Australian law makers look to ban bots, whilst in the UK, Viagogo are a no show
Consumers , Live Events / April 2017
Australia

CONSUMER Live events sector     Lawmakers in Australia are also considering a nationwide ban on the software used by ticket touts to buy up large quantities of tickets for in-demand events from primary ticketing sites, using so called ‘bots’. In 2016 President Obama signed banning the use of ticket tout bots, while the UK government has now said it supports inserting a similar specific bots ban into Digital Economy Bill. In Australia, where touting (scalping) has traditionally been legislated for on a state by state basis, the Federal Senate has approved a motion introduced by independent senator Nick Xenophon calling on the country’s government to also ban bots. He is quoted by MusicFeeds as saying: “Genuine Australian fans are being unfairly deprived of tickets because ticket scalpers are using automated systems to buy a bulk of tickets when they are released. They’re then on-selling them for massive amounts to those that missed out. It’s a clear cornering of a market that hurts consumers”. In early March, Australian consumer watch organisation Choice revealed ticket sellers were inflating prices by up to 500 percent. It also dismissed current consumer laws as inconsistent and ineffective. Xenophon’s motion was not backed by the Australian government,…

Ontario opens public consultation on ticket touting bots, but Virginia wants a free market
Consumers , Live Events / April 2017
Canada
USA

CONSUMER Live events sector   Ontario has launched a public consultation on plans to introduce new laws banning the use of ticket tout bots. The Canadian province’s Attorney General Yasir Naqvi had announced the intention to introduce new legislation last October and moves to outlaw the use of such software were reinforced after tickets for Canadian rock band The Tragically Hip’s farewell tour quickly found their way to secondary sites at massive mark-ups, on the news that frontman Gord Downie had been diagnosed with terminal brain cancer. Ontarians with a view on secondary ticketing matters can fill out the consultation survey. And in advance of the UK’s move to regulate secondary ticketing and ban the use of bots to harvest tickets, the FanFair Alliance welcomed Prime Minister Theresa May’s “heartening” intervention on the secondary ticketing market. May was responding to Conservative MP Nigel Adams, who is leading the bid to make illegal the misuse of bot technology by ticket touts. “Does the Prime Minister agree that, when tickets to a teenage cancer charity gig by Ed Sheeran are being resold on the Viagogo ticket website for more than £1,000, with none of that money going to the charity… it is unfair…

UK government to act on touting
Consumers , Live Events / April 2017
UK

CONSUMER Live events sector   In the wake of an outcry over touts re-selling tickets for Ed Sheerhan’s Teenage Cancer Trust charity show at the Royal Albert Hall and Adele’s O2 concerts, UK ticket touts who use computer ‘bots’ to mine for concert tickets before selling them for massive profits, and blocking fans from seeing their favourite artists except at huge mark ups, will face unlimited fines. National Trading Standards will also be handed a ringfenced pot of money to fund efforts to stop fans being ripped off or shut out of the most in-demand events. As well as criminalising bots, United Kingdom ministers at the DCMS will accept in full the recommendations of a review by Professor Michael Waterson, who published proposals to tackle rogue ticket traders last year. These include demanding that ticket firms to step up their own efforts to prevent the use of bots and to report any attacks on their systems by touts trying to harvest tickets. Culture minister Matt Hancock said: “This profiteering is simply not fair, so we are acting to put fans first and improve the chances of seeing our favourite musicians and sports stars at a reasonable price” adding “Ticket sellers…

Alabama joins Virginia on the trail of the free market ticket
Consumers , Live Events / April 2017
USA

CONSUMER Live events sector   Lawmakers in Alabama are moving towards passing a new rule that would give consumers a statutory right to resell any tickets they have bought, which in turn would limit the tactics artists and promoters can employ to try to fight back against scalping (ticket touting). There are parallels between the proposals made by Alabama representative Paul Lee and the previously reported measures put forward in Virginia by delegate Dave Albo:  Virginia’s House Of Delegates has now passed the Ticket Resale Rights Act, which prohibits concert promoters from denying someone admission to an event because they have bought their ticket from a tout (scalper). The new legislation also seeks to stop the use of ticket controls designed to limit touting, such as locking a ticket to the credit card used to buy it. Under the Ticket Resale Rights Act, concert promoters  in Virginia wouldn’t be allowed to cancel a touted ticket in that way, whatever the terms and conditions of the ticket may say. Doing so could result in a fine of up to US $5,000.   The Alabama state-level laws would stop event organisers from cancelling tickets that have been resold, or forcing customers to resell their…

