More on US copyright and retransmissions
Copyright , Internet , Music Publishing / December 2014

COPYRIGHT Internet, sound recordings   The introduction of so-called geo-fencing technology has become the next technological development to call into question the meaning behind US copyright law. This time, the question is whether webcasts which are limited in transmission area by geo-fencing, are subject to licence requirements or royalty payments for performance of sound recordings under the US Copyright Act. Confirmation is sought by Verstandig Broadcasting – the owner of several FM stations in Virginia. Under the Copyright Act, a webcaster is bound to pay royalties for sound recordings performed in their webcast. Although broadcasters are exempt from paying these royalties in relation to their broadcast programming, they are not when retransmitting the performance over the Internet. Under a narrow exception at s114(d)(1)(B)(i) of the Act, retransmissions are also exempt, if the radius of the transmission is no further than 150 miles from the broadcast transmitter. Geo-fencing allows a webcaster to set boundaries on the accessibility of their webcast depending on the physical location of the recipient (based on the recipient’s computer’s IP address, WiFi, GSM access point and GPS coordinates). The technology was largely developed to help internet gambling operators, as individual US states gradually liberalise gambling within their…

Turtles’ pre 1972 copyright victory opens up a can of worms for broadcasters

COPYRIGHT Internet, broadcasting, recorded music   The Turtles, the 1960s pop band,  have  won a second victory against SiriusXM Holdings Inc. U.S. District Judge Colleen McMahon in Manhattan rejected Sirius’ request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band, best known for the hit “Happy Together” without permission or paying royalties. She said that unless Sirius raises any factual issues requiring a trial by December 5th, she will rule outright for the plaintiff, Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman, and begin to assess damages. The Judge said “Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed…. That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded…

Marvel man wins against Killah

COPYRIGHT Recorded music,   Jack Urbont, who created music for ‘The Marvel Super Heroes‘ television show in the ’60s has won a lawsuit over sampling. The three-year-old copyright infringement lawsuit brought by Urbont against rapper Ghostface Killah ended with a New York judge entering a default judgment in favour of the plaintiff. According to Urbont’s 2011 lawsuit, Ghostface Killah (real name: Dennis Coles) sampled the “Iron Man Theme” on two tracks of the rapper’s second album, Supreme Clientele. It was no easy matter suing Wu-Tang Clan member Coles – initially he could not be located and the court allowed service by a publication notice – and then his lawyer requested permission to withdraw from the case on the grounds he hadn’t been paid and that his client refused to communicate with him. Ghostface then failed to show up for a deposition, which led to a warning from the judge about sanctions and a default judgment. With Coles still AWOl,  Urbont sought a default judgment as well as fees and expenses, and this was granted by U.S. District Judge Naomi Buchwald. Urbont’s attorney Richard Busch said “As far as Mr. Coles (Ghostface) is concerned, we will now submit evidence on damages to establish…

TPB’s Fredrik Neij finally detained
Copyright , Internet / December 2014

COPYRIGHT Internet   The Times reports that one of the world’s ‘most wanted hackers’ has been arrested. And who is it? Well none other than Fredrik Neij, one of the four men who created The Pirate Bay. Neij was arrested crossing from Laos into Thailand, seemingly by Thai immigration officials responding to an Interpol arrest warrant. Local reports say that whilst living in Laos with his wife, he also had a home on Phuket and had financial assets of £95,000 as a cash balance. He was the last remaining convicted Pirate Bay man at large. He and his co-founders Gottfrid Svartholm Warg and Peter Sunde were found guilty of multiuple contributory copyright infringement in the Swedish courts in 2009. After a lengthy appeals process (with Svartholm not even showing up for appeal hearing) all but Carl Lundström – the fourth member – went on the run –  Lundström having negotiated down his sentence to house arrest. Svartholm Warg made it to Cambodia, but was recently extradited to Denmark on serious hacking charges (against the Police) and sentenced to three years and a half in prison.  In June Peter Sunde was arrested in southern Sweden. Sunde had been living in Berlin, Germany, seemingly without a…

Dancing Jesus pair receive prison terms

COPYRIGHT Internet, recorded music   The two men behind the Dancing Jesus file sharing forum have been sentenced to prison terms. Kane Robinson, 26, of North Shields, the site’s owner and creator, was sentenced to 32 months and 22-year-old Richard Graham, from Leicestershire, to 21 months at Newcastle Crown Court. Graham, who uploaded 8,00 songs to the site, had earlier pleaded not guilty but changed his plea to guilty when the evidence was presented.. The two men were subject to a private prosecution led by record industry trade body the BPI after an investigation by the City Of London Police. Robinson pleaded guilty to copyright crimes before trial. Of the 8000+ tracks Graham shared via the Dancing Jesus site, about two-thirds were pre-release.  Commentators said that the sentences were similar to those found in criminal copyright convictions relating to the manufacture and sale of bootlegged CDs or DVDs. Commenting on the sentences, David Wood, Director of the BPI’s Copyright Protection Unit, told reporters: “Today’s sentencing sends a clear message to the operators and users of illegal music sites that online piracy is a criminal activity that will not be tolerated by law enforcement in the UK or overseas. Piracy –…

Oister Oi! A small episode of infringement
Copyright / December 2014

COPYRIGHT Recorded music, advertising   This update comes from the 1709 copyright blog and examines litigation in Denmark before the splendidly-named Maritime and Commercial Court in which a production team and reggae band sued an advertising agency and a mobile broadband provider for copyright infringement involving a very short snippet of work. The defendants initially asked the claimants to produce both text and music for a commercial. This was done; the defendants approved the material and a deal was struck between them which expired in February 2013. Some time after the expiry of the agreement, the defendants produced a new commercial which, said the claimants, used a three-note music sequence and the words “oister oi” which infringed copyright in the work originally produced under the agreement. The defendants denied any infringement, saying that the text merely consisted of the broadband provider’s name, Oister, and the word ‘oi’ [apparently ‘hello’ in Portuguese: can someone verify this?], and the music was only three notes taken from a whole piece. The court ruled that, when assessing whether the fragment “Oister Oi” was protected by copyright, the text and music must be evaluated as a whole and had to have an overall level of…

