Russian collection society fraud deepens
Criminal Law / March 2017
Russia

CRIMINAL Collection societies   Russian collecting society RAO has begun to uncover the extent of the frauds it has suffered following various accusations of embezzlement, one of which resulted in former General Director Sergei Fedotov being placed in custody. He is accused of funnelling over 500 million rubles (£6.9 million) out of the organisation during his time in charge. Authors’ rights collecting society RAO initially defended Fedotov, but new General Director Maksim Dmitriev said that an audit of the years 2014 to 2016 had uncovered 228 million rubles (£3.1 million) of suspicious activity in the last year alone, including the “transfer of funds on spurious grounds and overstating expenses”. It should be noted that the largest of these payments was taken out in the second half of last year, after Fedotov’s arrest. The fraud(s) have contributed to growing losses at the collecting society – an average of 200 million rubles (£2.75 million) have seeemingly been removed annually by the end of 2015, which in turn meant that RAO has not been able to pay songwriters and publishers the royalties they are due.  Dmirriev said “By the end of 2015 RAO had an impossible obligation to songwriters to the total amount of 2.8 billion…

Russia proposes a ‘super’ EEU collection society
Copyright / March 2017
Russia

COPYRIGHT Collection societies   Billboard reports that the Russian government has proposed that there should be one collective licensing body across the Eurasian Economic Union. Russia’s government is still deciding whether or not the government should take over collective licensing in the country after a number of scandals, setting up a new agency that would combine RAO (which is the collection society for authors’ rights), VOIS, which deals with neighbouring rights, and RSP, which collects a one-percent tax on imports of electronic devices that can be used for copying content. Russia’s culture ministry has now reportedly suggested a multi-territory licensing body could be set up as part of the Eurasian Economic Union. According to Billboard, the Russian culture ministry has proposed that that new government-led rights body could also handle collective licensing in other countries that are part of the Eurasian Economic Union, which are the former Soviet states Armenia, Belarus, Kazakhstan and Kyrgyzstan, as well as Russia The culture ministry has suggested that the multi-territory rights body could “combine national collecting societies and develop uniform standards for their operation, management and control over their observance”. The latter proposal – ie an EEU body regulating collective licensing – would have some parallels with the regulation…

Swedish appellate court allows web blocking
Copyright , Internet / March 2017
EU
Netherlands
Sweden

COPYRIGHT Internet   The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy – a move opposed Swedish ISP Bredbandsbolaget   The Patent And Market Court Of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union. Torrentfreak reports that judge Christine Lager said in a statement: “In today’s judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is…

Sirius XM wins again against the Turtles
Copyright / March 2017
USA

COPYRIGHT Recorded music, broadcasting   Sirius XM Holdings Inc has won the dismissal of a New York copyright lawsuit over the satellite radio company’s use of pre-1972 sound recordings brought by Flo & Eddie, Inc, who own the 60s pop band the Turtles’ catalogue, reducing the size of a related settlement between both sides in November.  The 2nd U.S. Circuit Court of Appeals has now accepted the December 20th ruling by the New York state’s Court of Appeals that New York common law does not protect the public performance of songs made before 1972. The 2nd Circuit rejected an argument by Flo & Eddie Inc that the state court ruling did not resolve Sirius’ liability for unauthorised copying and unfair competition, saying the ruling covered both issues. This decision overturns U.S. District Judge Colleen McMahon 2014 decision. Where this leaves the settlements between the plaintiffs (and others) is now open to question: U.S. District Judge Philip Gutierrez in Los Angeles, California, granted preliminary approval of the settlement on January 27th. A hearing on final approval is scheduled for May 8. Five major record companies settled their own lawsuit against Sirius the use of older recordings for $210 million in June 2015.  In…

Florida appellate court to hear Turtles’ appeal
Copyright , Music Publishing / March 2017
USA

COPYRIGHT Recorded music, broadcasting   The Florida Supreme Court will hear arguments beginning on April 6th in the copyright-infringement lawsuit filed by founding members of the 1960s rock group the Turtles against SiriusXM satellite radio. Flo & Eddie Inc., the California-based company whose principals are Turtles vocalists Mark Volman and Howard Kaylan, filed the lawsuit in 2013 alleging copyright infringement involving music made prior to 1972. Flo & Eddie have won suits against SiriusXM in California and New York (the later subsequently over turned) but a federal district court judge in Florida sided in 2015 with the satellite broadcaster, finding nothing in Florida statutes or common law dealt with copyrights of recordings made before 1972 (and the federal Copyright Act). Judge Darrin Gayle said that “Florida is different”  (from New York and California) saying “There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts.” Declining to fill the void in the state’s legislation the Judge said “If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law”  adding that it’s…

