Ticketmaster faces anti-trust action from StubHub
Competition , Live Events / May 2015
USA

COMPETITION Live events sector   In what could prove to be a landmark case in the sports ticket marketplace”, Live Nation’s Ticketmaster is being sued by eBay-owned StubHub over its official alliance with the Golden State Warriors basketball team. Ticketmaster is the primary ticket seller for the Warriors, and also operates the official season ticket resale platform, where tickets can be officially resold. The basketball team threatens to cancel any tickets it sees being touted on other secondary sites, like StubHub: reselling a ticket is usually a breach of the terms and conditions of the original purchase. The threat has apparently worked. StubHub claims that listings for Warriors tickets, which is currently the hottest ticket in the NBA, are down 80 percent in the past year. But StubHub has alleged that this amounts to anti-competitive behaviour on Ticketmaster’s part. The eBay firm says in its complaint: “If you are a Warriors fan and you want season tickets, you have one choice: buy them through Ticketmaster”. The company’s General Counsel Michelle Fang then told Bloomberg that her client was suing in the interest of Warriors’ fans, adding of Ticketmaster’s motives: “Given that they haven’t been able to win when we’ve competed on a…

Coachella faces class action over ticketing scheme
Competition , Live Events / May 2015
USA

COMPETITION Live events sector   A new class action accuses the companies behind Coachella and other music festivals of offering ticket payment plans that require would-be concert goers to forfeit everything they’ve paid toward the purchase of festival tickets if they are more than 10 days late on a single payment.  As the price of concert tickets has skyrocketed and in an effort to increase sales, festivals like Coachella and others have rolled out payment plans which allow concertgoers to make monthly payments toward the purchase of festival tickets.  Miss one payment, however, and the would-be concertgoer forfeits the tickets and all the prior payments.   According to a new lawsuit, the plaintiff and class representative purchased two tickets and a camping pass for Weekend 1 of the 2015 Coachella Music Festival for a total of $850.00, using the festival’s payment plan option.  After timely making four payments for a total of $617.90, fraudulent charges appeared on the plaintiff’s credit card, causing her bank to issue a new one.  Unbeknownst to plaintiff, the next payment on her Coachella payment plan was refused as a result of the new card number.  The plaintiff did not realize what had happened until March…

Finland follows US in digital rights ruling
Contract , Music Publishing / May 2015
Finland

CONTRACT Recorded music sector     A Finnish digital rights case could set interesting precedent over pre-iTunes catalogue is being brought by the family of a late artist who are in dispute with the local Universal Music subsidiary. The case centres on the so called ‘making available’ right.  Whilst record labels are usually the copyright owners when it comes to sound recordings – either through default ownership rules (eg in the UK S9 of the CDPA provides that the author of a sound recording is the producer) or by assignment in standard record contracts – in Europe there are also ‘performer rights’, which say that performers as well as copyright owners have certain controls over how their recordings are used. However when many contracts with heritage artistes were entered into ‘digital’ did not exist, as neither streaming or download platforms existing and there was no accompanying right meaning it can be argued that labels need to get new permission to licence services that are ‘making available’ recordings (which likely includes most digital platforms).   Many heritage acts appalled at the share of digital royalties they are receiving from the labels from digital income, not least as the major labels have…

IFPI publishes Digital Music Report 2015
EU
UK
USA

COPYRIGHT Recorded Music     The recorded music sector’s international trade body, the IFPI, has  published its Digital Music Report 2015, detailing key trends in the recorded music sector over the last year – with the headline news that digital music revenues are now on a par with physical globally, that global industry revenues are marginally down 0.4 per cent to US$14.97 billion in 2014, and that subscription services at the heart of the recorded music portfolio business. Digital revenues rose 6.9 per cent to US$6.9 billion, representing 46% of all global music sales and underlining the deep transformation of the global music industry over recent years. Total revenues in  2014 were US$14.97 billion although it should be noted that there has been a reclassification of SoundExchange revenues in the US from “performance rights” to “digital”.  This has resulted in an upward adjustment in digital revenues and growth, and an equivalent downward adjustment in performance rights revenues and growth.   The new report shows the industry in continuing transition, with consumers embracing the music access models of streaming and subscription.  Another steep increase in subscription revenues (+39.0%) offset declining global download sales (-8.0%) to drive overall digital revenues, while the number of…