Space oddity back online
Copyright , Music Publishing / December 2014

COPYRIGHT Music publishing   Astronaut Chris Hadfield’s “goosebump-inducing” cover of “Space Oddity?” which had amassed 23.4 million hits before it was taken down from YouTube is back online after  Hadfield secured fresh permission from Mr Bowie’s representatives to use the extra-planetary recording, which was made aboard the ISS at an elevation of 250 miles (400 km), after a five month hiatus. Bowie himself loved it, posting on Facebook that it was “possibly the most poignant version of the song ever created” and an initial one-year agreement which has now been extended after a “careful and exacting” legal process with Hadfield saying “And now, we are so happy to be able to announce that my on-orbit cover of Space Oddity is back up on YouTube. This time we have a new 2-year agreement, and it is there, for free, for everyone. We’re proud to have helped bring Bowie’s genius from 1969 into space itself in 2013, and now ever-forward. Special thanks to Onward Music Ltd, to the Canadian Space Agency and NASA, to musicians Emm Gryner and Joe Corcoran, to videographer Andrew Tidby, to my son Evan, and mostly to Mr. David Bowie himself. For the countless others who have helped work to bring about…

Ek talking up Spotify in battle with Swift

COPYRIGHT Recorded music, internet   Spotify’s Daniel Ek has responded to Taylor Swift and other critics in a lengthy blog post reigniting the debate prompted by Swift pulling her catalogue from free (freemium) streaming services. Ek begins by saying “Taylor Swift is absolutely right” (referring to remarks the singer made in a Wall Street Journal  and Yahoo interview) adding “Music is art, art has real value, and artists deserve to be paid for it. We started Spotify because we love music and piracy was killing it. So all the talk swirling around lately about how Spotify is making money on the backs of artists upsets me big time”. Ek then detailed how the Spotify payment model works and revealed that Spotify has now paid out $2 billion to the music industry since launching in 2008, $1 billion of that in the last year and that Spotify now has 50 million active users, 12.5 million of whom are paying subscribers – an increase of ten million and 2.5 million respectively since the last lot of official figures released back in May of this year. However Ek somewhat failed to address why a relatively small share of these streaming royalties are shared…

Federation of Small Businesses says concerns remain with public performance licensing

COPYRIGHT Live events sector, retailing, music publishing, recorded music   The Federation of Small Businesses has said that the music industry’s performing right collecting societies still have some way to go in improving the way they work with small to middle sized enterprises, despite acknowledging some improvements in recent years. The UK government has, in recent years, put some pressure on collecting societies including PPL and PRS for to adopt ‘minimum standards’ of service to licensees and both PPL and PRS had already updated their own codes of conduct to bring them in line with post-Hargreaves standards back in 2012. But citing its own research, the FSB said last week that it had found nearly a quarter of its members with a collecting society licence had made a complaint of some sort about the collective licensing system. The Federation added: “The findings also show the lack of progress towards achieving greater transparency and simplicity of charges over the past twelve months. Without such progress, trust amongst small businesses in the current system will be undermined”. FSB National Chairman John Allan told reporters: “Although collecting societies have a strong code of conduct in place, we are not convinced they are making…

Rolling Stone’s Australian tour cancellation claim in dispute
Contract , Live Events / December 2014

CONTRACT Insurance, live events   L’Wren Scott’s tragic and unexpected suicide prompted the Rolling Stones to cancel a number of Australian dates and resulted in a claim against the bands $23.9 million insurance policy. As Mick Jagger’s partner, Scott was named in the policy which would have covered cancellation in the event of the death of close family members of the band and indeed possibly senior tour personnel and the tour cancellation occurred after Jagger was “diagnosed as suffering from acute traumatic stress disorder” and advised by doctors not to perform for at least 30 days. However, reports in early November said that underwriters apparently argued that Scott might have been suffering from a pre-existing but undeclared mental illness at the time the insurance policy was agreed, which would, they argued, render cover in relation to her death invalid. It emerged that the insurers then refused to pay out $12.7 million on the claim – resulting in a further legal claim in the London courts by the band.  However the matter came to wider attention because of legal efforts in the US by the insurers to gain papers relating to Scott’s mental health prior to her death. According to The…

Gaga scout nets $7.3 million
Artists , Contract / December 2014

CONTRACT Artistes   Wendy Starland has won $7.3 million from Lady Gaga’s former producer Rob Fusari after a US court ruled yesterday that Fusari had broken an agreement to split his earnings from Gaga with Starland, the talent scout who discovered the Poker Face star. Starland was tasked by Fusari to find “the female equivalent to the lead singer of The Strokes” in 2005. She eventually discovered 20 year old singer Stefani Germanotta and introduced her to him. The singer and producer then began working together, eventually developing her into Lady Gaga.. Fusari himself sued Gaga in 2010, claiming that he was due a bigger cut of her income than what he was already receiving for production credits on her first album. The pair eventually reached an out-of-court settlement. Some of the details from the current case and Fusari’s own case have been kept confidential by the courts after Gaga asserted that information in papers relating to the case was “sensitive, private and personal” and would “inflict significant personal and professional harm upon” her if it was made public and whilst a partial seal was granted, details of the singer’s deposition in the current case, given in September, were made4…

UK’s anti tout law moves forwards
Consumers , Live Events / December 2014

CONSUMER LAW Live events sector   The UK’s House Of Lords has voted to include a new clause in the Consumer Rights Bill that would force people touting tickets online to provide buyers with  extra information, a move designed to make it clearer who exactly it is reselling tickets, how big a mark-up is being added, and what the risks are to the consumer by buying tickets on the secondary market. The amendment stems from a report published by the All-Party Parliamentary Group On Ticket Abuse back in April, which hoped to speed up the prospect of some ticketing touting regulation by amending the in-development Consumer Rights Bill, rather than having to promote bespoke ticket touting legislation to government or via a private members bill. The amendment, which was approved by a small margin – 183 votes to 171 by the Lords with cross party support  – would oblige a ticket seller using a resale site like Viagogo, Seatwave or StubHub to reveal their identity, declare the face value of tickets they are selling, provide seat numbers and booking references associated with the ticket, and state whether the terms and conditions of the ticket being sold give the promoter the…

