Injunction available after claimed licence fees paid – PPL v JJPB
Copyright , Live Events / July 2017

COPYRIGHT Live events sector By Rosie Burbidge writing for the IPKat    Should an injunction be granted when the licence fees which were the reason for a claim being issued have all been paid? What about if further licence fee payments (incurred after the claim form was issued) have not been paid?   Phonographic Performance Limited (or PPL) “licenses recorded music played in public or broadcast and then distributes the licence fees to its performer and recording rightsholder members.” It is one of the most regular users of the IP Enterprise Court.   One of its recent targets, Mr Gaughan, runs a bar called the Watkins Folly.  The owner, Mr Gaughan reached a settlement with PPL shortly after service of the claim form. He paid the licence fee for past infringements but: (i) did not set up the agreed Direct Debit to cover payments over the following year and; (ii) continued  to play sound recordings to the public. After failed attempts to persuade Mr Gaughan to pay up, PPL applied to the court for judgment in default and to lift the automatic stay which applies six months after the period for filing a defence has expired.  The big question was not whether Mr Gaughan was…

Radiohead stage collapse trial to be re-set

HEALTH & SAFETY Live events sector   A new trial has been set for the defendants charged after the stage collapse at an outdoor Radiohead concert in Toronto five years ago, which killed British drum technician Scott Johnson, then aged 33.   Johnson was killed and three others were injured after scaffolding collapsed. The show was promoted by Live Nation and the live music giant was subsequently charged under Ontario’s Occupational Health And Safety Act. Optex Staging & Services Inc was also charged over four alleged breaches of health and safety laws, while an engineer working on the show, Dominic Cugliari, faced a single charge. The case had progressed progressed for some forty days,  and closing arguments were expected but a mistrial was declared after the presiding judge, Justice Shaun Nakatsuru, said that his recent appointment to the Ontario Superior Court meant he no longer had jurisdiction over the case. Nakatsuru said he came to the decision with “great regret” saying “My appointment was unexpected and without notice. I know that the defendants have waited a long time for the final resolution of this case. So has the public” and “There are many compelling reasons why it would be in the best interests of…

Two face Ghost Ship party manslaughter charges
Health & Safety / July 2017

HEALTH & SAFETY Live events sector   Two people have each been charged with 36 counts of involuntary manslaughter in connection to the fire that occurred at the Ghost Ship warehouse party in Oakland, California on the 2nd December 2016, headlined by electronic group Golden Donna. The two have been named as Derick Almena, who leased the warehouse and is decribed as the Ghost Ship founder an party ‘promoter’, and Max Harris, who had a supervisory role at the building and was titled the ‘creative director’.  A total of 36 people died in the blaze, including artists Cherushii, Joey Casio, Nackt, and Cash Askew from dream-pop band Them Are Us Too.   District Attorney of Alameda County, Nancy E O’Malley, who has brought the charges against the two men, told reporters that Almena and Harris had “knowingly created a fire trap with inadequate means of escape [and] then filled that area with human beings and are now facing the consequences of their actions” saying “The paying guests at the event were faced with a nearly impossible labyrinth of the defendants’ making. They allowed individuals to live in the warehouse and deceived the police, the fire department and the owner of the building…

Mankowitz’s famous portrait of Jimi Hendrix is original and deserves copyright protection, says Paris Court of Appeal.
Copyright / July 2017

COPYRIGHT Photography   A couple of years ago the Paris Tribunal de Grand Instance (TGI) concluded (to much criticism at the time) that the well-known portrait of Jimi Hendrix realised by Gered Mankowitz would not be eligible for copyright protection in France. University of East Anglia academic Sabine Jacques has an update to report, this being the rather different outcome of the appeal decision in this case: “After the surprising judgment of the TGI Paris, the Paris Court of Appeal reversed the first instance decision with a ruling delivered earlier this week.  In this case, an electronic cigarettes and accessories sales company had reproduced and altered the famous portrait of music legend Jimi Hendrix taken by Gered Mankowitz for commercial advertising purposes. The defendant depicted Jimi Hendrix smoking an electronic cigarette instead of a real cigarette to promote its products. Having been made aware of this unauthorised use, Gered Mankowitz and his assignees decided to sue the electronic cigarettes sales company for copyright infringement. Let’s rewind back to May 2015… The decision of the TGI created somewhat a seismic shock amongst practitioners and photographers as without expressly acknowledging it, the High Court seemed to have interpreted the originality criterion as being based upon artistic merits, thus…

Drake’s transformation prevails in plagiarism claim
Copyright , Music Publishing / July 2017