Can ReDigi re-sell its self to the Court of Appeal?
USA

COPYRIGHT Recorded music, internet It appears that ReDigi is making a comeback with some high-profile support. Back in 2013 we were listening to the case of Capitol Records, LLC v ReDigi Inc. The case asked if the digital music purchases were capable and eligible for resale under the first sale doctrine.  The doctrine of first sale is (of course!) the legal concept that has been enshrined into US and other copyright laws. It provides that purchasers of copyrighted material are afforded the right to re- sell the material. In the UK we like to explain it to be that once the copyrighted or trade marked product is sold, the proprietor of the copyright or trade mark has exhausted his/ or her rights and cannot use the rights to stop the product being re-sold.  In ReDigi the issue was that of the purchasers of digital music being afforded the right to re-sell the music.  Capitol Records were not fans of this, they said that it was a infringement of copyright. They argued that the infringement came about when  copies of the music files were made during the transmission from users of ReDigi to the ReDigi servers and then again in transactions between users. …

ITV loses Copyright Tribunal appeal
Copyright , Music Publishing / March 2017
UK

COPYRIGHT Broadcasting, music publishing     UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  “had not made an error of law in reaching its decision”. Commenting on the decision, PRS Commercial Director Paul Clements said: “In June 2016, the copyright tribunal decided a dispute over the terms of ITV’s broadcast licence in PRS For Music’s favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members’ music”. “While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld…

T Bone Burnett takes aim at DCMA safe harbours
Copyright , Internet / March 2017
USA

COPYRIGHT Internet   Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of their customers, giving the technology companies the benefit of ‘safe harbour’ protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.” But is that balance right?    Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office’s review of Digital Millennium Act ‘safe harbour’ provisions in the USA, saying in a video that whilst the law that was supposed to “balance the internet’s openness with creators’ ability to earn a living wage from their work  ….. [T]hose safe harbours have failed”. “The problems are familiar”, he adds. “[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of ‘notice and takedown’ to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles…

New Spanish decision might offer support for direct licensing
Spain

COPYRIGHT Music publishing, live events sector     A Spanish court has ruled against collection society SGAE in favour of a venue which had negotiated to pay performance royalties directly to artists. The ruling, by Judge Pedro Macías in the commercial court of Badajoz in Extremadura, centres on two shows by veteran Spanish rock group Asfalto and comedian Pablo Carbonell at Badajoz’s 325 capacity Sala Mercantil in 2010. When SGAE (Sociedad General de Autores y Editores) noted that the usual fees for the concerts had not been paid, it announced its intention to collect, only to be told that  “the artists had reached a private agreement between them” and the Mercantil, according the venues legal team, OpenLaw. Judge Macías’s affirmed the composers “exclusive rights to the exploitation of the work, without any limitations other than those established by law”    “The owners of these rights are the authors, so they are the ones who should be able decide what to do with them,” comments OpenLaw’s Andrés Marín. “If a composer and performer negotiate directly with a third party and agree to give away or even collect their copyrights directly, the SGAE has no right to try to collect, or recover, the rights the…

When will I see my royalties again?
Artists , Contract , Music Publishing / March 2017
USA

CONTRACT Recorded music, artistes   Three members of The Three Degrees, the female vocal group who had hits with  “When Will I See You Again”, “The Runner”, “Woman In Love” and “My Simple Heart”, are suing Sony Music Entertainment, seeking to recoup decades of royalties they say were withheld by a former manager and his widow. The Three Degrees were formed in 1963 in Philadelphia. The group’s membership has changed over the years, but for purposes of the lawsuit it is current members Valerie Holiday (a member from 1967 to present) and Helen Scott (1963-1966, and 1976 to present) and the estate of Fayette Pinkney (a founder member, and with the group until 1976). Pinkney died in June 2009. They were discovered by producer and songwriter Richard Barrett, who produced the original line-up on their first song, “Gee Baby (I’m Sorry)”, for Swan Records, in 1965. Barrett also signed Shiela Ferguson, who went to to become a member. According to the complaint, the group has “never received one penny” of royalties under an oral agreement struck in the mid- to late-1970s with former manager Barrett, for a 75% share of revenues. The plaintiffs say Barrett’s widow, Julie, and her company, Three Degrees Enterprises, have instead kept…