Tennessee’s anti scalping laws have never been used
Competition , Live Events / December 2014

COMPETITION Live events sector   For six years, Tennessee has had a law making it illegal to use special computer software – bots – to buy large quantities of tickets to popular concerts and sporting events. But despite the apparent prevalence of the practice, no one has been prosecuted for this hard-to-prove crime in Davidson County according to records obtained by the Tennessean from the Davidson County Criminal Court Clerk. Whilst artists and promoters have to  resort to ticket limits and paperless ticketing, which required the purchasing credit card and matching photo identification to get into some shows, large numbers of tickets showed up on ticket resale sites the. It seems enforcing the law is complicated for a variety of reasons, including highly sophisticated software that scalpers use to crack computer systems that companies such as Ticketmaster use to sell tickets. There are also jurisdiction issues because sometimes out-of-state scalpers will target shows in Tennessee despite a law which says that it is illegal to own, use or share bot software and that violation of the law is a class A misdemeanor punishable by $500 per ticket, or any profits made from each instance, whichever is higher. There have been…

Legal threats to women in Iran for singing and playing music
Censorship , Live Events / December 2014

CENSORSHIP Live events sector Women in Iran are being threatened with legal action for singing or playing music in the latest clampdown on civil liberties within the religious dictatorship. A group of members of parliament in Iran have called for tougher action against women flouting the law. The spokesman for the parliament’s Security Commission Hossein Naghavi said in an interview with the state-run Mehr news agency: “If government officials do not take into account the remarks by the lawmakers, parliament will use its legal powers to address this problem.” “Women singing or playing a musical instrument is contrary to beliefs and religious values and in many cases, these prohibitions are not respected in this country.” The clerical regime has stepped up restrictions against women’s participation in the arts in recent months, cancelling concerts for having women musicians performing or for the use of the term ‘concert’.

Bahrain clamps down on unlicensed music and dancers
Licensing , Live Events / December 2014

LICENSING Live events sector   A total of 28 four-star hotels in Bahrain have had a music ban imposed on them after the Culture Ministry found them to be violating the law that regulates tourism activities. The ban, which also includes hiring dancers and music bands, will be for one month, according to Gulf Daily News. Culture Ministry assistant undersecretary for tourism, Sheikh Khalid said the ban comes after numerous breaches of the law, despite repeated warnings and meetings with representatives of the hotels, according to the report. “The decision was taken after surveying 154 violations at 28 four-star hotels despite repeated warnings since 2013,” Sheikh Khalid said. In a statement to Bahrain News Agency, he said the hotels that breached the law had transformed restaurants and cafes into discos and dancing floors, hired so-called singers without licences and exceeded the legal work timing which represented an affront to the Bahrain’s social traditions.

“Anti lout’ law used to ban gathering
Licensing , Live Events / December 2014

LICENSING Live events sector   A new ‘anti-lout’ law to stop large mobs of people gathering will be used for the first time to ban 500 boy racers from meeting at a retail park. The Public Spaces Protection Order, which became law on 20 October, gives town halls sweeping new powers to outlaw any activity which may have a ‘detrimental effect’ on the quality of local life.  The Daily Mail reports that “Initially intended to clamp down on antisocial behaviour such as begging and spitting, council officers can put up signs banning an activity in a specified area, either round the clock or during specific hours.” Anybody flouting the order will be liable for an on-the-spot fine, normally ranging from £70 to £100, issued by a police officer, PCSO, council worker or private security guard employed by the local Town Hall. Colchester Council, in Essex, plans to become the first to use the law to make the car park at Turner Rise Retail Park in Colchester the subject of the Public Spaces Protection Order. It will be the first time the new order has been imposed, and it will outlaw non-customers from the car park between 6pm and 6am. It…

Police to investigate ‘fake objections’ in cancelled Garth Brooks saga
Licensing , Live Events / December 2014

LICENSING Live events sector   A file has been sent to the Director of Public Prosecutions in Ireland following the cancellation of the series of Garth Brooks concerts at Dublin’s Croke Park. Whilst Dublin City Council were prepared to licence three of the concerts planned for the July 25-29 block, they were not prepared to licence them all and Brooks took a ‘all or none’ stance resulting in the cancellation. The Council had based their decision on the ‘unacceptable level of disruption’ the run of shows would have on local residents and businesses – but it now seems that some of the 384 objections received from local residents may have been fake – with promoter Peter Aiken, who lost over E1 million in the debacle, saying some 40% of the objections were suspect. The Council confirmed that police investigations of a sample of 200 objections showed that 64% were ‘not suspect’.   Audience magazine Issue 178 November 2014

Rappers album content leads to criminal charges
Artists , Criminal Law / December 2014

CRIMINAL Artistes   HipHop Dx reports that rapper Tiny Doo is facing criminal charges because his “No Safety” album implies that the rapper has gang ties. Doo (Brandon Duncan) is charged under laws that make it an offence to benefit from the violent actions of fellow gang members. According to ABC 10, whilst Duncan has no criminal record,  he and 14 other members of the gang are being charged for being involved in nine shootings since April 2013. Prosecutors are saying that Tiny Doo’s “No Safety” album sales have been supported by the reputation of the gang. This is the first time the law is being put into effect.  The No  Safety cover artwork features a gun and bullets. The lyrics discuss themes such as selling drugs, killing foes and making a better life for his family. Duncan’s attorney, Brian Watkins, says that there is no reason for his client to be charged saying “He has no criminal record. Nothing in his lyrics say go out and commit a crime. Nothing in his lyrics reference these shootings, yet they are holding him liable for conspiracy. There are huge constitutional issues.” Law professor Alex Kreit added “The Constitution says it can’t…

