What do the European Commission’s moves on copyright really mean for the music industry?
Copyright , Internet / September 2016
EU

COPYRIGHT Online   In the context of its Digital Single Market Strategy, the EU Commission is currently engaged in a discussion of whether the liability principles and rules contained in the E-Commerce Directive should be amended – and the focus of commentators has shifted to how hosting providers have been increasingly using ‘safe harbour immunity’ in Article 14 – an alleged abuse which has led to a distortion of the online marketplace, and the resulting ‘value gap’ suggested by some right holders. A proposal has been recently advanced in France advocating the removal – at a European Union level – of the safe harbour protection for hosting providers that give access to copyright works,  to enable the effective enforcement of copyright and related rights in the digital environment, particularly on platforms that disseminate protected content. In particular, the French document considers that the Court of Justice of the European Union (CJEU) has erred in its interpretation and application of relevant principles of online intermediary liability.   Statewatch has now leaked a draft version of the Commission Staff Working Document – Impact Assessment on the modernisation of EU copyright rules and this appears to suggest some of the areas where changes might made: In relation…

Judgment against Cox opens up ISP liability in the USA
Copyright , Internet , Music Publishing / September 2016
USA

COPYRIGHT Recorded music, internet   Cox Communications has been ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company BMG by a federal judge. The ruling follows a jury decision which found Cox liable for illegal movie and music downloads by its customers.   The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement – a ruling which may have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing – which Cox then failed to act on.  In a statement, Rightscorp said: “For nearly five years, Rightscorp has warned US internet service providers (ISPs) that they risk of incurring huge liabilities if they fail to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe copyrights.” adding “Over that time, many ISPs have taken the position that it…

200+ Artists Support the “Blurred Lines” Appeal
Copyright , Music Publishing / September 2016
USA

COPYRIGHT Music publishing     Some 212 musicians have attached their names to a brief supporting Pharrell, Robin Thicke and TI’s appeal in the “Blurred Lines” copyright case, including Earth Wind & Fire, R Kelly, John Oates, Linkin Park, Fall Out Boy’s Patrick Stump, film composer Hans Zimmer, Tears for Fears’ Curt Smith, Juicy J, the Go-Go’s, Frank Ocean collaborator Malay, Jennifer Hudson, Train’s Patrick Monahan, the production duo Stargate, Aloe Blacc, Jean Baptiste and Kiesza. The amicus brief echoes the concerns many artists and commentators have voiced since a Los Angeles jury determined that “Blurred Lines” plagiarised Marvin Gaye’s 1977 hit “Got to Give It Up” – that the songs were not actually similar (even if the sound recording ‘vibe’ was and “Blurred Lines” and “Got to Give It Up” have completely different melodies and song structures, and do not share any lyrics or “a sequence of even two chords played in the same order and for the same duration.” The brief reads: “The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works ” and “All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating…

Appeal filed in ‘Blurred Lines’ case
Copyright , Music Publishing / September 2016
USA

COPYRIGHT Music publishing   It comes as no surprise that Pharrell Williams, Robin Thicke and TI have filed their appeal against the verdict in the ‘Blurred Lines’ case that saw them ordered to pay $5.3m (reduced from the orginal $7.3 million) and pay over 50% of songwriting and publishing revenues to the family of Marvin Gaye, after a jury ruled last year that their song copied Gaye’s 1977 hit ‘Got to Give It Up’. Lawyers for the trio filed their opening brief with the Ninth Circuit Court of Appeals on 24th August, arguing that “if left to stand, the Blurred Lines verdict would chill musical creativity and inhibit the process by which later artists draw inspiration from earlier artists to create new popular music” and at the heart of their appeal is the argument that the Judge and indeed the jury should have simply considered the sheet music – the “deposit copy” filed with the US copyright office – and not been influenced by the actual recordings of either song. The “Blurred Lines” writers assert that when the court examined the two songs before the trial,  Judge John A. Kronstadt should have ruled that the case was not worthy of trial….

Belgian promoters react with fury to planned tariff rise
Copyright , Live Events / September 2016
Belgium

COPYRIGHT Live events sector   Belgian promoters have reacted with fury to an increase in festival tariffs announced by local performance rights organisation (PRO) Sabam (Société d’Auteurs Belge/Belgische Auteurs Maatschappij) which is planned for 1 January 2017. The rates shake-up will primarily affect larger festivals, which currently benefit from a discount in Sabam’s standard tariff of 6% on box-office receipts. The lowest rate is currently 2.5%, for festivals with box office that exceeds €3.2 million. Flemish-language paper De Morgen says this will rise to around 3.5%   Live Nation Belgium’s Herman Schueremans, promoter of Rock Werchter and TW Classic, calls Sabam “unreasonable” and says the Sabam wants to “kill the goose that lays the golden egg” with the end of the current licence discount. Schueremans pointed to the UK’s tariff of 3% of gross box-office receipts.  In turn, the UK the Association of Independent Festivals has recently suggested a reduction in the UK Tariff LP for live events (which is also under review by PRS for Music) to reflect the unique position of multi stage and multi artist outdoor events and that that PRS for Music do not taking in consideration that many festivals are actually multi-arts events or that not…