COPYRIGHT Sound recordings, music publishing   Drake, along with his record labels and music publishers, have won a difficult lawsuit that had claimed his song “Pound Cake/Paris Morton Music 2” which featured on the 2013 album “Nothing Was the Same” sampled a 1982 spoken-word recording titled the “Jimmy Smith Rap.” The use complained of is where Deake used a cut down version of lyrics spoken by jazz musician James Oscar Smith which originally read “Jazz is the only real music that’s gonna last ….. All that other bulls**t is here today and gone tomorrow. But jazz was, is and always will be.” Drake’s version is “Only real music’s gonna last …. All that other bulls**t is here today and gone tomorrow.” Drake’s record label engaged a music licensing company to obtain all necessary licenses. They obtained a license for the use of the sound recording of “Jimmy Smith Rap” but clearing the composition became problematic. The Estate maintained it would not have granted a license for the composition because JSmith “wasn’t a fan of hip hop.” District Court judge William H. Pauley III has now isssued a summary judgment for the defendants and against the Estate of James Oscar Smith, and…

State law not relevant to protect the broadcast of pre-1972 sound recordings in Illinois
Copyright , Music Publishing / July 2017

COPYRIGHT Sound recordings   A federal judge in Chicago had dismissed a class action in another US case that looked at the performance right in sound recordings made before 1972, and which are not covered by federal copyright law.   In his June 5th ruling, Judge John J. Tharp Jr. sided with defendants iHeartMedia in the action brought by Arthur and Barbara Sheridan, who own own the copyrights in a number of pre-February 15th 1972 master recordings  The Sheridans said they and other copyright holders should be entitled to royalties when iHeartMedia played their sound recordings in radio and internet broadcasts and the Sheridans claimed that the defendants had infringed their Illinois state law copyright infringement, and claimed unfair competition, conversion and unjust enrichment. Defendant iHeartMedia argued the Plaintiffs failed to state any viable claim. In the 1950s and 50s the Sheridans owned and operated “several recording companies specializing in recording and selling doo-wop, jazz, and rhythm and blues music” including artists like the Flamingos, J.B. Lenoir and the Moonglows. In addition to owning audio masters, they also assert ownership of “intellectual property and contract rights associated with the recordings” which they continue to market to receive “revenue from licenses granted to…

Gene in the horns of a dilemma
Artists , Trade Mark / July 2017

TRADE MARK Artistes   Gene Simmons (yes, he of rock band Kiss) attempts to register a trade mark for the widely used heavy metal ‘devil horns gesture always looked doomed to fail, and sure enough, they have.   The Hollywood Reporter reported that Simmons had applied to the U.S. Patent and Trademark Office (USPTO) for protection of the gesture in class 41. Simmons claims he first used it in commerce in 1974, although it’s fellow rocker Ronnie James Dio (Rainbow, Black Sabbath) who generally is credited with popularising the gesture, and has said he learned it from his Italian grandmother as a way to ward off the evil eye. In the application, the sign is described as “a hand gesture with the index and small fingers extended upwards and the thumb extended perpendicular”. The registration covered “services having the basic aim of the entertainment, amusement or recreation of people” and the “presentation of works of visual art or literature to the public for cultural or educational purposes”. The application further identified the types of services for which registration was sought as “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”.    Simmons said that “the mark was…

One for the scalpers! Connecticut prohibits ticket resale restrictions
Competition , Contract , Live Events / July 2017

CONTRACT / COMPETITION Live events sector   Much to the dismay of those who are fighting back against ticket touts and scalpers, but in a move billed as “protecting consumers who purchase e-tickets”, the US state of Connecticut has passed legislation that will to prohibit terms that restrict the sale of non-transferable paperless tickets. Whilst a growing number of major artists, including, prominently, Iron Maiden, now use named electronic tickets which usually require proof of ID to enter the venue to clamp down on the rapidly escalating secondary ticketing industry (which regularly harvests large quantities of tickets before real fans can get their hands on them, forcing them to pay inflated prices to the scalpers), Connecticut House Bill 7114 (HB 7114) has been passed to block these moves and remove restrictions on the sale of entertainment event tickets on the secondary market. The Act has been signed into law by Governor Dan Malloy and outlaws the practice unless “the purchaser of such tickets is offered the option, at the time of initial sale, to purchase the same tickets in another form that is transferrable”. The new legislation also prohibits venues from denying admission “solely on the grounds that such ticket has been…

Belgian live industry go to court over the Sabam rate hike

COMPETITION  / COPYRIGHT Live events sector, collection societies   The live sector in Belgian including the Rock Werchter, Pukkelpop and Night Of The Proms, festivals and tour promoter GraciaLive are heading to court with the  country’s performing rights organisation Sabam over the new royalty rates introduced at the start of the year by the PRO. Sabam justified the recent changes to the live event tariffs to bring Belgium more in line with royalties charged elsewhere in Europe.  Jan Vereecke of Night Of The Proms promoter PSE told HLN: “Sabam has unilaterally decided to increase its tariffs by 30%. It says this is based on what is charged by societies in neighbouring countries, but the rate increase is a simple abuse of monopoly”, adding “Actually, the whole system is outdated. Sabam takes a percentage of our ticket sales. But the shows of today are different than ten years ago, as staging, large screens, fireworks and such like become more common. These production elements increase the costs of the show, and therefore the cost of the ticket, and Sabam gets to skim more off the top. That is wrong”.   And in the USA, the ongoing issues around a planned move to ‘100%…