Live Nation fined for unfair AC/DC refund procedures
Consumers , Live Events / April 2017
Spain

CONSUMER Live events sector   The Spanish city of Seville has fined Live Nation 15,000 euros over the way it handled refunds in relation to an AC/DC concert in May 2016. Readers will remember the ‘Rock or Bust’ tour was interrupted and then substantially re-arranged when vocalist Brian Johnson was forced to pull out of live shows after being warned that he risked “total hearing loss” – and he was replaced by Guns ‘n’ Roses frontman Axl Rose. Those who had brought tickets for the show were offered  the option of a refund if they didn’t want to attend the rearranged date with Rose. However, according to Spanish consumer rights group Facua, Live Nation then set a deadline on refund applications within a three day window, so many consumers wishing to cancel their tickets could not do so. At the time many fans were appalled at Rose being even suggested as a replacement, although Rose went on to get good reviews for his performances from fans and critics alike, and he turned up on time for shows. In its formal complaint to Seville’s Economy And Commerce Department, Facua said that whilst Live Nation didn’t initially set a deadline for refund applications, it…

ARTICLE LINK  – Trade Marks and Google Adwords
Trade Mark / April 2017
EU
UK
USA

TRADE MARK All areas     This week LA Weekly broke the news that Coachella’s  parent company, Goldenvoice,  is suing Urban Outfitters for trademark infringement, alleging the unauthorised use of the word “Coachella”. The lawsuit relates to Urban Outfitters subsidiary Free People, who have allegedly been selling various items that use the Coachella name: “Coachella Valley Tunic” and  “Bella Coachella” accessories being two examples. According to the LA Weekly report, Goldenvoice had sent a cease-and-desist letter along with several other demands that Urban Outfitters stop using the “Coachella” name, to no avail. Now Laura Harper, a partner at Shoosmiths LLP, has written a very good article on this in the context of UK and European law, with a particular nod towards the onlIne sphere, Google and ‘adwords’.  https://www.iq-mag.net/2017/03/trademarks-fair-game-use-google-adwords-laura-harper-shoosmiths/#.WNPgdTuLSM9

Hendrix siblings back in court
Trade Mark / April 2017
USA

TRADE MARK Merchandise   Experience Hendrix LLC, the company run by the late guitarist’s adopted sister Janie, and which is the entity that that manages the estate and legacy of Jimi Hendrix, is in another dispute with Jimi Hendrix’s brother Leon, who is accused of involvement in a business venture that seeks exploit Jimi Hendrix trademarks without Experience Hendrix’s permission. The new lawsuit, filed in U.S. District Court for the Southern District of New York, is against Leon Hendrix and associate Andrew Pitsicalis. A a press release from Expedience Hendrix begins by noting the past disputes over unofficial Hendrix-branded products that he has been involved in and  states: “Over the past ten years, defendants Andrew Pitsicalis and Leon Hendrix, and a variety of individuals and entities with which they have been associated, have attempted to hijack plaintiffs’ trademarks and copyrights for their own personal gain. Federal courts have repeatedly prohibited those unlawful activities” and goes on: “Ignoring those prohibitions, defendants recently have renewed and expanded their infringements of plaintiffs’ trademarks and copyrights through the creation, development, licensing, manufacturing, promotion, advertising and sale of cannabis, edibles, food, wine, alcohol, ‘medicines’, electronic products, and other goods”. The law suit continues: “Undaunted by their previously…

Appeal filed in ‘Stairway to Heaven’ plagiarism claim
Copyright , Music Publishing / April 2017
USA

COPYRIGHT Music publishing     The case which claims that iconic rock band Led Zeppelin’s “Stairway to Heaven” rips off the Spirit song “Taurus” is back in court.  A unanimous jury verdict in U.S. District Court in Los Angeles decided last June that the two songs were not sufficiently similar to constitute copyright infringement. Lawyers for the estate of the late Randy Wolfe (Randy California), author of “Taurus”, have now filed a 90 page brief. Wolfe’s legal team, led by attorney Francis Malofiy, has now filed a lengthy submission with the Ninth Circuit appeals court, arguing that a series of “erroneous” jury instructions resulted in Led Zeppelin winning the case. Other complaints from the trial include “Limiting plaintiff’s trial time to 10 hours violated due process and was not even close to an adequate amount of time to try this case” as well as “The Court seriously erred when defining originality.”   According to The Hollywood Reporter, Malofiy wrote in his submission: “The most important of these errors was that the trial court refused to let the jury hear the full and complete composition of ‘Taurus’ embodied in the sound recordings that Jimmy Page possessed, instead limiting the comparison to an outline…

iHeart radio: Another pre-1972 sound recording case – with a twist
Copyright , Music Publishing / April 2017
USA