Solfest survives police licence challenge
Licensing , Live Events / September 2016
UK

LICENSING Live events sector     Solfest which takes place near Silloth in Cumbria (August 26-28) will go ahead despite a request from the Police to revoke the event’s licence, saying organisers had failed to provide a detailed event management plan in enough time. In a report to Allerdale Council’s licensing panel members, Superintendent Gary Slater said “It is the submission of Cumbria Constabulary that the event organisers are unable to satisfy the event safety group or the constabulary that they have the plans, capacity and capability to maintain public safety, protect children from harm, prevent crime and disorder and prevent public nuisance.” The Panel has the power to revoke the festival’s licence and stop it going ahead. It can also modify the licence’s conditions, remove the premises’ supervisor, suspend the licence for three months or exclude a licensable activity from the licence. Allerdale Council have allowed the event to continue but have sent the Festival’s organising committee a written warning.   However, one of London’s biggest nightclubs has closed its doors for the foreseeable future. It comes after two teenagers died of suspected drug overdoses in the last nine weeks. Fabric in Farringdon initially announced it was closing for the weekend…

Sydney’s ‘lock out’ laws take a knock
Licensing , Live Events / September 2016
Australia

LICENSING Live events sector     The Supreme Court of New South Wales has ruled that Sydney venues are exempt from New South Wales’s controversial ‘lock-out laws’ which were introduced by the New South Wales (NSW) government in 2014 and require that music venues, nightclubs, bars and hotels lock their doors at 1.30am and not serve drinks past 3.00 in a bid to curb alcohol-related violence. The legislation has been attacked by a number of prominent Australians as illogical and damaging to the music industry. This case was brought by the owners of the Smoking Panda bar who persuaded the Court that  the New South Wales Justice Department lacked the authority to subject to the city to the 1.30 curfew. The bar now joins tourist areas and hotels which are already exempt from the lock-outs, The Smoking Panda’s exemption was cancelled after an investigation found some bar patrons were not hotel guests.   In addition to live music venues, Supreme Court judge Natalie Adams also ruled strip clubs should be exempt, stating the laws are “not a proper exercise of the regulation-making power conferred upon the governor [of New South Wales]”. Lock-out laws continue to apply to other establishments. The…

Is Hackney using underhand methods to close down the night-time industries?
Licensing , Live Events / September 2016
UK

LICENSING / PRIVACY Live events sector     Thousands of clubbers have had their names shared secretly with the Metropolitan Police. The 200-capacity Studio Spaces was granted an alcohol licence by Hackney Council in January 2014, on the condition that director Yuval Hen supply the Metropolitan police and the council with a list of everyone attending events of 40 people or more 48 hours in advance. The Hackney Gazette reports that Hen initially complied, but later became aware that he was the only licensee in the area having to hand over names. He has since relaunched the venue as a ‘co-working space’. Hen told IQ magazine “The conditions killed us. We got lots of cancellations from people saying, ‘We don’t want to give you the guest list.’ It’s a nightmare – we can’t run a business like that with only 40 people allowed inside.” Hackney Council tells the Islington Gazette that the ruling was made to ensure the venue didn’t exceed its 24 permitted events of over 40 people. Nappter Tandy, who runs promoter Turf Series, has put on shows at Studio Spaces and says he was unaware guestlists were being sent to police saying “It’s extremely disappointing councils like Hackney…

Live Nation faces claims from injured fans
Health & Safety , Live Events / September 2016
USA

HEALTH & SAFETY Live events sector     Fourteen fans and three workers are suing promoter Live Nation and performers Snoop Dogg and Wiz Khalifa over injuries sustained after a fence collapsed at a concert. A total of 42 people were injured in the incident at the BB&T Pavilion amphitheatre in New Jersey on August 5. The lawsuit provides a list of injuries which included six concussions, one fractured vertebrae, a fractured collarbone, two head wounds closed with staples, broken bones in the wrist and foot, and numerous lacerations, contusions and recurring head and neck pain. Attorney Robert J. Mongeluzzi said on behalf of the victims he represents: “Our clients, and many others who attended the concert, were seriously injured because of the negligent conduct of the defendants who failed miserably in their duty to protect the audience and workers from harm”. Another attorney acting for victims, Steven G. Wigrizer, said: “Every plaintiff has asked us to do all we can to help prevent a re-occurrence through the litigation. Pure luck – not thoughtful planning by Live Nation or anyone else – is the only reason nobody died in that terrifying incident.”. The claimants allege that there was “a clearly hazardous stage configuration…