Universal flexes Motown muscle
Live Events , Trade Mark / December 2014

TRADE MARK Live events sector   At least two Motown tribute acts who perform songs that originated with the legendary label and which use the record company’s name as part of their stage name have been threatened with legal action by Mowtown’s owner, Universal Music, According to The Stage, The Magic Of Motown and Motown Magic have both been told that they must change their names, hand over web domains and meet legal costs, or face legal action. Universal lsay that the acts are infringing trademarks by using the ‘Motown’ word while operating “in the same field as our client and hence there is a commercial conflict”. It is thought that the action has been prompted by the launch of ‘Motown The Musical’ – created by Motown founder Berry Gordy Jr and featuring songs made famous by his now Universal-owned label (and with official show merchandising sold by Universal’s Bravado) – which will arrive in London next year. Ashley Blake of Motown Magic told The Stage: “They have never complained before, but then a musical about Motown is announced and suddenly they are clamping down”. He also claimed that, under the major’s terms, once they’d changed their name the band…

Industry seeks judicial review for new private copy exception
Copyright / December 2014

COPYRIGHT All areas   As expected, the UK music industry is set to fight the private copy exemption added to British copyright law earlier this year through the courts. On 1 October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force. This introduced the UK’s private copying exception, as contemplated by Article 5(2)(b) of the Copyright Directive (2001/29/EC). At its heart, the purpose of the UK exception was said to be to legitimise format-shifting i.e. it allows consumers to copy music from their CDs onto their MP3 players (which, as you may well be thinking, people have been doing for years anyway, regardless of lawfulness) although it also covers cloud lockers and other types of personal copying. The Government now faces judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians’ Union (MU) and cross industry group UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, the government has introduced the exception without means of ‘fair compensation’ for musicians, composers and rightholders, as required by the Copyright Directive….

Power says PRS injunction against him set aside
Copyright , Live Events / December 2014

COPYRIGHT Live events sector   Vince Power has said that the injunction issued against him as a result of legal action by the music publishing sector’s collecting society PRS has been set aside in court. PRS had claimed that Power’s Hop Farm festival operated without a licence from the society between 2009 and 2012. The company that operated the Hop Farm event during that time, Music Festivals plc no longer operates but PRS argued that Power should be held personally liable for the unpaid royalties as the person in control of the company at the time. Power didn’t respond to PRS’s lawsuit and the courts ruled against the promoter by default, ordering him to pay the society’s legal costs and to settle the case against him. It was reported at the time that Power had been banned from playing music in public until he updates his licences. He will also have to cover the £7,987 in legal costs incurred by PRS. Power argued that he had not been aware of the PRS’s litigation against him, and had never been formally served papers and the promoter sought to have the injunction set aside and, according to Power’s spokesperson, that has now…

Eagles take action against unauthorised screenings
Copyright , Live Events / December 2014

COPYRIGHT Live events sector   Don Henley and Glenn Frey of The Eagles have launched legal action against a man they say screened bootlegged live footage of the band at a ticketed event in October without permission. According to New York Daily News, Henley and Frey filed a lawsuit in New York, claiming that Frank Shelley was using the film to “bolster his reputation as a purported music industry ‘insider’ with close connections and ties to many classic rock greats”. They add that they have previously sent cease-and-desist letters, with which Shelley had refused to comply.

UK brings in new exceptions for private copying, quotation and format shifting
Copyright / November 2014

COPYRIGHT All areas   Revisions to the UK’s copyright law means that consumers can now make back up copies of CDs, MP3s, DVDs, Blu-rays and e-books on local storage or in the cloud – but only of their own copies. The exception to copyright is for personal use, it must be non commercial, and it remains an offence to share the data with friends or family – and the exception does not extend to computer programmes.  It’s still not allowed to circumvent any copy protection on music, movies and ebooks. Recording of streaming media is also forbidden along with making copies of movies or music consumers have rented or borrowed There is a second new exception for quotation that permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). The change to…

SiriusXM gets more bad news
Copyright / November 2014

COPYRIGHT Broadcasting, recorded music   SiriusXM have had some more bad news: A California federal judge had already delivered a “legal earthquake”by finding that SiriusXM had violated the claimant’s (sixties band the Turtles)  pre-1972 master copyrights by playing their music without licensing it or paying performance royalties and now another fesderal judge who had indicated some support for SiriusXM’s decision has now had a change of heart and now is minded to follow the Carifornian court.  Los Angeles Superior Court Judge Mary Strobel is presiding over a similar case brought by Capitol Records and other record industry giants; Judge Strobel had previously expressed her inclination to reject proposed jury instructions offered by the record companies, but now she had a change of heart by granting what the record companies were seeking. “Plaintiffs ask the court to take judicial notice of the order granting summary judgment in Flo & Eddie Inc. v. Siruis XM Radio, Inc,” she writes. “While a federal trial court opinion is not binding on this court, the court finds the logic applied in that order interpreting Civil Code §980 to be persuasive.” A new bill in Congress to apply federal protection for per-1972 sound recordings, called the Respect…

Eminen takes aim over political use of Lose Yourself
Copyright , General / November 2014

COPYRIGHT Music publishing   After the National Party of New Zealand used the Eminem song Lose Yourself  as part of their political campaign, Eminem’s publishers, Eight Mile Style LLC, and Martin Affiliated LLC  filed proceedings for copyright infringement in the High Court of Wellington, seeking damages. Under s.29 and s.32 of the Copyright Act 1994 of New Zealand, copyright in Eminem’s song would have been infringed if the political party played the song in public without having an adequate licence agreement. Joel Martin, a spokesperson of the publishers, said that nobody had contacted them to use the song. If they are found liable for copyright infringement, the National Party risks paying a five-figure sum to Eminem’s publishers. However, the National Party argues that they purchased the appropriate rights to use the music. They bought them from Beatbox (a music supplier based in Australia and Singapore), through APRA AMCOS. APRA AMCOS is the Australasian body that acts as local agents for music licensing companies around the world and is a reputable body. Chris Hocquard, a copyright lawyer from Auckland, said that if the National Party were found to have infringed copyright, they may be able to go back to Beatbox and…

