Clear Channel agree to pay for US sound recording rights
Copyright , Record Labels / July 2012
USA

COPYRIGHT Radio, record labels Clear Channel, the biggest radio company in the US with 850 stations, has entered into a landmark agreement with country music label Big Machine which will see the broadcaster pay a royalty for the use of sound recordings on terrestrial radio channels for the first time. In the UK these royalties are collected for the performance of sound recordings in all media by Phonographic Performance Limited (“PPL”) and whilst newer media in the USA such as satellite, internet and digital radio attract a royalty (currently collected by SoundExchange), US copyright law does not recognise any right to collect payments from terrestrial stations. Terrestrial broadcasters do though have to pay the “PRS” royalty for the use of songs (usually by way of blanket licences with ASCAP and BMI). After pressure from the US Congress, a reluctant radio industry did start to negotiate a compromise with the record labels, but the talks collapsed. The broadcast lobby remains powerful in Washington although its clear some politicians are keen to introduce a system more favourable to record labels and recording artistes which would mirror the music publishing position. Big Machine, headed Scott Borchetta, have seemingly been able to use the…

Hunt to rethink UK’s new Communications Act, Cable to review copyright
Copyright , Regulation / July 2012
UK

COPYRIGHT / REGULATION Broadcasting Embattled UK Culture Secretary Jeremy Hunt has said that he will scrap a proposed green paper which would have kicked off the drafting of a new Communications Act, which in itself is planned to reform the way the British broadcasting and internet sectors are regulated. Hunt says he will replace the green paper with a series of ‘policy seminars’ to feed into a white paper early next year, which will ultimately lead to new legislation. Amongst changes mooted is the reform of regulation of the UK’s radio industry which many terrestrial radio station owners believe are too strict, given they are now competing with so many new rivals on digital networks and the internet. The radio industry is also likely to use any review to call for an axing of the public performance royalty requirement on workplaces, offices, shops and bars which play out music radio on their premises. Currently such premises need both PRS and PPL licences for using songs and sound recordings even though the radio stations have already paid royalties on the music they air. The UK’s Secretary of State for Business, Innovation and Skills, Vince Cable, introduced the second reading of the…

Magistrates given more sentencing powers
Copyright / July 2012
UK

COPYRIGHT All areas The IP Kat reports that Royal Assent has been given to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which introduces into England and Wales a wide range of reforms to the justice system — some of which affects that complex web of laws we all know and love as intellectual property. Section 85 of the Act (not in force until a commencement order is made) removes the £5,000 upper limit on fines that can be handed down by the magistrates’ court, thus giving magistrates more freedom to hand down fines that they consider to be proportionate to an offence. This change affects the penalties on summary conviction for many offences: counterfeiting; piracy; unauthorised receipt of broadcasts and the use of illicit decoders and copyright circumvention devices under the Copyright, Designs and Patents Act 1988. http://ipkitten.blogspot.co.il/2012/06/monday-miscellany.html

Hooper and Hargreaves speak out
Copyright / July 2012
UK

COPYRIGHT All Areas Prof Ian Hargreaves (newly appointed a  CBE), author of last year’s report on Intellectual Property, and Richard Hooper in the UK, ex Deputy Chairman of Ofcom and ex-Chair of the Radio Authority (and my MD at pan-European broadcaster SuperChannel way back in the 80s!) who is now in charge of the feasibility study for the for the Digital Copyright Exchange (DCE) proposed in Hargreaves’ Report, have been speaking to assorted representatives from the music industry at a ‘First Monday’ event on the 11th June in Central London. Saying that the Digital Copyright Exchange was “the single most important thing” in his report, Hargreaves said that he was “very happy that work was already being done to make it a reality. I’ll be less happy if it doesn’t succeed! But while the government continues to support Richard, there is great potential”. Hooper in turn explained why he sees a need for the DCE, saying “It’s our belief that our copyright licensing system, as a whole, is currently not fit for purpose” telling his audience “The music industry is actually better than many other creative sectors, but there is still room for improvement, and I think most people in the…