Hard Rock cleared in Akoi incident
Health & Safety , Live Events / September 2016
USA

HEALTH & SAFETY Live events sector   A jury has rejected a concert-goer’s claim for $10.7 million in damages against Hard Rock Hotel after she was injured at a Steve Aoki show when the DJ leapt into an inflatable raft in the crowd. Brittany Hickman, then in her mid twenties, allegedly suffered a concussion and a broken neck when she became trapped under the inflatable raft during a performance at Hard Rock in San Diego in 2012. According to Courtroom View Network, Hickman’s attorneys said Hard Rock should have known Aoki would leap into the crowd and should have taken steps to protect the audience. Hard Rock argued it was given no warning Aoki would perform the stunt, and claimed Hickman’s injuries weren’t as severe as she alleged. Her attorneys presented multiple expert witnesses who testified that the impact left her with a traumatic brain injury requiring a lifetime of costly medical care, but during his closing argument on behalf of the hotel Ernest Weiss of Klinedinst PC dismissed those experts as hired guns brought in to secure a large verdict. Hickman’s attorney John Gomez told the jury that her concussion left her with an impaired memory, slowed mental processing, migraines and vertigo….

Hard Music California leaves three dead in 2016
Health & Safety , Live Events / September 2016
USA

HEALTH & SAFETY / LIABILITY Live events sector   The Hard Music Summer Festival in California has left three people dead. The festival, in its ninth year, takes place at the Auto Club Speedway in San Bernardino County, about 50 miles east of Los Angeles. The music festival experienced two tragic deaths last year in 2015  Some 325 arrests were made at this year’s festival and Sheriff’s officials told KTLA that drugs including marijuana and methamphetamine were confiscated by the police. Reports say that the festival organisers have made attempts to create a safer environment for concert-goers, This year attendees were able to seek medical attention while at the festival if they had taken drugs without legal consequences. Water was readily available and shade was provided if people needed a break from the hot California sun. Temperatures reached the high ninties reports say. Organisers issued a statement saying ““We were deeply saddened to learn about the deaths of three people who attended the festival this weekend. While the causes of the deaths have not yet been determined, we ask everyone to keep them in their prayers. Our sincerest thoughts and condolences are with their family and friends.”   The three…

FTC takes a look at hidden endorsements
Artists , Competition / September 2016
USA

COMPETITION Artistes   The US Federal Trade Commission (FTC) is planning to regulate ‘hidden’ endorsements by celebrities who promote brands and products through selfies, blogs, Facebook and Instagram postings, and other social media platforms  – without ever revealing they are being paid. The Federal Trade Commission has also said that hashtags like #ad, #sp, #sponsored – common forms of disclosure – are not always enough. The FTC will be putting the onus on the advertisers to make sure they comply. Michael Ostheimer, a deputy in the FTC’s Ad Practices Division said: “We’ve been interested in deceptive endorsements for decades and this is a new way in which they are appearing,” adding “We believe consumers put stock in endorsements and we want to make sure they are not being deceived.” The FTC had instigated a case against Warner Bros. Home Entertainment Inc., which was settled, over charges that it deceived customers by paying internet influencers such as PewDiePie (who has about 50 million followers on YouTube) to promote the video game Middle-Earth: Shadow of Mordor with positive reviews, without disclosing that they were paid and told how to promote it. In March the FTC issued a complaint against Lord & Taylor for paying fashion influencers…

Sony buyout of Sony/ATV gets EU consent
Competition , Music Publishing / September 2016
EU

COMPETITION Music Publishing   MBW reports that Sony Corporation has been granted unconditional permission by the European Commission to complete its buyout of the Jackson Estate’s 50% stake in Sony/ATV. The deal faced opposition from quarters including Warner Music Group and indie label body IMPALA, but EU regulators have now ruled in Sony’s favour saying “The transaction will not materially increase Sony’s market power vis-a-vis digital music providers compared to the situation prior to the merger.”  Sony/ATV is the biggest publisher in the world in terms of the volume of copyrights it controls. Across both its own repertoire and its administration of the catalogue of EMI Music Publishing, Sony manages over 4.2m songs. Opponents to Sony’s acquisition of Sony/ATV argued that its subsequent ‘control share’ in europe would distort the music marketplace. Back in 2012, both Warner and IMPALA lobbied against Universal Music Group’s £1.2bn ($1.9bn) acquisition of EMI Music in the EU. Although the deal ultimately went through, UMG was forced to sell Parlophone Label Group which included the catalogues of David Bowie, Pink Floyd, Blur, Kate Bush and Coldplay –and which Warner Music Group brought for what now looks like the bargain price of £487m ($740m). And in 2012, the European Commission made Sony…