Agent of change comes closer still
Live Events / March 2017
UK

PLANNING Live events sector   As part of a wider review of UK housing, the Government has proposed new measures to boost the ‘agent of change’ protections to safeguard music venues from new property developments, which have been welcomed by UK Music, the Music Venue Trust and the Musicians’ Union. The ‘agent of change’ principal puts the responsibility for matters such as soundproofing new homes with the developer when they choose to develop or re-develop residential accommodation near to a venue, rather than on the venue itself. In proposals announced yesterday, the government said that it would amend the National Planning Policy Framework to emphasise the consideration of existing venues in planning policies and decisions, in an attempt to avoid future noise complaints. The problem was highlighted in the case between between the Ministry Of Sound nigh club in London’s Elephant & Castle and property company Oakmayne, which wanted to build a new block of flats opposite the club – and the Club was concerned that that complaints from new residents could impact on the venue’s licence and future ability to trade. Following a lengthy legal battle, the club and property firm reached a settlement brokered by then London Mayor Boris…

Kylie (M) stops Kylie (J) taking the name
Artists , Trade Mark / March 2017
USA

TRADE MARK Artistes   Kylie Minogue has reportedly won – or at least settled – an important legal battle with Kylie Jenner over the latter’s application to trade mark their shared first name. The reality TV star filed paperwork at the U.S. Patent and Trademark Office in 2015, aiming to register ‘Kylie’ as a trademark for “advertising services” and “endorsement services”. Minogue objected in February 2016, stating in her opposition that Jenner’s trademark application would “bring on confusion for both the celebrities and their brands.” In her opposition, Minogue representatives KBD stated that she was an “internationally renowned performing artist, humanitarian and breast cancer activist” who already owns Kylie related trademarks in the US in, as well as the website www.kylie.com (since 1996), and referred to Jenner as a “secondary reality television personality” and also raised concerns about Jenner’s social media activity stating “Ms. Jenner is active on social media where her photographic exhibitionism and controversial posts have drawn criticism from Disability Rights and African-American communities.”  It now appears the matter has been settled. Minogue owns trademark registrations for “Kylie Minogue Darling,” “Lucky – the Kylie Minogue musical,” and her full name, “Kylie Minogue”. Her registered protection extends to perfumes and toiletries, music and sound recordings, live entertainment,…

Battle for SOS 4.8 set to run
Contract , Live Events , Trade Mark / March 2017
Spain

TRADE MARK / CONTRACT Live events sector     Legal Music, the promoter of the successful Spanish festival SOS 4.8, has accused the Murcian government of illegally laying claim to the name of the event, and indeed the event itself, which it is says it is “sole and rightful owner” which has featured a host if international artistes over the last nine years including Pulp, Morrissey, The National, PJ Harvey, Franz Ferdinand, The Flaming Lips, Mogwai, The XX, Bloc Party, M83, Pet Shop Boys, Damon Albarn and Phoenix. In December 2016, Legal Music announced the April 2017 edition of SOS 4.8 would not go ahead following the withdrawal of funding from the Autonomous Community of Murcia (Comunidad Autónoma de la Región de Murcia, Carm), and the promoter accused the authority of violating its sponsorship agreement with the festival. It then emerged that Carm had trademarked the SOS 4.8 name in 2008, apparently without informing Legal Music, and Carm then said the festival would go ahead with or without Legal Music’s participation, and that Murcia would “not yield to any kind of threats” from Legal Music”  adding that Carm was “the sponsor of SOS 4.8 and the owner of the brand”. In turn…

Major labels take aim at mixtape app
USA

COPYRIGHT Recorded music, internet   The digital platform that specialising in the distribution of unofficial hip hop mixtapes is in the sights of the US major labels, with the Recording Industry Association Of America accusing Spinrilla and its founder Jeffery Dylan Copeland of rampant copyright infringement. The record labels have, until now, seemingly turned a blind eye to smaller underground labels who release unlicensed mixtapes, which often include multiple unauthorised samples from their catalogues, but Spinrilla has attracted their attention and the Recording Industry Association of America’s complaint reads: “Through the Spinrilla website and apps, users with an artist account can upload content that any other user can then download or stream on demand for free, an unlimited number of times – although the site does have DCMA takedown protocols.  A substantial amount of content uploaded to the Spinrilla website and apps consists of popular sound recordings whose copyrights are owned by plaintiffs”.   Spinrilla is indeed a business – and has a nominally priced premium version available, and the Spinrilla app has appeared in a number of recommended music service lists recently alongside licensed platforms like Spotify, and licensed sites such as MixCloud and SoundCloud.  In a statement, the…