Universal moves to settle digital royalty dispute – but the debates continue
USA

COPYRIGHT Recorded music, artistes     As expected, Universal Music has followed the lead of Sony and Warners in filing proposals to settle the class action lawsuits they face in the US over the digital royalty rate that they pay to their artists for downloads under contracts which are ‘pre-digital’ and therefor silent on the issue. The major labels initially all took the position that they would treat downloads as sales, but a wide range of heritage artists argued that download income relates to ‘licensing’ deals done with the download stores, with one case, between Eminen’s producers FBT Productions and UMG resulting in a appellate court victory for the artists position FBT argued they had a right to a 50/50 split of profits with Universal on sales of digital music and ring tones through online retailers such as iTunes and Sprint as these ‘Master Licensing’ deals attracting the higher royalty. The contract did not specifically mention income from download stores like iTunes, or what share the artist (and therefore FBT) should get from such sales but Universal have been treating download sales as being equivalent to CD sales paying a lower rate of 12-20%% as if these were physical sales. Whilst a district court refused summary judgment saying…

Garbage wars: photographer Pat Pope– the ‘internet warrior’ for photographic copyright ?
Copyright / May 2015
USA

COPYRIGHT Photography, book publishing   This update is from George Chin: George has worked as a music photographer for the past 30 years and George has worked officially with the Rolling Stones, Guns n’ Roses, Whitney Houston, Aerosmith, Iron Maiden and Bon Jovi, among many others. He is now studying for an LLB (Hons) at the University of Law in London. George runs a boutique photo agency (www.iconicpix.com), largely based on his image archive and those of other music photographers. He can be contacted by email at georgechin@iconicpix.com COPYRIGHT / CONTRACT: On the 2nd April, the music photographer Pat Pope, posted an open letter on his website (www.patpope.com). It began – “Dear Shirley, Butch, Duke, and Steve” – the names of the band collectively and professionally known as the Garbage. He goes on to state that he had been approached by their management company who explained that the band were working on a book for “self release” next year and they wanted permission to use some of his photographs in return for which they will give him a “proper credit” due to a “financially limited” budget; the implication being “we’re not going to pay you”. Aggrieved at this slight, he…

American terrestrial radio performance royalties for sound recordings move a step closer
USA

COPYRIGHT Recorded music, broadcasting     The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels solidified around a new piece of legislation in the Congress:  The Fair Play, Fair Pay Act, is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a ‘digital performing right’ to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. http://www.latimes.com/entertainment/music/posts/la-et-ms-fair-play-fair-pay-act-congress-radio-royalties-20150413-story.html

Songwriters and composers question U.S Publisher actions
USA

COPYRIGHT Music Publishing     An alliance of organisations representing songwriters around the world has published an open letter addressed to the US music publishing sector expressing concern at plans by a number of major publishers to pull song rights out of the American collective licensing system. The removal of digital rights from the two main performing right organisations ASCAP and BMI, means publishers can do direct deals with services like Pandora. free from any rules governing collective licensing. The major publishers in the US had begun moves to withdraw their digital rights from BMI and ASCAP, but a court ruling ruling seemingly prevented the rights owners from using a ‘menu’ approach to how they work with the collection societies, effectively saying the companies were either ‘all in’ or ‘all out’.  U.S. publishers are now  lobbying to have the collective licensing rules, contained within the so called ‘consent decrees’, revised to allow partial withdrawal. Meanwhile Sony/ATV chief Marty Bandier has threatened to completely withdraw his catalogue from the collective licensing system if the changes aren’t made.   Now a group of artists, songwriters, managers and lawyers have pointed out that that’s not as simple as it sounds. In Europe the collecting societies –…

CISAC welcomes EU moves – but criticise MEP Reda’s review
Copyright / May 2015
EU

COPYRIGHT Film and TV, all areas   CISAC says that the statement from Germany’s Federal Minister For Justice And Consumer Protection Heiko Maas and France’s Minister For Culture And Communication Fleur Pellerin backs its position that protecting the rights of authors should be an integral part of the ‘digital single market’. CISAC said: “France and Germany’s joint position has further emphasised that the modernisation of authors’ rights/copyright in Europe should be examined within the wider context of the digital single market package, in which establishing fair rules and fair regulations for all stakeholders should be a priority. This stresses the two countries’ intention to bring their legislative success in the analogue world to the digital context”. CISAC’s Director General Gadi Oron added: “Our 230 member societies around the world represent nearly four million creators who depend on effective protection for their works. The European territory is the largest market for royalty collections, accounting for 61% of the overall collections internationally. This figure not only shows the importance of the European market for creators, but also demonstrates the significant economic and cultural role played by creators” saying “It is vital to ensure that Europe continues to serve as a model for norm…