Grooveshark plans appeal
General / November 2014

COPYRIGHT Internet, recorded music   In September 2014 a federal judge in New York ruled that Grooveshark, the controversial online music service, had infringed on thousands of their copyrights. Grooveshark (Escape Media Group) streams music uploaded by its users and Grooveshark’s defence has long been that this is legal under the U.S. Digital Millennium Copyright Act, the federal law that protects websites that host third-party material if they comply with takedown notices from copyright holders. The company relies on advertising for its revenues. Granting summary judgment in a case filed in 2011 by the three major record companies, Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because it was it’s own employees and officers — including Samuel Tarantino, the chief executive, and Joshua Greenberg, the chief technology officer — who uploaded a total of 5,977 of the labels’ songs without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act –  with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.  According to Reuters, evidence against the executives included a 2007…

Music hits the right notes for business success
General / November 2014

COPYRIGHT Music publishing , recorded music   A lot of us seem to pay twice when we listen to music in the workplace  – once because the broadcaster pays a blanket levy to the PPL and PRS for Music – and then again because the owner of a shop, factory, or garage also pays for music in the workplace – even if it’s just for their own staff and not customers. There have been a number of legal challenges to this over the years in the British Courts, including the leading 1943 judgement in Turner v PRS which seemingly supports PRS’s view that “If your staff or customers are listening to music on your premises, played by any means from live performance through to radio, TV, CD or via the internet, you need our music licence”. The battle has extended to a number of decisions in the European Court of Justice which has managed to come to the conclusion that hotels do have to pay for providing music ti their guests – but dentists don’t have to pay! Case law references below. Musicians and writers deserved to be paid. But paid twice? Well, and no doubt with one eye on this argument and the need to…

Dancing Jesus duo plead guilty
General / November 2014

COPYRIGHT Internet, recorded music   Following news that the BPI was taking a case to criminal trial involving the pair behind Dancing Jesus website, the second defendant involved has pleaded guilty to illegally distributing music. Richard Graham, of Leicestershire, originally entered a not guilty plea, but changed it earlier this week after seeing the evidence against him being presented to the judge and jury. His guilty plea follows that of Dancing Jesus’ owner Kane Robinson, of South Shields, who entered his guilty plea in January this year. The UK-based website was taken offline in 2011 after US Homeland Security seized the server on which it was hosted. City Of London Police arrested both the site’s administrator and one of its most prolific uploaders, known as Trix. Although initially subject to a police enquiry, the case was brought as a private prosecution by the BPI on behalf of the recorded music industry at Newcastle Crown Court for the illegal distribution of music via an internet. Commenting on the investigation, the director of BPI’s Copyright Protection Unit, David Wood, said: “This case is significant. The guilty verdict confirms that posting illegal online links to music is a criminal offence, which economically harms…

xx claim rip off by Hugo Boss
General / November 2014

COPYRIGHT Recorded music   XL affiliate Young Turks has claimed that an advert released by Hugo Boss earlier this year contained a soundtrack that sounded very similar indeed to ‘Intro’, a track by one of the label’s bands The xx. The label took to Twitter to ask the German fashion company: “As a firm built around original design, isn’t it odd that you’d pay for such a poorly disguised fake?” The tweet then linked to the Hugo Boss commercial on YouTube. The link to the advert has now been removed from the below article and has been taken down from YouTube due to a ‘copyright claim by UMPI’. Just a couple of weeks  earlier singer and producer SOHN claimed that car manufacturer Audi had used part of his song “Lessons” without his permission in a commercial for their Audi A3 Sportback – or at least used a sound alike re-recording. Previously Beach House had hit out at Volkswagon back in 2012 for a sound alike track and Tom Waits settled with car firm Opel over a sound alike track used in an advert in 2007. The 1988 case of Bette Midler v Ford Motor Co found that hiring a sound…

Jay Z, Chauncey Mahan and a copyright ownership dispute
Artists , Copyright / November 2014

COPYRIGHT Recorded music, artistes   This from the IPKat.   In July this year, Grammy award winner producer and sound engineer Chauncey Mahan launched legal proceedings in the Court of Judge Schofield (District Court of New York, case 14-cv-5075 LGS) against Shawn Corey Carter known by his stage name Jay Z, an American rapper, and Roc-A-Fella records under the Copyright Act 1976.  Mahan claimed that he should be named a joint author and hence a joint owner of the copyright of six Jay Z albums (45 published sound recordings) including 1999’s “Vol. 3… Life and Times of S. Carter” and 2000’s “The Dynasty: Roc La Familia” on which he worked from August 1999 to October 2000. Mahan said he was instrumental in creating the sounds of the releases since all of them were tracked, recorded, edited, arranged and mixed by him at Sony Studios — where he rendered his technical and aesthetic talents without direct or indirect supervision of other putative joint authors. Mahan brought his own digital audio workstation, i.e, pro-tools system, into Sony Music Studios and interfaced his then state-of-the-art equipment with Sony’s built-in technology. However, Jay Z’s stand on this is that Chauncey is “attempting to use…

Juicy J and Columbia face challenge over ownership of video
Artists , Copyright / November 2014

COPYRIGHT Recorded music, artistes   A photographer and a video production company involved in producing Juicy J’s “Bandz A Make Her Dance” music video are seeking damages from the rapper and his record label, Columbia Records. Photographer Mahad Dar and Creative Dream Productions (CDP) have filed a suit alleging copyright infringement. The background shows a somewhat confused filming circumstances environment – there were a number of occurrences that halted and disrupted filming and although CDP secured extras, trailers for artists, and ‘craft services’ for the video in 2012 a misunderstanding over the cancellation of a guest appearance by  Lil’ Wayne, who was to also star in the video, meant that the preferred venue for filming was cancelled. Dar, who was the principal photographer for the video, claims no arrangement was ever made for the use of his images. According to Dar, he is the sole owner of the video footage.   The claimants are seeking injunctive relief and all profits from both the song and the music video which has had over 34 million hits on YouTube.