BROADCASTING / COPYRIGHT  Broadcasting, recorded music   The Georgia Supreme Court has ruled in favour of iHeart in another lawsuit concerning pr-192 sound recordings, whoch are protected by state laws rather than by federal copyright law.  Here, iHeart have defeated a copyright claim made by Arthur and Barbara Sheridan over iHeart streaming pre-1972 recordings they control – without licence.   As readers will remember the USA is a bit of a mess when it comes to who pays what for the use of recorded music. Federal law means that AM/FM stations have never paid royalties when playing post 1972 sound recordings. Digital online and satellite broadcasters are treated differently and do have to pay to use post 1972 copyrights (and there is a collection society, SoundExchange, set up to manage the collections).  But these broadcasters decided they could use pre-192 sound recordings without a licence. The Turtle’s Flo & Eddie have led the challenge against the likes of Sirius XM, arguing in California, New York and Florida arguing that state law there actually provides a general performing right for sound. They won at first instance in California, won at first instance in New York but lost on appeal, and lost in…

Spinrilla files defence against record labels’ claims
General / April 2017
USA

COPYRIGHT Recorded music   Spinrilla, the popular hip hop mixtape sharing app that was recently sued by the Recording Industry Association Of America RIAA)  has filed its response, calling for the case to be dismissed partly on safe harbour grounds, and on the basis that Spinrilla had been working with the very labels now suing to promote their artistes.  The RIAA claimed: 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”. The legal response, published in full by Torrentfreak, sees Spinrilla argue that it has in the past had a good working relationship with the recorded music industry and states: “Plaintiffs and defendants have been co-operating for years in a variety of ways to successfully prevent and remove unauthorised music from Spinrilla.com. Plaintiffs and defendants have also co-operated when plaintiffs have requested that its music be promoted and distributed by Spinrilla. This co-operation can and should…

Are Sir Paul McCartney’s copyright reversion up in the air pending the possible Duran Duran appeal?
General / April 2017
UK
USA

COPYRIGHT/CONTRACT Music Publishing   We have previously reported that Sir Paul McCartney had filed a lawsuit against Sony/ ATV. In this lawsuit McCartney is attempting to reclaim the rights to the 267 songs he co-wrote with John Lennon throughout the 1960s when they were members of the Beatles. Sony/ ATV had previously labelled the lawsuit “unnecessary and premature” in a statement, now it appears they have furthered this by explaining that it is not a matter for the court. In a letter to the court they have stated that “As an initial matter, Sony/ ATV has made no statement challenging the validity of plaintiff’s termination notices”. Does this mean that it is disputed that there is even a dispute?  Sony/ ATV have been put on notice that McCartney will be attempting to reclaim the copyright, and as of yet they have not said they will attempt to block the reversion of the copyright. However, it looks as if Sony/ ATV are looking to the outcome of the Duran Duran case that is going through the appeal procedure in the UK before they make a move. At first instance in the Duran Duran case, Arnold J found that on the application of English law,…

This is Spinal Tap and this is their lawsuit
Copyright / April 2017
France

COPYRIGHT Film, broadcasting, recorded music     The French media giant Vivendi SA has turned it up to eleven and called the $400 million Spinal Tap lawsuit “absurd”.  Vivendi, owner of Universal Music, is in the middle of a dispute with the members of Spinal Tap – yes the band that starred in the cult film ‘This is Spinal Tap’.  The dispute arose when Harry Shearer alleged that StudioCanal, the media giant’s movie business, “wilfully manipulated certain accounting data, while ignoring contractually-obliged accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”. Since then, Shearer has been joined by Christopher Guest, Rob Reiner and Michael McKean and all are now named claimants. The lawsuit claims $400 million in damages to account for the alleged profits that has not been paid.  Not only does Universal, through its subsidiaries, own the rights to the film it also owns the rights to the soundtrack. The lawsuit alleges further that this use of subsidiaries is anti-competitive, and has resulted in the creators of the cult film being deprived of a fair reward for their services.   It is reported that Vivendi’s defence states that “Plaintiffs may not like the…

GWVR – the German Collection Society for promoters – publishes its first tariffs
Copyright , Live Events / April 2017
Germany