Australian ‘Three Strikes’ moves closer
Australia

COPYRIGHT Internet, recorded music   Australia’s telecoms sector has submitted the final draft of its plans for a three-strikes system to combat online piracy in the country. The draft was submitted to the Australian Communications and Media Authority, after input from over 370 interesting parties and the planned moves will see ISPs sending warning letters to suspected file-sharers. Australian ISPs have resisted the move, but the country’s government forced action late last year. As with other three-strikes programmes, a series of letters will be sent to web-users who rights owners suspect of accessing unlicensed content, the first being educational, but with subsequent correspondence ‘graduating’ to more severe. However the third strike will mean that the personal details (of those who ignore letters) being handed over to the rights owners, who will then be able to take legal action for copyright infringement. Web-users who get to stage three will have the right to appeal, The current set up also puts a cap on the total number of warning letters that can be sent each year, with 200,000 the current limit. Though that’s really a financial arrangement, and rights owners could push for more letters to be sent if they can agree financial…

Important sampling decision from the German courts
Germany

COPYRGHT Recorded Music, song writing   This Update is from Birgit Clark writing on the IPKat blog The German Federal Court of Justice (Bundesgerichtshof) this week had to decide on the legality of using short musical sequences as background loop for a rap song ( decision of 16 April 2015 – I ZR 225/12 Goldrapper).  In a copyright infringement case brought by French Gothic group Dark Sanctuary against German rapper Bushido, the Bundesgerichtshof disagreed with Higher Regional Court of Hamburg ( OLG Hamburg, decision of 31 October 2012 – 5 U 37/10) and held that the original link (or connection) between the lyrics and the music of a song is not protected by copyright.   Dark Sanctuary had objected to Bushido’s use of parts of their songs for 13 of his own rap songs. Bushido had electronically copied (“sampled”) sequences of about 10 seconds of the music of Dark Sanctury’s original song recordings, however without using the original lyrics. He had then turned these sampled melody sequences into a repetitive loop, combined this with a beat and added his own rap lyrics.  Dark Sanctuary regarded this use of their recordings as copyright infringing and inter alia demanded compensation and that Bushido cease using their music.  …

PRS for Music targets live music and festivals
Copyright , Live Events / May 2015
UK

COPYRIGHT Live events sector   PRS for Music (PRS) have launched a new eight week long Popular Music Concerts Tariff (‘Tariff LP’) Consultation to review the licensing structure for the use of music in the live music industry in the United Kingdom. Tariff LP is applied to ticketed live popular music events such as concerts and festivals. The consultation will run from 13th April to 8th June 2015. Tariff LP is a Tribunal tariff that was set in 1988 by the Performing Right Tribunal, which later became the Copyright Tribunal. Having failed to amend the Tariff in 2010 (after a much criticised review which alienated large parts of the festival sector who said the review was poorly timed as it coincided with their busy festival season in the UK) the PRS say the purpose of the 2015 consultation is to seek views on the findings of a comprehensive investigation by PRS for Music into the changes in the live music industry since 1988, “to ensure that PRS for Music is operating a tariff that is fit for the purpose of licensing live popular music events going forward.” The Consultation Paper is somewhat critical of the 1988 Performing Right Tribunal’s decision – albeit with hindsight and…

New licensing regime for Ireland?
Licensing , Live Events / May 2015
Ireland

LICENSING Live events sector     New licensing laws could be introduced in Ireland the wake of the Garth Brooks cancellation fiasco at Dublin’s Croke Park in July, 2014. The measures follow the widely publicised collapse of Brooks’ five sell-out shows, which were cancelled just 17 days before show time after Dublin City Council (DCC) would only give permission for three nights. The Gaelic Athletic Association had previously agreed with residents that a maximum of three concerts would be held each year at the venue. Brooks himself took an ‘all or nothing’ approach – and refused to perform two shows as matinees, meaning no concerts took place. The Irish Examiner reports that the issues being considered by the review group, set up in the wake of the fiasco, include the minimum time frames before an event for the submission of a licence application and the making of a decision by a planning authority on such an application, and public consultation arrangements on licence applications. A Department of Environment spokesman told Audience Magazine “From the outset the review group has been mindful of the fact that any legislative changes need to be fair and balanced to all stakeholders including promoters, venue owners, local communities. Local…

A right to guns at Festivals? Only in the US of A
USA

LICENSING, HUMAN RIGHTS Live events sector     Most festivals do their utmost to ensure their events are peaceful, trouble free and that festival goers respect each other, and don’t bring in weapons. Not so Norman, Okla, where a pro-gun group have brought a court claim in the Cleveland County Court, challenging the Norman Music Festival’s ‘no gun’ policy A lawsuit  has been filed against the City of Norman and Norman Music Alliance, who sponsors the Norman Music Festival. The injunction hearing, which could determine whether weapons are allowed at the festival, was originally set for April 28 – AFTER the festival was scheduled to take place on April 23-25. District Judge Thad Balkman, who the case was assigned to, said the hearing will be moved and the case will be heard prior to the event’s dates. Don Spencer, vice president of Oklahoma Second Amendment Association, said not allowing weapons at the music festival is in violation of state law, as it is a public event. The gun group claims the ban violates the Oklahoma Self-Defense Act, which prohibits “subjective or arbitrary” rules beyond those specified in the Act. Spencer said “If the city of Norman decided that they didn’t want minorities to be at…