Vandals’ bassist wants a seat on the bench
Constitutional Law / July 2012
UK
USA

CONSTITUTIONAL LAW All Areas Here’s a story that grabbed my attention – having been a punk rocker, practicing entertainment lawyer and magistrate myself: it’s all about US attorney Joe Escalante’s campaign to be a Los Angeles County Superior Court judge. Escalante, 49, the former bassist for the Vandals (who were at their biggest in the early 80s, but still perform) and who has been an attorney for 20 years including a stint as Director of Business Affairs at CBS. He has also served as a temporary judge for the Los Angeles Superior Court system.  In between all that he also fought a long trade mark battle against Variety magazine but it seems the Court doesn’t want him after the Judicial Election Evaluations Committee (JEEC), an organization within the Los Angeles County Bar Association that evaluates judicial candidates, labelled Escalante and four others as “not qualified” for judgeship. In fact I think Mr Escalante may have once sent a UK band featuring a couple of my students and called the [something] Vhandals  a ‘cease and desist’ letter! Anyway, It’s all here. http://www.theatlantic.com/entertainment/archive/2012/06/the-punk-rocker-who-would-be-judge/257560/

PRS waives Diamond Jubilee fees
Copyright , Live Events / July 2012
UK

COPYRIGHT Live events industry   PRS for Music the collecting society responsible for administering royalties for the use of musical works in the United Kingdom, decided that it would not charge licence fees for the playing of music at certain community events held to celebrate the Queen’s Diamond Jubilee 2012. The exemption ran from 2nd to 5th June 2012 and applied to non-profit-making events run by volunteers, such as street parties, intended for up to 300 people, in a venue that does not currently require a PRS licence. http://www.prsformusic.com/diamondjubilee/Pages/default.aspx

Beach House consider action over VW ‘sound alike’
Copyright , Music Publishing / July 2012
USA

COPYRIGHT Music publishing, Advertising Baltimore indie duo Beach House have described an official statement sent out by Volkswagon as a ‘ cop out’ after accusing the car manufacturer of plagiarism of the band’s 2010 single ‘Take Care’ when VW used a sound alike in used as the soundtrack of a recent car advert. To be clear –  the advert is not a copy of the song exactly – and it is not a copied sound recording – more of a ‘sound alike’ of the band’s ‘feel’.  VW denied any copying and maintained that the song in its ad was merely inspired by the duo’s ‘dream pop’ – with VW saying “We greatly respect the talent of Beach House and never set out to replicate a specific song of theirs or anyone else’s. Most important to us was to find a track which matched the narrative of the advert, and we believe we have achieved this in the final edits”. You can take a listen online (see the link below) and in this blogger’s opinion it’s fair to say that the feel of the advert’s sound track sounds rather like ‘Take Care’. According to the Wall Street Journal, the band’s manager Jason Forster was contacted…

Publishers was US Vevo money
USA

COPYRIGHT Music publishing, internet David Israelite, CEO of US’s National Music Publishers Association (NMPA), has called for a number of changes to the way the US music publishing business runs, both in the way publishers licence digital rights, and in the way American copyright law applies to digital licensing and the way collecting organisations operate. In particular the NMPA boss was critical of American record labels who are utilising contract clauses to avoid giving publishers their share when they are paid by online video sites, in particular VEVO, which includes major labels Sony and UMG amongst shareholders. In February indie publisher Matt Pincus said his company was receiving no income from the booming music video service, because in the US VEVO had deals with the record companies (including Sony and UMG) that put the obligation to pay publishing royalties onto the labels, rather than paying royalties direct to the publishers – and the labels used contract clauses relating to promotional videos to say that the payment of song writing royalties could be avoided. An unhappy Israelite took this a stage further saying  “Today you have VEVO talking about reaching $150 million in revenue and wanting to grow to $1 billion, and a large amount…

Black Keys sue of use of songs in adverts
UK
USA

COPYRIGHT Artistes, music publishing, record labels The Black Keys have launched actions against both Pizza Hut and Home Depot, claiming the two companies have used their songs in adverts without permission. Pizza Hut and its ad agency are accused of using the song ‘Gold On The Ceiling’ without permission, while US DIY chain Home Depot is accused of using the band’s hit ‘Lonely Boy’. A lawyer for the Ohio duo say the two commercials were a “brazen and improper effort to capitalise on the plaintiffs’ hard-earned success”. They also claim that the band made both brands aware of the unlicensed use of their music last month, but as yet neither company has taken any action. http://the1709blog.blogspot.co.uk/2012/06/on-bold-infringement-or-unauthorised.html