Duran Duran granted leave to appeal against Sony/ATV
UK

CONTRACT / COPYRIGHT Music publishing   Duran Duran have been granted leave by the High Court in London to appeal against the decision of Mr Justice Arnold in December 2015 when he ruled against the pop band in their dispute against Gloucester Place Music, which is owned by US company Sony/ATV. Arnold J found that the band would be liable for violating its contract with Sony/ATV by trying to avail itself of provisions in U.S. copyright law allowing Duran Duran to terminate license agreements after 35 years. Mr Justice Arnold ruled “not without hesitation” that the contractual interpretation suggested by Gloucester Place was the correct one.   On Friday, February 3rd, Duran Duran issued a press release outlining the details of the appeal. In a statement, Duran Duran founding member and keyboardist Nick Rhodes said: “It was enormously disappointing that Sony/ATV decided to mount this aggressive and unexpected action against us to try to prevent the simple principles and rights afforded to all artists in America regarding their copyrights after 35 years. We are relieved and grateful that we have been given the opportunity to appeal this case because the consequences are wide reaching and profound for us and all other artists. In his…

Will Prince’s musical catalogue return to Tidal?
USA

COPYRIGHT / CONTRACT Recorded music, streaming     There is speculation that Prince’s catalogue will come flooding back to Tidal, as details of the dispute between Prince’s estate and Tidal, the music streaming service owned by the rapper Jay Z and a number if other artistes including , Beyoncé, Rihanna, Kanye West, Nicki Minaj, Daft Punk, Jack White and Madonna have surfaced.    In November, reports say that the Bremer Trust, the interim administrator of Prince’s estate, sued Tidal via Prince’s NGP record label and publishing business. The lawsuit claimed that Tidal’s deal with Prince, which was made prior to the superstars’ unfortunate death, gave Tidal the rights to exclusively stream his penultimate album and not his whole catalogue. Tidal and Rock Nation, also owned by Jay Z, claimed that oral and written agreements had been made between Prince and themselves for use of the catalogue.  In January, Tidal and Roc Nation filed a claim against Prince’s NGP and Bremer Trust. In this claim they alleged that it was agreed that Prince would deliver four albums, for which an advance was paid. ‘Hit and Run: Phase 1’ and ‘Hit and Run: Phase 2’, the superstars final two albums, were expected…

Thirteen face charges over Manilla festival deaths
Health & Safety , Live Events / March 2017

HEALTH & SAFETY Live events sector   Thirteen people are facing criminal charges over the deaths of five people at last May’s Closeup Forever Summer festival in Manilla in the Philippines. During the event was ongoing, five people were found unconscious in separate locations on the concert grounds on the 22nd May 2016. They were Ariel Leal (22), Lance Garcia (36), Ken Migawa (18), Bianca Fontejon (18) and Eric Anthony Miller (33 and an American citizen). The victims had all collapsed at the festival and died later in hospital, and local reports said that they had ingested a cocktail of alcohol and drugs – erports said the five had taken ‘green amore’, a potentially lethal mix of MDMA and shabu, or methamphetamine. Following an eight-month investigation, the Philippines’ National Bureau of Investigation (NIB) has asked for negligent homicide charges to be brought against 13 executives of promoter Closeup, its parent company, Unilever Philippines, and several security companies. The charges will alleges the defendants “had the ability to prevent the unwanted incidents but failed to do so”. The NBI complaint, filed with the Department of Justice, says the companies – Unilever, Closeup, Activations Advertising, Hypehouse Production Corp. and Delirium Manpower Services – should have put in…

Viagogo faces fresh legal actions for ticket re-sales
Consumers , Contract , Live Events / March 2017
Italy
Switzerland
UK

CONSUMER / CONTRACT Live events sector   Hot on the heels of news that Viagogo were selling tickets for Ed Sheerhan’s Teenage Cancer Trust charity concert at the the Royal Albert Hall at vastly inflated prices, the now Geneva based secondary ticketing platform is facing fresh legal action from a coalition of Spanish promoters, “adding to its ever-growing collection of lawsuits”. The second lawsuit of 2017 follows the outcry over the speculative selling of tickets for a postponed show by Joaquín Sabina in A Coruña (Corunna), Spain, next July, and in a joint statement, the promoters of Sabina’s Lo niego todo (I deny everything) tour, TheProject, Get In and Riff Producciones, and his management company, Berry Producciones, say they are “outraged” and intend to bring legal action action against Viagogo for the fraudulent listing of “tickets that do not exist”.   A spokesperson told IQ magazine that the parties’ lawyers are currently in the process of filing the action and that the lawsuit mirrors one filed by SIAE in late January, in Italy in which the Italian collection society alleged Viagogo listed tickets for a Vasco Rossi show in Modena before they went on sale on the primary market in a move that dragged Live…