peer platforms to access copyrighted material. Such platforms are not covered by the new legislation and have been protected in Spanish courts provided they are “not for profit”. About half of Spanish adults admit to having downloaded audiovisual content from the Internet for free, according to a poll by the state-run CIS public opinion surveyor. Microsoft has confirmed that users of its instant messaging app are now being stopped from sharing links to The Pirate Bay, though the IT firm says the block has been instigated because of malware fears rather than any bid to block Bay-enabled copyright infringement. A spokesman for the company told The Register: “We block instant messages if they contain malicious or spam URLs based on intelligence algorithms, third-party sources, and/or user complaints. Pirate…

Guardian cloud concern
Copyright , Internet , Record Labels / April 2012
USA

COPYRIGHT Record labels, internet   There is an interesting blog in the Guardian online titled “Behind the music: Why artists mustn’t be drawn into an MP3 site’s legal fight which marries up the right of termination being actively pursued by a number of musicians and songwriters to reclaim copyrights from record labels and music publishers in the USA (the right to reclaim recordings 35 years old – notice must be filed within two years of the termination date) and the legality of so called digital cloud lockers – in particular EMI’s claim against web entrepreneur Michael Robertson’s MP3Tunes. Its all at http://www.guardian.co.uk/music/musicblog/2012/mar/02/artists-mp3-site-legal-fight?newsfeed=true

Canadian music industry comments on C-11 copyright reforms
Copyright / April 2012
Canada

COPYRIGHT All areas ITBusiness.ca reports that internet service providers, social sites and satirists appear to be in the cross hairs of the Canadian Independent Music Association, the national trade organization that represents English-language Canadian companies in the music, sound recording and music-related industries. The site reports that CIMA have now made their representations to the federal legislative committee on “Bill C-11” – the copyright revision bill –  and are seeking a series of amendments that would extend the proposed law’s power saying “While Bill C- 11 does makes in-roads to modernize the [Canadian] Copyright Act  in regards to Canada’s obligations under international treaties, CIMA believes that some provisions of the bill will lead to significant problems for copyright owners in their efforts to protect their rights, determine the use of their works and to enjoy reasonable compensation for their intellectual property”.  Among CIMA’s proposed changes are:   Changes in the wording of Section 18 of Bill C-11. This touches on the so-called “enabler provision” of the bill which currently, the law requires that a site be found to be “designed primarily” to enable copyright infringement to be considered engaged in violation of copyright laws. CIMA wants the phrase “designed primarily” cut…

News from the digital sphere
Copyright , Internet / April 2012
Canada
USA

COPYRIGHT Internet There are now a plethora of online services offering legal ways to listen to music, but I was interested to see the announcement that new music service Turntable.fm has reached a deal with all four of the major record labels (EMI, Sony-BMG, Universal and Warners) allowing it to “to leave the legal gray zone it had been operating in and expand into international markets.”  One of the reasons I was interested is because Turntable offers a ‘twist’ on the usual music services, its  not a streaming service like Pandora or Spotify,  but really is a social platform,  allowing users to create an online ‘room’ in which they can the programme and ‘DJ’ for other users – so the DJ actively picks his or her own music Seth Goldstein, the company’s chairman, told his audiuence at the South by South West convention in Austin, Texas, “Basically this means we’re legitimate,” Mr. Goldstein said. “There are no eggshells, no wondering whether or not what we’re doing is viable as it relates to rights holders.” The company already had agreements with the main two US music publisher ad songwriter collection societies, ASCAP and BMI Mr. Goldstein said Turntable’s audience had started…

Kanye West and Jay-Z settle Syl Johnson’s lawsuit
USA

COPYRIGHT Music publishing, artistes, sound recordings We had previously reported news of a lawsuit iled by soul singer  Syl Johnson before US District Court for the Northern District of Illinois Eastern Division against rappers Jay Z ad Kanye West. The singer had claimed that the hip-hop duo’s 2011 song The Joy was a plagiarism of his 1967 track Different Strokes. According to Johnson, Kanye West had failed to obtain permission to use an excerpt of Different Strokes for his 2010 record My Beautiful Dark Twisted Fantasy. Therefore, at that time no sampling of Syl Johnson’s song had been included. In August 2011, West and Jay-Z released new album Watch The Throne, which includes The Joy.  In October last, when filing suit against the duo plus Rock-A-Fella Records, UMG and Def Jam, Johnson had asked the Court to order a full accounting from defendants arising out of the sales and publishing activities relating to any of his rights, as well as punitive damages for the alleged sample usage. Now Eleonora Rosati  on the 1709 Blog has updated us that the parties have agreed to settle the federal lawsuit. As always happens, the details of the settlement have not been made public. However, Eleonora suggests that those UK-based readers of this Blog who fancy both hip-hop music and…