Illegally Blonde?
Artists , Image Rights , Trade Mark / July 2012
USA

TRADE MARK / IMAGE RIGHTS Artistes The Hollywood Reporter says that a planned concert featuring a holographic Marilyn Monroe is under legal threat by the deceased icon’s estate. Organisers Digicon Media’s show “Virtual Marilyn” features  the projected blond bombshell singing and interacting alongside live music stars, but has attracted the attention of attorneys Sheppard Mullin who represent the Monroe estate in what might become a developing legal controversy. The holographic performance by dead rapper Tupac Shakur at the Coachella festival in 2012 proved that digital resurrection of deceased celebrities could be an emerging trend and you can find more on the copyright, trade mark, image right  and other legalities of holograms of deceased stars here  http://www.musiclawupdates.com/?p=4856 and here http://www.musiclawupdates.com/?p=4928 http://www.hollywoodreporter.com/thr-esq/marilyn-monroe-estate-hologram-legal-334817

Placebo CD cover a bitter pill to swallow
Artists , Image Rights , Trade Mark / July 2012
UK
USA

TRADE MARKS, IMAGE RIGHTS Artistes An unemployed chef whose boyish face featured on Placebo’s eponymous 1996 debut album is bringing a self funded action against the band claiming the image was used without his consent or permission. The photograph, of David Fox who was then aged twelve, shows the youth in a large red fleece pulling his own cheeks down. It was taken by Mr Fox’s cousin who was a professional photographer. Fox says that once the album was released and became a chart success, he was bullied at school and questioned by teachers. Eventually his mother had to drive him home from school because of the bullying and Fox said he went from being popular to a situation where “Nobody wanted me on their side or anything like that”. He left school before his GCSEs. Now aged 28 was made redundant recently due to the recession. Riverman Management, the band’s managers, said any action should be directed against the band’s label Virgin, who released the album. Former model Robert Christoff initially won a lengthy legal case against Nestle, owner of tasters Choice coffee, having been initially paid  $250 back in 1986 for the photo of the model “posed gazing at…

UK One Direction counter sue US name rivals
Artists , Trade Mark / July 2012
UK
USA

TRADE MARK Artistes The UK One Direction are counter-suing US’s One Direction after the US band brough a suit saying they had the use of the bands’ name. At the moment the UK’s X-factor creation are one of the biggest pop successes in the World.  The American band claimed they had been using the name since 2009, some time before the UK group was formed on ‘X-Factor’, and were also first to upload an album using the moniker to iTunes (albeit after One Direction UK had been formed). CMU Daily report that the US band have alleged that Simon Cowell, Syco and Sony Music knew this before launching their pop creations in the USA, because the US trademark registry had told them so. Syco and Sony Music therefore had no business launching their group under that name in the US, the American band argued, and as a result they were suing for damages. But in a counter suit filed last week, lawyers working for the Sony/Cowell empire have focused on the release date of the American band’s first album, February 2011. They note that One Direction UK were created on British TV the previous autumn, that there had been globally…

Update on Universal-EMI
Competition , Record Labels / July 2012
USA

COMPETITION Record labels   Universal’s proposed takeover of EMI’s recorded music division has had a congressional hearing with a public airing of the arguments for and against the acquisition in the USA – with music industry veterans Lucian Grainge, Roger Faxon and Irving Azoff speaking up for the UMG-EMI tie up and , Edgar Bronfman Jr and Martin Mills against along with  Gigi Sohn from American lobby group Public Knowledge. The congressional session took place on Thursday, 21 June and Grainge insisted that everyone would be a winner if and when the Universal and EMI labels unite, saying, according to the Financial Times: “Our coming together will benefit consumers, artists and all those committed to a diverse and healthy music business”. But Mills countered that the only people who would actually benefit would be Universal’s owners and management, who were, he claimed “monopolists” seeking market power. Edgar Bronfman Jr said that a combined Universal EMI would be “one innovation-stifling dominant player”. http://www.reuters.com/article/2012/06/21/us-emi-universal-antitrust-idUSBRE85K0N020120621?feedType=RSS&feedName=innovationNews&rpc=43 and more here http://www.billboard.biz/bbbiz/industry/record-labels/irving-azoff-disputes-bronfman-mills-testimony-1007407162.story

