Spain’s Supreme Court sides with promoters over disproportionate 10% tariff
Competition , Live Events / June 2016
Ireland
Spain
UK
USA

COMPETITION Live events sector     The Supreme Court of Spain has ordered national music collection society the Sociedad General de Autores y Editores, or Society of Authors and Publishers (SGAE) to immediately abolish its “abusive” 10 per cent tariff on box-office receipts in favour of a “fair” levy to pay music copyright-holders. SGAE had appealed a ruling by the National Competition Commission (Comisión Nacional de los Mercados y la Competencia, CNMC) which held that Spain’s 10 per cent rate was excessive and unfair to Spanish concert promoters noting that much lower royalty fees were applied in other European countries – the rate in the UK is a 3% tariff applied by the PRS on box office (Tariff LP) – and also noted the 1% tariff the US. In 2014 the CNMC ruled that SGAE had committed an abuse of a dominant position, and infringed Spanish and European competition regulation. The CNMC fined SGAE with 3.1 million euros and urged the Spanish collecting society to modify the rate system for live music licensing within a period of 3 months. SGAE had failed to comply with the CNMC resolution much to the fury of Spanish concert promoters The Supreme Court dismissed SGAE’s appeal. The court noted…

ASCAP Announces Settlement Agreement with U.S. Department of Justice
USA

COMPETITION Music Publishing     The American Society of Composers, Authors and Publishers (ASCAP) has reached a $1.75m Settlement Agreement with the U.S. Department of Justice addressing two specific concerns raised during the Department’s ongoing review of the ASCAP Consent Decree.   The DOJ had claimed that ASCAP had violated the rules of the consent decree that governs the organisation by entering into exclusivity deals with some 150 of its members. In the US, the norm is that the organisation represents its members performing rights on a non-exclusive basis, meaning a licensee can circumvent the society and can  deal directly with a songwriter and/or publisher. In most other countries, when songwriters and publishers join a performing rights society, they give that organisation the exclusive right to represent the performing right elements of their copyrights. The DoJ said that since 2008 that ASCAP had added exclusivity terms to some of its agreements with members, and that this contravened the provisions of the consent decree The society said that it had never enforced any exclusivity provisions in its members contracts, adding that they had now been removed and would not be included in future agreement “By blocking members’ ability to license their songs themselves,…

No time for weaker antitrust enforcement
USA

COMPETITION Music Publishing   By David Balto   In the complicated world of music licensing there is a disturbing trend – even though there is clear evidence that publishers are exercising market power and consumers are paying more – many self-interested parties are currently lobbying the Department of Justice (“DOJ”) to loosen the consent decree in order to give it more options to raise licensing fees. And to show their level of regulatory gall, they are seeking to weaken the order after the DOJ just fined ASCAP (the licensing entity) $1.75 million for violating the consent order. If there is one thing the DOJ should learn from dog owners, it’s that you don’t give a wily dog a longer leash. It’s easy to forget that the way music is licensed through publishing rights organizations (“PROs”) like ASCAP is price fixing. However, the music industry stands as one of the rare exceptions to the rule that price fixing is illegal. That is because the DOJ and the Supreme Court both concluded that, due to the complicated nature of music licensing, the blanket licenses offered by licensing entities do more good than harm.   This exception from regular antitrust laws was never…

CAA moves forward with action against UTA
Competition , Live Events / June 2016
USA

COMPETITION Live events sector   The Los Angeles Superior Court has issued a number of rulings in Creative Artist Agency’s (CAA) lawsuit which accuses United Talent Agency (UTA) of poaching several agents last year. While Judge Lisa Hart Cole rejected UTA’s motion to dismiss some portions of the suit, she also dismissed CAA’s claims for attorneys fees. The Judge also struck punitive damages allegations against UTA, but allowed them to go forward against agents Gregory Cavic and Gregory McKnight – two of the agents who left CAA for UTA in April 2015. However CAA will be allowed to file an amended complaint within 20 days to support their claim that Cavic and McKnight signed potential CAA clients for UTA during last year’s Sundance Film Festival, which they attended on behalf of CAA at UTA’s behest.   UTA had objected to CAA’s  “allegations of conspiracy to ‘steal clients and employees’ from CAA, as well as ‘the clandestine manner in which they carried out their plans,’” according to Variety. Calling the allegations “inflammatory,” UTA argued they were “irrelevant, false, improper or immaterial matters, which have absolutely nothing to do with this action but are prejudicial to the defendants.” The judge disagreed and ruled that rather than…

Ticketing updates
Consumers , Criminal Law / June 2016
UK

CONSUMER / CRIMINAL Live events sector     The manager of Mumford & Sons has announced the band’s support for a petition demanding new tough penalties for ticket touting in UK ticket touts. Adam Tudhope says he hopes action on touting in Britain could set a precedent elsewhere in the world. The petition, entitled Enforce the Consumer Rights Act to protect music, arts and sport fans from touts, makes reference the statute of the same name, which requires ticket resellers to provide certain information on the seat or standing area the ticket is for, its face value and restrictions (for example, age). Tudhope’s petition has gained support from artistes including One Direction, Little Mix and Keane as well the Music Managers’ Forum (MMF) and the Association in Independent Festivals (AIF) and a number of MPs, and currently has approximately 27,000 signatures out of a target of 100,000, when it will be considered for debate in parliament. Tudhope said he supported making touting a criminal offence as it is with football tickets, or was with the London 2012 Olympics Games. However, although both Tudhope and Mumford & Sons have long been critical of the secondary ticket market in its current form, Tudhope told IQ…