Bollywood rejoice!
Copyright , Internet / April 2012
India

COPYRIGHT Internet The High Court in Calcutta, India, has responded to a complaint from music industry trade body IMI by ruling that access to 104 alleged copyright-infringing music websites must be blocked at ISP level. India’s Internet service providers will utilize DNS and IP-based blocking as well as “deep packet inspection” to block access to the sites which include coolgoose.com, songs.pk and bollywood-hits.com. Frances Moore, chief executive of worldwide recording industry rights group IFPI said “”This decision is a victory for the rule of law online and a blow to those illegal businesses that want to build revenues by violating the rights of others” adding  “It highlights the importance the Indian courts place on the creative industries and their contribution to the economy. The court ruled that blocking is a proportionate and effective way to tackle website piracy. The Indian government should build on this progress by moving forward legislation to effectively tackle all forms of digital piracy to enable the country’s digital music market to reach its full potential.” With a large proportion of music sales in India tied to the movie industry both sectors will no doubt be pleased with the court’s actions. “There is a lot to be…

Bollywood film faces Iranian strike
Copyright / April 2012
India

COPYRIGHT Film industry My new favourite copyright read, the Hindustan Times, reports that just as the song Pungi Bajaa Kar from Saif Ali Khan’s soon to be released remake of the spy thriller Agent Vinod, is gaining popularity, an Iranian band has slapped a legal notice on music director Pritam Chakraborty and the film’s distributors for alleged copyright violation. The band, Barobax Corp. was founded in 2003 by three Iranian nationals Kashayar Haghgoo, Kevian Haghgoo and Hamid Farouzmand and claim that they had already released the song as a track on their 2010 album Soosan Khanoom saying “On March 12 this year, the band came across the promotions of the movie Agent Vinod on satellite television in Iran. The song Pungi Baja De was being aired. On listening to the song, the band realised that the initial portion of the song is lifted without any change from the title song of their album” further stating “We demand the music director, producers and directors to refrain from releasing the song in the movie or use it to promote the movie. Failing to do so, the band shall be compelled to initiate proceedings to seek a restraining order and necessary compensation”. According…

Pirates take to the skies
Copyright , Internet / April 2012
EU

COPYRIGHT Internet As Pirate Bay co-founder Carl Lundstrom prepares to serve his four month prison sentence under house arrest in Sweden, it seems the current Pirate Bay organisers are planning to put copies of their database onto servers in the sky – on “small airborne drones” connected to the mobile internet – that would have to be literally “shot down” to take the site offline.  A blog post by a certain MrSpock that appeared on the Swedish site on Sunday said: “We can’t limit ourselves to hosting things just on land anymore. These Low Orbit Server Stations (LOSS) are just the first attempt. With modern radio transmitters we can get over 100Mbps per node up to 50km away. For the proxy system we’re building, that’s more than enough. This way our machines will have to be shut down with aeroplanes in order to shut down the system. A real act of war.” http://www.theregister.co.uk/2012/03/19/pirate_bay_loss_drones/

Tony Seddon defeats claim by Musicial Youth
Copyright , Music Publishing / April 2012
UK

COPYRIGHT Music Publishing Former members of a child reggae band Muscal Youth, who had a big hit in 1982 with Pass the Dutchie, have lost a legal battle with their former lawyers Woolf Seddon (which no longer exists) who they said gave them bad advice over royalties they might receive from the song. Pass The Dutchie was an adaptation of Pass The Kouchie (recorded by the Mighty Diamonds) and the relationship between those two songs formed the background to the legal proceedings with the band claiming their version should have attracted a new copyright. The High Court ruled in favour of partners in the law firm, dismissing the claim by Dennis Seaton, Michael Grant, Kelvin Grant, Frederick Waite Junior – aka Junior Waite – and a representative of the estate of the late Patrick Waite saying the claim had no merit. Mr Justice Roth said that the ex-members began legal proceedings in 2004 claiming that solicitor Tony Seddon – and other partners in Woolf Seddon – had “been in serious breach of their duties” by failing to “protect a distinct copyright” held by Musical Youth. Mr Seddon and former colleagues argued that the claim was an abuse of process” at…

EMI sampling claim swiftly settled
Copyright , Record Labels / April 2012
USA

COPYRIGHT Record Labels We are going to report on an action brought by EMI against Universal’s affiliate Cash Money Records. After EMI filed court papers saying Cash Money owed it $491,000 in royalties relating to samples used on releases from the hip hop imprint. However, it now seems that claim related to an earlier legal squabble over samples that appeared on Lil Wayne’s ‘Tha Carter III’ album but whatever they were – cash Money took the hint with both parties issuing a joint statement to Billboard late last week reading: “Cash Money Records and EMI Music Publishing have amicably settled EMI’s recent lawsuit and their financial disputes on various record releases. The companies look forward to working together on future projects”.