Music creator group calls a ‘fair trade’ in music streaming

COPYRIGHT Internet, recorded music, music publishing, artistes   A new report launched by the International Council Of Creators Of Music, or CIAM, has called for a more equal distribution of streaming royalties between the respective music rights owners – overhauling of the streaming royalty system which is increasingly seen as favouring record labels above music publishers, songwriters and artistes. CIAM is a global body that sets out to “protect the rights and assert the cultural aspirations of music creators”, while its report also has the backing of CISAC, the global grouping of music publishing collecting societies, as well as Music Creators North America and Canadian collecting society SOCAN. The report was written by Professor Pierre-E Lalonde, and it says: “The split in revenues between the different sets of rights holders is imbalanced. A combination of regulatory constraints, market imbalances and situations where major record labels negotiate with digital services for all categories of rights holders, has led to a significant disparity between the revenues paid to record labels and to creators”. He goes on: “In the business of streaming, the split of monies from streaming platforms is geared more favourably towards record labels and performers vs songwriters and music publishers”,…

EMI Publishing faces another lawsuit on foreign royalties from ‘Daydream Believer’ songwriter whilst War declare, well, war.
Contract , Music Publishing / November 2014

CONTRACT Music Publishing   Last month we commented on the how the estate of Duke Ellington is hoping to resurrect a royalties lawsuit against EMI Music Publishing, (now controlled by Sony/ATV)  after a lower courts sided with the music company in the legal dispute – seeking to establish that EMI had artificially reduced the royalties received by the entity Ellington had signed to as a songwriter by using its own subsidiaries to siphon off royalties. That claim has now failed again after an appellate court held that the copyright renewal that Duke Ellington signed in 1961 does not unfairly deprive his heirs of a portion of foreign royalties on works such as “Mood Indigo” and “Sophisticated Lady“. In Ellington v EMI Music, The New York State Court of Appeals ruled 5-2 that while changes in the music industry over the past 53 years have tended to make the contract and others signed in that era by artists like Ellington more favourable to music publishers, “clear and unambiguous” provisions govern EMI’s obligations to Ellington’s grandson Paul Ellington and the composer’s other survivors. Judge Sheila Abdus-Salaam, writing for the majority, said a plain reading of the contract says Ellington or his heirs are…

Toto lose digital royalty battle
Artists , Contract , Copyright , Music Publishing / November 2014

COPYRIGHT / CONTRACT Artists, recorded music   Sony Music Entertainment does not owe digital music royalties to the rock band Toto, best known for its 1980s pop hits “Rosanna” and “Africa,” a federal judge ruled. Toto was dissatisfied with the terms of a $8 million class action settlement that their fellow bands The Allman Brothers Band, Cheap Trick and other recording artistes reached with Sony two years ago over digital music download and streaming royalties, Rolling Stone reports.  Its auditor claimed that Toto deserved “50 percent net receipts” on digital downloads. The band reunited in 2010, and two years later sued Sony in the federal court, seeking $605,000 in compensatory damages for breach of contract and other claims. During discovery, the parties “put music executives on the hot seat”, but also reportedly quibbled over whether a “lease” and “licensee” agreement applied to their contract. Toto contended that the words meant the same thing, but Sony disagreed. U.S. District Judge Richard Sullivan turned to Black’s Law Dictionary and Webster’s Dictionary before ultimately siding with Sony on this issue. “[T]he dictionary definitions of the terms reflect that they are not synonymous, with ‘lease’ generally pertaining to rights in real or tangible property, and ‘license’…

Heartbroken – without your cash. Big hit helps Judge make decisions hitting big topics
Artists , Copyright , Music Publishing / November 2014

COPYRIGHT Recorded music, artists This update By Leeza Panayiotou, LLB(Hons)   In Henderson v All Around the World Recordings Ltd [2014] EWHC 3087 (IPEC), the Claimant Jodie Henderson’s damages were assessed to be a total of £35,000.00. But it’s the result of a fairly long process and  it’s interesting to see how the court reached this decision and quantum. The year was 2007 and Jodie Henderson (aka Jodie Aysha) and Tafazwa Tawonezvi (aka T2) charted at No.2 in the Singles Chart for 5 weeks and stayed in the Top 40 for over 40 weeks with the track ‘‘Heartbroken’’. Despite such success however, Henderson was never remunerated for her performance on the track, her appearance in the music video or for the use of her name. Though Henderson penned the lyrics herself several years before the tracks release (and she is now signed to Sony ATV music publishing), it was Tawonezvi who remixed the track into its ‘Bassline’ state (arguably the reason for the track’s mainstream success at the time). Tawonezvi had signed a deal with 2NV Records Ltd, presumably in recognition of his talents as a producer and DJ, and this paved the way for 2NV Records to sign a…

Newstead Town Ordinance shuts rock venue
Licensing , Live Events / November 2014

LICENSING Live events   “All is quiet in the rural community of Newstead, but this past summer, the rural, Western New York community served as a battleground in what has become a war on noise.” A fascinating battle has evolved in a war between local residents, and a local bar and grillw hcih opened a new music venue, Braun’s Concert Cove. The outdoor stage, in a structure said to resemble an aircraft hanger, has put on shows from several hard rock acts with audience numbering in the thousands for Ted Nugent, Yngwie Malmsteen, Pop Evil, Sebastian Bach and  Jackyl. But.on September 6th this year,  Winger played Braun’s last concert. It was under a contract already negotiated before “Braun’s Law” was finally passed by a rather split Town Board – and Newstead brought in a noise ordinance outlawing noises louder than 80 decibels after 9 p.m., and 65 decibels after 11 p.m.   More from Michael Hallisey on UpstateLIVE here

Japan to lift notorious “No Dancing” law
Licensing , Live Events / November 2014

LICENSING Live events sector Japan’s law, which prohibits dancing in clubs and bars (or any public venue, really) has unless they have a (still limited) dancing license were allowed to carry on, and even then, doors had to close by midnight or 1AM. The law, called fueiho in Japanese, will now be revoked. Their decision comes on the heels of a committee recommendation earlier this year, and will need to be ratified by Japan’s parliament – but in plenty of time for the 2020 Tokyo Olympics! And see MLU July 2014

Date set for fresh Citigroup – Terra Firma battle over EMI
Music Publishing / November 2014

CORPORATE LAW Recorded music   The battle over Citigroupo’s role in Terra Firma’s takeover of EMI is set to head back to the courtroom. The legal dispute went before a court in New York in 2010 and Citigroup prevailed but the appellate court ordered a new trial on the basis that some specifics of English law – which governed the acquisition – had not been properly explaining in the New York courtroom. It was (finally) agreed by both Terra Firma and Citigroup to move the dispute to the London courts and a date has been set for that hearing in June 2016. Confirming the trial date, Judge Julian Flaux said: “Serious allegations of fraud are made against the defendant and against three individual bankers”.