Osprey outcry put T’s Strathallan home at risk
Licensing , Live Events / May 2015
UK

LICENSING Live events sector     Campaigners opposed to T In The Park taking place at the Strathallan Estate in Perthshire, which include the Woodland Trust and the RSPB, have secured what they say is a defining victory against promoters DF and the Estate owners, Jamie and Debs Roberts. Whilst the local authority is still considering arguments on both sides over whether the 80,000 capacity festival can take place from 10-12 July, the RSPB, who had already noted that ospreys traditionally nest near the Estate, have said the protected birds have returned. Under the Wildlife And Countryside Act it is a criminal offence to disturb ospreys during the breeding season. Although the ospreys’ long-term roosting spot is not on the Strathallan Estate itself, STV reports that a 2500 foot ‘buffer zone’ would be required around the nest if T went ahead there, and that would significantly cut into the planned festival site.  DF had reportedly hired experts to try to persuade the ospreys to nest in a alternative nesting space and DF contractors had been using kites, balloons and an extended cherry-picker crane near the old nest to try to divert the birds to the new site. The RSPB has dubbed…

Glastonbury ticket scammer convicted
Criminal Law , Live Events / May 2015
UK

CRIMINAL Live events sector     Christine Babb, an East Grinstead “con woman” who sold non existent Glastonbury Festival tickets to scores of music fans may be facing prison. Babb, 34, of Farm Close East Grinstead, raked in over £23,000 by claiming to be able to sell tickets to hugely popular events like Glastonbury. Such was her notoriety that Glastonbury issued an official statement warning: “Nobody called Christine Babb is either employed by Glastonbury Festival or has any tickets to sell for the Festival. PLEASE remember that you can only buy Glastonbury tickets through official sources and that this year’s Festival is entirely Sold Out.” Hammersmith Magistrates Court heard that Babb’s campaign of fraud lasted nearly a year, between August 2013 and July 2014. She admitted 29 offences of fraud by false representation. Prosecutor Tom Gill said: “This defendant told her victims that she worked in the music industry and could get discounted tickets to various events including [the] Glastonbury Festival. “There are 29 victims of this offence who paid for their tickets that they didn’t receive.” The court heard that Babb has previous convictions for ‘very similar’ scams. For the defence, Jyothi Somavarapu explained in mitigation that her client suffered…

US Court upholds Lanham Act violation of Bob Marley’s image
Artists , Competition , Trade Mark / May 2015
USA

COMPETITION / TRADE MARK Artistes     The U.S. Court of Appeals for the Ninth Circuit has addressed the issue the use of whether the use of a deceased celebrity’s likeness or persona in connection with a product constitutes a false endorsement that is actionable under the Lanham Act, and has upheld a District Court’s finding of false endorsement and economic interference against defendants who had been selling T-shirts featuring an image of the late reggae icon, Bob Marley. Fifty-Six Hope Road Music v. A.V.E.L.A., Inc., Case Nos. 12-17502, 12-17519, 12-17595, 13-15407 and 13-15473 (9th Cir., Feb. 20, 2015) (Smith, J.) (Christen, J., concurring-in-part and dissenting-in-part). It wasn’t disputed that in 2004, A.V.E.L.A. acquired the rights to some photographs of Marley from a photographer, Roberto Rabanne.  A.V.E.L.A. then licensed the images to defendants Jem Sportswear (Jem) and Central Mills (Freeze) and Jem and Freeze used the photographs on Marley T-shirts and other merchandise, which were sold at retail outlets. In 2008, Hope Road sued A.V.E.L.A., Jem and Freeze for trademark infringement and false endorsement under the Lanham Act, for common law trademark infringement, as well as for unauthorized commercial use of right to publicity and intentional interference with prospective economic advantage under state…

Perry yet to secure Left Shark Trade Mark
Artists , Trade Mark / May 2015
USA

TRADE MARK Artistes   Do you remember ‘Left Shark’, the slightly out of time dancer who was ‘dancing’ beside Katy Perry during her Super Bowl half time show back in February. After designer Fernando Sosa made a 3D printed figurine called Left Shark available online – Perry’s team quickly began investigating how she could take ownership of intellectual property in the name, the image and the concept of Left Shark. The US Trademark Office has now had its say. Examiner.David Collier wasn’t impressed with an application to register the image of Left Shark. According to The Hollywood Reporter, Collier wrote that the design “identifies only a particular character; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services”. The Examiner also noted that there were inconsistencies between a photo of actual Left Shark and a drawing of Left Shark with the Examiner saying: “Specifically, the [photo] displays the mark as a stylised depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the…