Chugg calls for anti-touting laws in Australia
Competition , Live Events / April 2012
Australia

COMPETITION Live events industry Australian promoter Michael Chugg has called from new ‘anti-scalping’ laws after tickets for Radiohead’s latest tour sold out in minutes and fans fumed over tickets at inflated prices posted on eBay. As fans took to social media to vent their frustrations, prompting Chugg Entertainment to release a statement advising against buying from unauthorised sources. Chugg says action needs to be taken on a national level, including co-operation between promoters, federal and state government and websites, to curb the ongoing issue of ticket on-selling saying “The federal government should be bringing in a blanket policy but the state governments also need to act,” Chugg told AAP. But Live Performance Australia, which sets policy for the music industry, continues to oppose any moves to make scalping illegal with Suzanne Daley, Director of Policy and Programs for LPA saying “Scalping is a very difficult practice to monitor and stamp out” adding “We believe resources would be better focused on educating consumers around the risks rather than trying to prevent it via legal means.” Scalping comes under commercial law which is decided at a state level. The practice is illegal only in Queensland and only after a scalper makes a…

Will MAMA sale herald a new competition query?
Competition , Live Events / April 2012
UK
USA

COMPETITION Live events industry HMV’s plan to sell its live music division, the MAMA Group, has now entered its second stage, after passing the deadline for first round bids. It seems interested bidders include both AEG Live and Live Nation’s Academy Group, both of whom already own UK venues. Live Nation’s acquisition of the Academy Music Group itself in 2007 prompted a Competition Commission enquiry which passed the sale, subject to the sale of two of AMG’s London venues and it will be interesting to see what competition regulators make of a combined Live Nation-MAMA or AEG-MAMA. The jewel in the MAMA crown is the Hammersmith Apollo, which CMU Daily reported “would be a perfect addition to AEG’s UK venue portfolio, especially in the burgeoning live comedy market, the West London Apollo venue being the stepping stone a-list stand ups take before reaching the ultimate goal of selling out AEG’s The O2 Arena on the east side of the capital”. Whether AEG would be interested in MAMA’s other businesses, in the festivals, artist management and marketing partnership domains, isn’t clear, and it seems possible that MAMA co-founder Dean James could head a partial management buy-out. In a statement HMV said…

Channel Isles to fight on over VAT reforms
Taxation / April 2012
UK

TAXATION Retail CMU Daily reports that the long running campaign to close the VAT loophole that gave mail-order CD sellers based on the Channel Islands an unfair advantage over mainland retailers is facing its final hurdle as legal representatives for Jersey and Guernsey try to fight the UK government’s plan to end the tax arrangement through the courts. Highlight the fact that any such move would radically increase the admittedly low unemployment rate on the islands and that back-end providers such as Indigo Starfish (who service Amazon) and play.com will simply move to other tax free havens, the first attempt has already failed in the High Court. The relevant taxation exception, the Low Value Consignment Relief (LVCR), meant that companies could sell products under £18 (or more recently £15) by mail-order from outside the EU into the UK without charging Value Added Tax. The tax dodge was originally set up because the quantity of such sales was so low, and the cost of administering the collection of the VAT was relatively high, meaning HMRC would potentially lose revenues. High Street retailers such as HMV have long campaigned against the Relief. An appeal against Mitting J’s decision is being considered.

Latino star latest to launch digital royalty claim
USA

COPYRIGHT / CONTRACT Record labels, internet Popular Latina music star Graciela Beltran has filed a class action complaint (Case # CV121002) in the United States District Court for the Northern District of California against EMI Music, Inc. The case arises out of the alleged failure of EMI to pay the full royalty rates to artists such as Ms. Beltran on revenue generated from the licensing of digital downloads and/or ringtones. Beltran’s attorney Joshua C. Ezrin of Audet & Partners, LLP said “From the information we have received, it appears EMI has failed to pay Ms. Beltran and its other artists the amount owed on the licensing of songs for digital downloads and ringtones,”  adding “Graciela Beltran is bringing this action to ensure all artists are properly paid for their work.” The Temptations have also joined a long group of heritage acts disputing their royalties, here with Universal, but elsewhere this month we comment on the proposed agreed settlement between Sony and a number of artistes in a class action. The Temptations are basing their claim on the precedent set in the FTB (‘Eminen’) case, successfully brought against Universal. And at South by South West in Austin Texas Gloria Gaynor suggested…