UK ticket tout jailed for fraud, whist Swiss promoters seek better regulation
Switzerland
UK

CONSUMER / CRIMINAL Live events sector     A ticket tout who sold over £400,000 worth of bogus concert and sports tickets in a 13-month period between May 2009 and June 2010 has been jailed for three-and-a-half years. John Lupton (53) of Upper Norwood, appeared at Blackfriars Crown Court where he was found guilty of two counts of fraudulent trading and one count of money laundering. He has also been banned from acting as a company director until 2026. The London Evening Standard reported that defrauded customers paid £636,000 to two of Lupton’s dummy companies, Lines Direct Ltd and Williams & Hill Ltd, but at least £435,000 worth of tickets were not supplied, When buyers requested refunds, they found that the companies had been dissolved and their bank accounts cleared. Companies House also lists three other companies of which Lupton is or was a director: Festival Ticket Store Ltd, Dracrow Ltd and Commercial Logistics and Trading Ltd. It appears that whist a director of the companies,  Lupton was not the ‘brains’ behind the operation, and investigations continue. Allison Clare, prosecuting, said there is no prospect of recovering the money as Lupton was sleeping on his mother’s settee and living off…

PRS posts increased revenues for 2015 – and increased costs
Copyright , Music Publishing / June 2016
UK

COPYRIGHT Music Publishing   The Performing Right Society (PRS) has announced its 2015 financial results, revealing a record high royalty income of £537.4m. This figure represents an increase of 7% on 2014 when measured on a constant currency basis, with year on year growth across all revenue streams with an 8.4% increase in distributions, equating to an extra £35.6m compared to 2014. Key drivers of this success include continued growth in the online market, the success of PRS member’s repertoire in overseas markets and efficiency improvements associated with the processing of online royalties.   Online revenues reached £42.4m, representing an increase of 12.8% over 2014. This was driven by market growth and improved licensing International revenues totalled £195.6m, an increase of 10.4% on a constant currency basis, showing the value of investing in better tracking of the use of members’ rights overseas. Broadcast revenues were £124.2m: an increase of 4.1%, in part due to growth in advertising on commercial radio stations.  Public performance royalties grew to £175.2m, an increase of 4.1%, reflecting PRS’ strategy of communicating the value of music to businesses However the collection society’s headline costs increased by £10.2m in the year (17.7%) to £67.8m and there was…

Lambeth Council told to think again over Club 414 redevelopment
Live Events / June 2016
UK

PLANNING The live events sector     The High Court has ordered Lambeth Council to reconsider a decision to grant planning permission to redevelop Brixton’s Club 414 into shops and flats. The club began life in 985 as a reggae club, hosting many famous acts. It switched to dance music in the 90s and is now one of the few specialist house and trance clubs left in London. Despite objections, the planning permission was granted by Lambeth council planning officers, and not councillors, under delegated powers, would lead to the closure of the club together with a flat which is the home of the club’s owner, Louise Barron, who fought the move. Both the council and the developer conceded the claim. However the council would not agree to a statement of reasons that included unlawful delegation as a reason for quashing the planning permission. The council did accept that it had failed to consider the (then emerging) Lambeth Local Plan, which was adopted just one week after the grant of permission. The Plan recognises the importance of protecting the night-time economy in Brixton and supports leisure uses where they contribute to the vitality and viability of Brixton town centre. Mr Justice Gilbart accepted…

Ex Deep Purple member rocks up 20 years later to register band name as trade mark
Artists , Live Events , Trade Mark / June 2016
EU
UK

TRADE MARK Artistes, live events sector   By Emma Perot   Purple seems to be a popular colour in the world of trade marks. Recently, this Kat reported on Cadbury’s ill-fated attempt to preserve an existing colour mark. Thanks to Katfriend Plamen Ivanov, this Kat has learned of another purple trade mark dispute, this time concerning the word mark ‘Deep Purple’. Deep Purple is the name of a British rock band, formed in 1968. A former member of the band, Richard Blackmore, applied to register ‘Deep Purple’ as a word mark for certain goods and services in class 9, class 25, and class 41. As this Kat will explain, the attempt to register the mark was largely unsuccessful.   Ian Paice, one of the members of Deep Purple, opposed Blackmore’s application, based on Article 8(4) of the Community Trade Mark Regulation (now EU Trade Mark Regulation). This article provides for a relative ground of refusal for registration where an earlier proprietor of a non-registered mark has a right to prohibit use of the mark under the law of the member state. In the case of the opponent, the relevant law was the English tort of passing off.   On 17 February 2015, the Opposition Division  accepted registration…

Glastonbury fined £12,000 for sewage leak – but Festival had ‘low culpability’
UK

ENVIRONMENTAL LAW Live events sector     The Glastonbury Festival has been ordered to pay a fine of £12,000 and costs of £19,000 for the environmental incident at the 2014 Festival which saw 20,000 gallons of human waste pollute a nearby river after a steel tank used to hold sewage from the toilets sprang a leak, seeping into Whitelake river and killing 42 fish, among them 29 bullhead – a European protected species and10 protected brown trout. The BBC reported that the Judge at the trial found Festival had low culpability for incident in 2014 that led to death of 42 fish in Whitelake river and is ‘impressed’ with its response to incident. The Environment Agency claimed during a hearing that the event had grown more quickly than its ability to deal with so much waste. The Judge said the Somerset festival could have contacted the authorities more quickly following the problem in June 2014, but said it had largely dealt with it well. The court was told that Glastonbury used three very large steel tanks to store human waste from the site, which had a population of 170,000 during the 2014 event. One of the tanks sprung a leak in one…