Trolls unmasked by mum
India
UK

INTERNET Technology, Criminal Law, Data Protection The High Court has ordered that Facebook must reveal the IP addresses of internet ‘trolls’ who abused a woman user after she posted comments supporting failed X-factor contestant Frankie Cocozza. Nicola Brookes (45) received more than 100 ‘vicious and depraved’ messages, and trolls then set up a fake profile in her name and image– spamming Cocozza’s 98,000 online fans and seemingly suggesting that Brookes wanted to lure young girls.  Some messages falsely described her as a drug dealer, a prostitute, a paedophile and known child abuser, and others attempted to ‘befriend’ young girls. Her home address and personal email address were published. Sussex Police did not successfully intervene in Ms Brookes’ case, but Liam Stacey, received a 56 day prison sentencing after tweeting racist abuses about Bolton Wanderer footballer Fabrice Muamba after he collapsed with a heart attack during a premiership match against Tottenham Hotspur in March. Ms Brookes still uses Facebook. Solicitors Bains Cohen agreed to take the case pro bono and Rupinder Bains said Facebook had not contested the Norwich Pharmacal  action, and had agreed to hand over the information within six weeks. In India global hacking movement Anonymous has called for…

Festival fun helps Highland cops balance books
Licensing , Live Events / July 2012
UK

LICENSING Live events industry   This is the headline in the Ross-shire journal reporting that Scottish music festivals in the Highlands have helped the Northern Constabulary save £2 million in the last year. Policing huge outdoor events like this weekend’s RockNess event near Inverness has helped keep the force in the black and save £2 million out a revenue budget of £51.5m for 2011/12 which was underspent. Scores of officers are needed to police the thousands of revellers who attend several large music festivals and one-off concerts which are annually held in the region including the three-day RockNess event, Tartan Heart at Belladrum near Beauly and Loopallu in Ullapool and they are, of course, charged for.  Andy Cowie, the force’s deputy chief constable, did not know how much cash had been raised from the policing of festivals but said “The public purse should not be subsiding private enterprise”. http://www.ross-shirejournal.co.uk/News/Festival-fun-helps-Highland-cops-balance-books.htm

IOC to “investigate” in Olympics touting row
Live Events / July 2012
UK

OLYMPICS Live events industry, ticketing In a perhaps an all too predictable story, a ticketing scandal involving more than a quarter of the 204 countries represented at the Olympics looks set to hang over the London Games, after it emerged that an internal investigation is unlikely to be completed before the opening ceremony. The International Olympic Committee has promised to investigate allegations that 27 agents representing 54 countries were prepared to offer thousands of unauthorised tickets at prices of up to £6,000 to undercover Sunday Times reporters posing as Middle Eastern buyers. After an emergency board meeting, the IOC said it took the allegations very seriously and referred the matter to its ethics commission. “Should any irregularities be proven, the organisation will deal with those involved in an appropriate manner. The NOCs [national Olympic committees] are autonomous organisations, but if any of the cases are confirmed the IOC will not hesitate to impose the strongest sanctions,” it said in a statement. Re-selling Olympic tickets is a specific summary offence in the United Kingdom, punishable by a fine of up to £20,000. http://www.guardian.co.uk/sport/2012/jun/17/olympics-ticketing-scandal-london-games

Morrissey and NME settle over racist claim
Artists , Defamation / July 2012
UK

DEFAMATION Artistes IPC, publisher of the NME and Morrissey have announced they are settling their recent legal dispute. Morrisey was suing the publisher and then editor of NME Connor McNicholas over an interview the music weekly ran with him back in 2007 in which the singer appeared to say that an “immigration explosion” had damaged Britain’s identity. Morrissey immediately hit out at the magazine and its then editor Conor McNicholas, arguing they had twisted his words to make him look racist, so that the interview would be more sensational and sell more copies. The NME always denied any such editorial meddling. In November last year Mr Justice Tugendhat allowed the case to proceed despite a four year delay. The NME have now published an apology for the ‘misunderstanding’ which reads “In December 2007, we published an article entitled ‘Morrissey: Big mouth strikes again’. Following this, Morrissey began proceedings for libel against us. His complaint is that we accused him of being a racist off the back of an interview which he gave to the magazine. He believes the article was edited in such a way that made him seem reactionary”. The apology continues: “We wish to make clear that we do…

Cookie Update: Simkins’ Early Warning 14/06/2012 – A tough cookie to crack – update on implied consent
Data Protection , Internet , Privacy / July 2012
EU
UK
USA