NFL bans Beats on the box
Trade Mark / November 2014

TRADE MARK Branding   In the USA the NFL has announced that it is banning football players from wearing Beats headphones on camera during broadcasts of its American football games. The announcement follows a new sponsorship deal with rival hi-fi equipment manufacturer Bose. A NFL spokesperson told Re/code: “The NFL has longstanding policies that prohibit branded exposure on-field or during interviews unless authorised by the league. These policies date back to the early 1990s and continue today. They are the NFL’s policies – not one of the league’s sponsors, Bose in this case. Bose is not involved in the enforcement of our policies. This is true for others on-field” although the NFL confirmed that under terms of its agreement with the league, Bose received a broad set of rights that entitle it to prevent players (or coaches) from wearing any other manufacturer’s headphones during televised interviews. The first fine has been handed out:  49ers quarterback Colin Kaepernick, who is paid to endeorse Beats by Dre, wore his Beats headphones during a postgame press conference, and the league punished him with a $10,000 fine.

Is This Henley a Shirt or a Musician?
Artists , Trade Mark / November 2014

TRADE MARK Artistes, merchandise By Marie-Andree Weiss writing on the IPKat   Don Henley, a member of the Eagles music band and also a solo musician, is suing clothing retailer Duluth Holdings in the CentralDistrict Court of California, alleging that an advertisement created by Defendant is an infringement of his trade marks and right of publicity and is also false advertising. The advertisement at stake shows a drawing of two tee-shirts known as “henley,” side-to-side, with the phrase “Don A Henley AND Take it Easy” printed on the left of the ad. A henley tee-shirt is a tee-shirt which does not have a collar but has a front placket closing with several buttons, generally three. I read on the Web that the term “henley” originates from the town of Henley-on-Thames, as rowers practicing there in the 19th century sported such shirts, but I cannot assert that this really is the origin of the term. “Take It Easy” is a colloquial expression, often used in the U.S. as a way to say good bye and is also the title of the Eagles’ first hit single. It is featured on the Eagles album Their Greatest Hits 1971-1975, which is, according to the Complaint, the bestselling album of all time in…

Security man sues Kiss over concert slip
Health & Safety , Live Events / November 2014

HEALTH AND SAFETY Live events sector   Timothy Funk, a security guard at the 25,000 capacity Klipsch Music Centre in Noblesville is suing the venue and the rock band KISS , their bassist Gene Simmons, his company and promoter Live Nation over claims that he suffered an injury after the band “foolishly sprayed the stage with water and confetti” on the 1st September 2012. Funk is seeking damages for injury and loss of wages and costs after falling on the ‘slippery, waxy and glassy’ stage.

Ultra security guard sues over collapsed fence injuries
Health & Safety , Live Events / November 2014

HEALTH & SAFETY Live events sector   A security guard injured when gatecrashers pushed down a perimeter fence at the Miami edition of the Ultra festival earlier this year has filed legal proceedings seeking $10 million in damages. Defendants include Ultra and its parent company Event Entertainment Group, the city of Miami, the firm handling security at the festival, and one of the concession operators at the event. Erika Mach suffered two skull fractures and a broken leg when fencing was pushed over. City officials subsequently said they’d warned festival organisers that the particular area of fencing that Mach was guarding was in risk of collapse if targeted by gatecrashers, leading to Miami mayor Tomas Regalado threatening to block future Ultra festivals in the city. According to Billboard, Mack alleges that inappropriate fencing had been used in that zone because the concession company also targeted in the lawsuit had requested a less severe kind of barricade to make it easier for them to access the festival site.

Theatre fall leads to prosecution and civil claim
Health & Safety , Live Events / November 2014

HEALTH & SAFETY Live events sector   A award winning theatre company faces a ‘substantial’ fine after a stage hand was left paralysed after walking through an unmarked “Juliet” door and tumbling 10ft onto the stage below. Rachael Presdee, 38, spent six months in hospital and was left paraplegic following the accident at Soho Theatre in central London, Westminster Magistrates’ Court heard. She is now wheelchair-bound and, unable to continue her career in theatre, has returned to her native Australia. The Soho Theatre Company Ltd pleaded guilty to Section 3 of the Health and Safety at Work Act for failing to protect the safety of visiting production staff, and to Regulation 3 of the Management of Health and Safety at Work Regulations for failing to identify and manage the risk to which such persons were exposed. The prosecution was brought by Westminster City Council Miss Presdee was working backstage on a 2012 production of Boys. The court heard Miss Presdee was adjusting the stage lights for an evening performance when she walked through the unlocked door – traditionally used for the balcony scene in Romeo and Juliet – into “thin air”. The door had been identified as a potential safety…

Pras sues New York Post over cancelled benefit gig allegation
Artists , Defamation / November 2014

DEFAMATION Artistes   One time Fugee Pras Michael is planning to  issue proceedings against the New York Post after the newspaper accused Pras of bailing on a “9/11 benefit concert” organised by his own charity, the Hope For Them Foundation. The article also apparently claimed that the Foundation had bounced a cheque to the venue, had falsely claimed its event was sponsored by MTV, and isn’t properly registered as a charity with state officials. But it seems the newspaper has added to the confusion as the benefit, whilst on the 11th September, was not actually a benefit related to the attack on the Twin Towers. Lawyers for Pras have also said he was not a board member for Hope For Them Foundation and the charity itself said “Pras is a good friend of the organisation and supports our cause but is NOT a board member”. A claim for $30 million in damages will be filed.