COPYRIGHT Live events sector     Some years ago, the German Association of Concert Promoters (BDV) applied to the German Patent & Trade Mark Office to set up a new collection society to collect revenues it has succsssfully argued are due to its members and due as compensation for the ‘neighbouring right’ under Section 81 of the German Copyright Act and arising from recordings made at live events. In 2014, the new royalty collecting society for promoters was approved by the German Patent and Trade Mark Office (DPMA) in Hamburg, after 10 years of lobbying by BDV.  At the time BDV President, lawyer Jens Michow, said that the new Society, Verwertungsgsgesellschaft fur Wahrnehmung von Veranstalterrecheten (GWVR) had plans to negotiate with broadcasters, record labels and other users of live recordings to set tariffs to compensate event promoters.  (GWVR, in English, The Collection Society for the Neighbouring Right) is a subsidiary of BDV. Michow said “after a protracted and difficult approval procedure with the GWVR, this mans that promoters are not merely dependent on the fleeting success of their concerts, but can also participate in longer-term rewards from the events they promote.” The GWVR will set tariffs, administer the rights procedures and collect…

Custodial sentence appropriate for sustained online infringement
UK

COPYRIGHT Recorded Music, Music Publishing, Internet     In an interesting decision, the Court of Appeal in London has upheld a custodial sentence imposed on Wayne Evans by HHJ Trevor Jones at the Crown Court in Liverpool for two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the Copyright Designs & Patents Act 1988 and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. Evans operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites, but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called “torrent” websites which permitted such downloading. The appellant himself had three websites which he administered. They were hosted through a proxy server, a computer system or application which facilitated access to material on the internet and which also provided a degree of anonymity to those who were supplying or accessing it and which bypassed other sites which might have been blocked by UK internet service providers. The three website…

Australia drops ‘safe harbour’ reforms
Copyright / April 2017
Australia

COPYRIGHT All areas   The Australian government has dropped plans to extend safe harbour protection from the revision of the country’s copyright laws. The Australian recorded music industry was among those who criticised plans to extend the country’s copyright safe harbour to be more in line with those in the US and Europe. Others in the media and entertainment industries hit out at that proposal, pointing out that the wider safe harbour provisions were becoming increasingly controversial in the US and the European Union, and that moves were afoot in the latter to put new limits on safe harbour protection, and that the proposed safe harbour reform hadn’t been subject to proper consultation, unlike the other proposals in the Copyright Amendment Bill. Dan Rosen of the Australian Recording Industry Association said on the news: “The other schedules to the bill were subject to a proper consultation and review by the department and that would be the appropriate place for an evidence-based inquiry into the commercial and market impact of any reform to safe harbour”. Communications Minister Mitch Fifield said that the safe harbour proposal had been taken out of the copyright bill in response to “feedback” from the content industries, and…

The US Supreme Court has declines Vimeo appeal
USA

COPYRIGHT Recorded music, internet     The US Supreme Court has declined to hear a final appeal in Capitol Records’ legal battle with video-sharing site Vimeo for hosting unauthorised recordings from The Beatles, Elvis Presley and other classic artists. The court  has left in place a federal appeals court ruling which said websites are protected from liability even for older music recorded before 1972 under the DCMA’s ‘safe harbor’ provisions.  Capital Records and other music companies had sued Vimeo for violating copyright laws for videos uploaded by users of the site and federal judge ruled a federal “safe harbour” law did not cover pre-1972 audio recordings. which are generally protected by state law. But a New York federal appeals court overturned that ruling, saying service providers would incur heavy costs to monitor every posting or risk “crushing liabilities” under state law. The Second Circuit Court of Appeals ruled that exempting older recordings from the safe harbor principle would “defeat the very purpose Congress sought to achieve in passing [it]”. The appellate court then refused to reconsider the case in August, resulting in the recorded music industry taking the matter to the US Supreme Court last December. The Supreme Court has now declined to hear the case, meaning…

Falls Festival crowd crush lawsuit reaches court
Health & Safety , Live Events / April 2017
Australia

HEALTH & SAFETY Live events sector   A class-action lawsuit has just been filed against the organisers of Falls Festival following the  crowd crush that took place at the Lorne edition  of the 2016/17 event in Australia, which left approximately 80 people injured – some very seriously. The Industry Observer reports that the incident occurred as festival-goers were leaving a set by local trio DMA’S to catch international act London Grammar, with the crowd’ surge towards the seemingly inadequate exits caused audience members to be crushed against the barriers or beneath the resulting stampede. Pres reports in December 2016 said “Festival-goers were crushed, left gasping for air and unconscious during a chaotic crowd stampede at the Falls Festival in Lorne on Victoria’s south-west coast” A representative for the lawyers acting for the claimants stated “The allegation is that if proper care and attention had been taken to configuring the area where the acts were taking place, and the scheduling of the successive acts this stampede would not have occurred, that this was entirely avoidable” adding “That’s the basis of this action – predominantly in negligence of the organisers. 65 participants are seeking damages in the case. Falls co-producer Jessica Ducrou responded with a…