DATA PROTECTION, PRIVACY Internet, Technology   Following on from Simkins earlier report (http://www.simkins.co.uk/ebulletins/LJAuktoughcookie.aspx), the ICO’s grace period for cookie compliance came to an end on 26 May 2012. The ICO has now also revised its guidance on the use of cookies. https://templatearchive.com/ico-cookies-guidance/ The revisions consist of new commentary on the scope for reliance on implied consent. The ICO acknowledges that implied consent can be a valid means of obtaining the user’s informed consent – especially in the case of analytics cookies, where implied consent may be a more practical and user-friendly means of obtaining consent. If the site operator is to rely on implied consent, the user must take some kind of step (such as visiting a website, navigating to a certain page, or clicking on a particular button) from which the user’s consent to the setting of cookies can reasonably be inferred. Simply visiting a website is not enough to imply consent on its own: there must be a sufficient indication that the user understands and agrees that, in addition to providing content or services, the site operator may store cookies on the user’s device. Implied consent depends, therefore, on providing the user with clear and readily available information…

Louisiana allows tax breaks for Superfest
Live Events , Taxation / July 2012
USA

TAXATION Live events industry   Louisiana has passed a law to allow the Baton Rouge city-parish to be able to provide a local tax break to keep the Bayou Country Superfest at Louisiana State University’s Tiger Stadium for years to come. The authorization came as Gov. Bobby Jindal signed Senate Bill 475 into law –  passed during the just-ended 2012 legislative session. Bayou Country Superfest promoters would be able to get a tax rebate that amounts to about a $300,000 loss in local sales tax revenue for entertainment events that take place in a large venue, for which only LSU’s Tiger Stadium fits the definition. The tax break would be performance-based where average attendance at events has to be at least 25,000. The rebate would be on ticket sales and parking charges associated with the event. Tickets for the recent Memorial Day weekend event ranged from $50 to $250 a day. City-parish officials originally sought a state tax break too but that provision got stripped during the legislative process. SB475 sponsor state Sen. Yvonne Dorsey-Colomb, D-Baton Rouge, said the concerts have been profitable for LSU and bring thousands of country music fans to the area where they spend money. During…

UK tax avoidance scandal reaches Take That
Artists , Taxation / July 2012
UK

TAXATION Artistes   TAKE THAT became the latest celebrities caught up in the UK’s tax avoidance scandal after PM David Cameron said yesterday he would look into a £480million investment scheme used by some band members. The Prime Minister also lashed out at comedian Jimmy Carr, branding his tax avoidance “morally wrong”. Carr has subsequently apologised for investing in the contentious scheme known as K2 after it was revealed that he had paid £3.3million a year into a Jersey-based fund which cut his tax bill to just 1per cent by loaning him money back. Now an investigation has found that Take That stars Gary Barlow, Howard Donald, Mark Owen and their manager Jonathan Wild ploughed £26 million into a music investment partnership run by Icebreaker Management which enables them to cut their tax liability dramatically. Over 1000 people contributed £480m to 62 music industry partnerships that Her Majesty’s Revenue and Customs (HMRC) claim act as tax shelters. Some commentators have called for Gary Barlow to be stripped of his recently awarded OBE if the claims are true. Lily Allen reportedly said “how are tax avoiders the moral equivalent of benefit cheats? Surely they’re a hundred times worse” http://www.guardian.co.uk/music/2012/jun/20/take-that-tax-avoidance-investigation?newsfeed=true

Universal’s royalty reducers in the spotlight
Artists , Contract , Record Labels / July 2012
EU
USA

CONTRACT Artistes, record labels Attempts by Universal Music Group’s lawyers to hide their royalty reducing practices from court scrutiny in the FBT (‘Eminen’) case have failed and indeed have provoked fairly forthright comment from the judge, Philip Gutierrez. UMG had argued that any royalty that had to be paid to FBT would be paid on a “net receipts” basis – but this was latterly challenged by FBT who had discovered that only about 29% of international revenue (here from the sale of Eminen recordings) actually returns to the major’s Aftermath division, with the other 71% being kept by the local Universal companies that actually sell the music: and 50% of 29% is a lot less than 50% of 100%. UMG felt that the Judge had accepted the “net receipts” basis but Judge  Gutierrez has made it clear he has not, saying in a written judgement that [a] he did not mean to make a ruling on this matter when asked for clarification on “our net receipts” last year, and [b] he doesn’t believe that FBT were aware that Universal intended for the international royalties issue to be resolved via that clarification either, because there would be no logic in them…