Sony and Cheap Trick agree settlement in digital royalty dispute
USA

CONTRACT / COPYRIGHT Record labels, artistes It seems that Sony and a group of artistes including Cheap Trick, the Allman Brothers and the Youngbloods have come to an agreed settlement in their dispute over the appropriate royalties the label should be paying the artistes – the label want to pay a ‘per unit’ royalty as they would with vinyl and CDs with various deductions meaning the royalty is reduced to a faction of the sale price, with the artistes arguing that their proper share was one half of all digital licensing income, less only publishing royalties. The settlement, proposed by the plaintiffs in a court filing, has yet to be approved by the court, but proposes that Sony will pay its recording artists a total $7.95 million to resolve outstanding claims in the case. Lawyers’ fees alone will account for $2.5 million of this (The case has been running since 2006). The deal also provides for a 3 percent “bump” in artists’ royalty rates with respect to digital income – seemingly acknowledging that digital royalties should be higher than those for physical product. My previous post on the recent Kenny Rogers claim over his royalties highlighted some of the more…

SonyBMG rejects Toto digital royalty claim
Artists , Contract , Record Labels / April 2012
USA

CONTRACT Record labels, Artists Billboard reports that Sony BMG has asked a US court to dismiss the latest case filed against the label by 80s icons Toto, who are looking to challenge the basis of the way in which their digital download royalties are accounted for. With The Temptations having recently launched a new action against Universal, who have lost one case in the ‘Eminen’ action (actually brought by the rapper’s producers FBT), Sony BMG has now agreed to pay $7.95 million to settle a similar class action (see above, with Cheap Trick and the Allman Brothers amongst others) but is separately defending the lawsuit brought by Toto, who recorded the hit song “Africa”. The music company says the band is “dissatisfied with the bargain that it struck.” Billboard report that Sony have said that the argument that artistes should receive a share of ‘licence’ income from digital sales rather than a (much lower) per unit sales royalty is incorrect in this case because the “license” vs. “sale” dispute misses a third word — “lease” — which could play a role in determining whether musicians get roughly 50 percent of digital income or merely about 15 percent of the net sales…

UK ISPS should adopt a voluntary blocking code
Copyright , Internet / March 2012
UK

COPYRIGHT Internet   A group of content owners that includes the British Recorded Music Industry (BPI), Motion Picture Association (MPA), Producers Alliance for Cinema and Television (PACT), The Premier League and the Publishers Association have said that Internet search engines that operate in the UK could stop publishing links to websites that are deemed to be substantially infringing copyright under plans. The groups have proposed a voluntary code of practice for search engines in a move to get them to do more to prevent online copyright infringement. If adopted, the code would also require search engines to relegate sites that repeatedly link to pirated material in their rankings and conversely boost links to other “licensed” sites under a new “certification” scheme suggesting search engines should prioritise legal sites when consumers are clearly using search engines “trying to access digital content to download or stream, rather than simply looking for information” using search terms such as ‘torrent’, ‘download’, ‘free’ and ‘rip’ when eg combined with an artiste, song or an album name. The content owners would also like to see search engines stop promoting pirate websites or placing ads on those sites from selling keyword advertising related to piracy terminology as…

Google COULD face legal action from record labels
USA

COPYRIGHT / COMPETITION Internet, record labels TorrentFreak reports that the recording industry is considering filing a lawsuit against Google for allegedly abusing its dominant market position to distort the market for online music saying “Industry groups including IFPI and the RIAA want Google to degrade links to ‘pirate’ websites in its search results” and that “IFPI has obtained a ‘highly confidential and preliminary legal opinion’ to see if they can force Google to step up its anti-piracy efforts though a lawsuit” – with the IFPI saying  “Google continues to fail to prioritize legal music sites over illegal sites in search results, claiming that its algorithm for search results is based on the relevance of sites to consumers” explaining “With a view to addressing this failure, IFPI obtained a highly confidential and preliminary legal opinion in July 2011 on the possibility of bringing a competition law [antitrust] complaint against Google for abuse of its dominant position, given the distortion of the market for legitimate online music that is likely to result from Google’s prioritizing of illegal sites.” So it seems whether the legal action will actually be launched is a matter of whether or not Google will come to the table…

IP and Media in the Digital Age conference
Copyright , Internet / March 2012
UK

CONFERENCE All areas Increasingly the population is turning to online and digital methods to consume media. This has led to a proliferation of ways in which intellectual property rights can be abused, which is particularly demonstrated by the increase in illegal download websites and peer to peer software. However, the entertainment industry has begun to fight back, with Hollywood winning a High Court case against BT forcing them to block the website Newzbin2. This case is likely to be followed by the music industry as they plan to take on the website Pirate Bay. With this emerging case law it is essential that you keep up to date with the competing issues being fought out in the courts, as well as understanding the complexities of new online business models. To be held on 23rd March 2012 in Central London, Butterworths’ IP and Media in the Digital Age conference will provide a comprehensive analysis of new approaches to protecting intellectual property rights. Join our expert speaker panel to discuss the following critical issues: Understand the implications of Hollywood’s High Court win requiring BT to block the website Newzbin2 Discuss what ‘communication to the public’ means in today’s digital environment Explore the…