Italian band Soviet Soviet deported from US en route to SXSW
Immigration , Live Events / April 2017
Italy
USA

IMMIGRATION Live events sector      Tighter visa restrictions on performers for South by Southwest showcase performances entering the USA first surfaced when Italian band Soviet Soviet posted a lengthy statement on Facebook on Friday after being refused entry en route to their (unpaid) show. The band say that they were handcuffed and detained overnight after being deemed illegal immigrants because border officials said they had incorrect travel documentation. The band had been travelling on the visa waiver programme ESTA, which allows citizens of nearly 40 countries to travel to the US for 90 days on business or leisure without requiring a visa. However, travellers must not earn money in the US during their stay.  Apart from SXSW, the band had a number of other promotional performances scheduled, including a showcase at Seattle radio station KEXP – but not for payment, and the band said “We knew that if we were to receive any compensation we would have had to apply for work visas. This was not the case and the people we spoke to for information told us we would be fine. The point is that the control agents – who did a quick check on the concerts we informed them of –…

Spain cuts rate of VAT on cultural events
Live Events , Taxation / April 2017
Spain

TAXATION Live events sector   Spain’s minister for education, culture and sport, Íñigo Méndez de Vigo, has announced a cut in the rate of cultural value-added tax (VAT) to 10%. The reduction confirms a manifesto promise by Prime Minister Mariano Rajoy’s People’s Party, which last September pledged to reduce VAT for live entertainment, or “cultural shows” (espectáculos culturales) which has stood at a record 21% since September 2012, when Rajoy increased the tax, which previously stood at 8%. The tax hike has been catastrophic for the Spanish live industry where revenues from ticket sales fell 27.51% between 1 September 2012 and summer 2013, and the country’s live music industry has only just recently recovered to its pre-2011 levels. https://www.iq-mag.net/2017/03/cultural-vat-cut-10-percent-spain/#.WNt1xzvyuM9

China’s Music licensing revenues increase – but still low by international standards
Copyright , Music Publishing / April 2017
China

COPYRIGHT Music publishing   According to the statistics released by the Music Copyright Society of China (MCSC), music industry licensing revenue amounted to RMB184 million (approx. £21 million) in 2016, an increase of 8.2% from last year. Digital licensing accounted for most of the growth and now represents 37% of the total. Revenues from broadcasting and public performances dipped. Music licensing revenues in China remain low by global standards. Draft amendments to the Chinese Copyright Law may help, with proposals for new statutory rights for sound recordings. In November 2016 the UK-China Economic and Financial Dialogue (EFD) including a commitment that “China will urge copyright owners and broadcasters to timely perform their respective obligations in accordance with the Interim Measures for Payment of Remuneration by Radio and Television Stations for Broadcasting Sound Recordings”.    And in Kenya, The Music Copyright Society of Kenya has lost the licence to collect music royalties. The moved followed the decision by the board of directors of Kenya Copyright Board to approve the licensing of a new body, Music Publishers Association of Kenya Limited, to collect royalties on behalf of authors, composers and publishers from March 2017 to February 2018, effective immediately. The decision was made after the new…

DCMS Minister highlights potential s696 abuses to the London Mayor
Licensing , Live Events / April 2017
UK

LICENSING Live events sector   In a slightly unusual move, Conservative DCMS minister Matt Hancock has written to London’s Labour Mayor Sadiq Khan raising his concerns over the Metropolitan Police’s somewhat controversial ‘risk assessment’ form 696, claiming it can be used to “single out” certain music genres. The form, which is only used in London, requests that names, stage names, private addresses, and phone numbers of all promoters, DJs and artists be listed for an event that “predominantly features DJs or MCs performing to a recorded backing track” – so hiphop, rap and grime then! In June 2009 the Parliamentary Culture, Media and Sport Committee said that the Promotion and Event Assessment Form (form 696) went “beyond the Act and its guidance to impose unreasonable conditions on events and recommends that it should be scrapped.” At the time Feargal Sharkey, then head of UK Music, was a vocal critic. The original form asked for details of ethnic groups likely to attend the performance, but that section was removed in 2008. Now Hancock has now said: “It is clear that the way in which the form is being used can single out certain genres of music and may be deterring the staging of…