eBay judgment forces a Waken ticket rethink
Live Events / November 2014

TICKETING Live events sector   A decision in a dispute between eBay and German soccer team over the re-sale of personalised tickets which was favourable to the online retailer has prompted the organisers of Germany’s Wacken Open Air heavy metal festival to think again about personalising their tickets in 2015. Waken also had a trial pending with eBay over the re-sale of their own tickets, currently personalised, Lamenting a set back in the fight against ticket touts, Thomas Jensen from W:O:A promoters ICS explained that the same judge was hearing the W:O:A case – and the judge has previously decided  held that platforms such as eBay do not have to delete offers of the sale of personalised tickets from their sites.  Earlier this year secondary ticketing site Seatwave agreed with German promoters association BDV to remove personalised tickets from six Robbie Williams concerts from it’s site. Nick Huper from W:O:A explained that “There´s no law in Germany regarding personalized tickets, reselling personalized tickets, offering personalized tickets or jurisdiction”. W:O:A obtained an interim order against eBay at the District Court in Hamburg to delete all offers regarding W:O:A tickets in 2014 on the basis that personalized tickets aren´t a tradeable good…

Irish minister rejects Irish music quota for radio
Competition / November 2014

COMPETITION Broadcasting   FRENCH-style radio quotas for Irish music could contravene European law, Irish Minister Jan O’Sullivan has insisted. The minister  was responding to Labour colleague Deputy Willie Penrose, who was speaking in the Dail in support of Limerick songwriter Johnny Duhan’s call to set aside a minimum amount of airtime to Irish acts. Deputy Penrose said: “It is well argued by Mr Duhan that we are more vulnerable than any other EU country as we are very near England, and as many of our singers generally sing in English we are more exposed and susceptible to the cultural influence of England and the US than any of our EU partners”. Responding the minister said that while the government supported the promotion of Irish music, its approach had to be “consistent with EU and Irish regulatory structures”.

Universal exec pleads guilty to £650,000 fraud
Criminal Law , Record Labels / October 2014

CRIMINAL Recorded music   A former Universal Music executive has admitted in court to stealing almost £650,000 from the major music company. Duncan Schwier, who worked for the production music division of Universal’s publishing business, admitted to taking £643,697 from his employer. The fraud was only uncovered when Schwier was promoted last year and his successor, John Clifford, discovered a number of invoices that had been paid to non-existent companies. Schwier has enjoyed a long career in the music production business, originally joining Atmosphere Music in 1984. That company was subsequently bought by the original BMG, the publishing side of which was acquired by Universal in 2007. Becoming a General Manager for Universal Publishing Production Music, he had been very involved in the firm’s alliance with the BBC. Pleading guilty to the fraud, Schwier, without legal representation, told Hammersmith Magistrates Court that ill-health had led to him stealing from Universal. According to the Daily Mail, he said: “The background for this is a series of cancers for which I have medical reports”. Prosecutor Caroline Mungal said: “The Crown invite the court to commit this matter for sentence. You can see the value of the monies involved, in excess of £600,000. The…

Miley Cyrus fights ‘lewdness’ ban
Censorship , Licensing , Live Events / October 2014

LICENSING / CENSORSHIP Live events sector   Miley Cyrus has reportedly filed a legal challenge against her concert ban in the Dominican Republic. The star was set to perform a show in Santo Domingo on September 13th as part of her Bangerz Tour, but the Caribbean country’s national entertainment and radio commission (CNEPR) didn’t authorise the concert, citing lewdness as the reason why the show was cancelled. According to E! News, Miley has answered the cancellation by filing papers in a Dominican court claiming the council’s ban on artistic expression goes against the nation’s constitution. “Miley wants to defend artistic expression for all artists,” an insider explained to the outlet of the singer’s alleged decision to put forth a formal legal challenge. Local Dominican outlet Hoy previously reported a poll taken showed that 64% of voters agreed with the CNEPR’s decision to ban Miley’s show, but the rest opposed, arguing the ban violates freedom of expression. In a statement released last month, the CNEPR stated Miley ‘undertakes acts that go against morals and customs, which are punishable by Dominican law’ in her concerts. According to, the official letter went on to state the Wrecking Ball songstress wears inappropriate costumes…

Sony/ATV and EMI launch new pan European licensing scheme
Copyright , Music Publishing / October 2014

COPYRIGHT Music publishing   Sony/ATV, EMI Music, PRS and GEMA are set to build on the success of CELAS and PAECOL by launching SOLAR to administer pan European digital licensing for Sony/ATV and EMI music and compositions, replacing the previous set-ups. Sony/ATV chief Marty Bandier told reporters: “This agreement not only builds on our already successful relationships with PRS For Music and GEMA, but makes the licensing process in Europe more straight-forward as services will now have only one place to go for both Sony/ATV and EMI Music Publishing repertoire. It is also great news for our songwriters as we look to continue to facilitate licensing in this rapidly-evolving and expanding sector”.

Deadmau5 v Disney – the Mousequitears Dual On
Artists , Copyright , Internet , Trade Mark / October 2014

TRADE MARK / COPYRIGHT Artistes, broadcasting, internet   Disney is going after Deadmau5 (Joel Zimmerman) and his logo, opposing a trademark application he submitted in the US last year. The company made a move to block Zimmerman from trademarking his familiar Mau5 head in the U.S., claiming the image is too similar to its iconic mascot Mickey Mouse, who first appeared in the 1928 animated short Steamboat Willie. In a statement earlier this week, the producer’s lawyer Dina LaPolt pointed out that Deadmau5 has been using his logo, based on his on-stage headgear, for almost a decade and that he’s already managed to secure the trademark in 30 other countries, and she added that her client “will not be bullied by Disney and is prepared to fight to protect his rights to his property”. Zimmerman himself said ““Disney thinks you might confuse an established electronic musician/performer with a cartoon mouse. That’s how stupid they think you are” and Deadmau5 tweeted “Lawyer up, Mickey,” to his three million followers. But in a twist to this tale, Zimmerman found another way to fight back: he and his lawyer discovered that between 2009 and 2012, the Disney Channel ran a series called ‘Have…