Owners of “Happy Together” lose Florida copyright case
Copyright , Music Publishing / November 2017

COPYRIGHT Sound recordings, broadcasting   Another court in another state has ruled that pre-1972 copyrights are NOT protected by state copyright law – and they never have been. The Florida Supreme Court, following in the footsteps of New York State’s appellate court, has ruled that its state law, which governs sound recordings made before 1972, doesn’t include a right to control public performances in sound recordings, including radio plays. Commentators said that both this decision and the reasoning behind it are good news for digital broadcasters and possibly their radio listeners,  but less so for the owners of copyrights. As readers will be aware, there is an unusual position in the USA when it comes to paying for the use of sound recordings on the radio – there is no such payment due from ‘traditional’ radio stations, and AM/FM radio has never paid royalties for using sound recordings, whether on current hits or  ‘golden oldies’ either. This changed in 1972 with new satellite and digital broadcasters liable to pay – but a number of copyright owners and in particular Flo & Eddie, former members of 1960s group The Turtles, argued that pre-1972 recordings would be protected by state law, so…

Goldenvoice wins another ‘Chella’ battle
Live Events , Trade Mark / November 2017

TRADE MARK Live events sector    A court in California has upheld a complaint made by Coachella organiser Goldenvoice against the organisers of the Filmchella film festival in the same state, granting a preliminary injunction against the latter holding that name is liable to cause “consumer confusion” with the well established music festival.    The complaint, filed by Coachella Music Festival LLC in the US District Court for Central California, argued that Filmchella founder Robert Trevor Simms and twenty other defendants were using the similar-sounding name to their name and trade mark for their multiday outdoor film festival. To add to this, the complaint says that both events feature numerous forms of entertainment and camping, are held in Southern California and that Simms has pitched his planned festival as “Coachella for movies”.    Coachella Music Festival LLC owns several trademarks and servicemarks associated with the festival, including the Coachella servicemark and “Chella” for use on shirts and T-shirts; However the trademark for use of “Chella” in “musical” and “cultural and arts events”, “campground facilities”, “hotel accommodation services”, drinks, transportation and other clothing has not as yet been registered.   The suit said “Trading on the goodwill of plaintiffs’ famous ‘Coachella’ festival, defendants…

Manowar and Womanowar are in a trade mark war
Artists , Trade Mark / November 2017

TRADE MARK Artistes   Manowar is a heavy metal band from New York, Womanowar are a “feminist tribute band” to…you guessed it: Manowar.  Manowar’s bassist, Joey Demaio, is the proprietor of US trade mark registration numbers: 75645524 and 85065290. The first registration is for a word device (logo) mark and the second is for a word only mark ‘Manowar’. The bassist is also the proprietor of EU registration number: 0011118041 for a word device (logo) mark. The three trade marks, amongst others, are all registered for use in class 41 entertainment services, namely, live performances rendered by a vocal and/or instrumental group.  But it appears that Manowar and not fans of their feminist tribute band ‘Womanowar’, it has been reported that Demaio’s legal representative has sent a cease and desist letter to the tribute band. The letter alleges that Womanowar’s logo is likely to “cause confusion among the consuming public”. In practice, coincidences at the beginning of marks will increase the similarity as opposed to the middle or the end.  If I were, Womanowar’s lawyer, I would certainly be arguing that the fact that one mark starts with ‘Man’ and the other ‘Woman’ means that the marks might not be…

National Party’s use of ‘sound alike’ song DID infringe on Eminen’s ‘Lose Yourself’
Copyright , Music Publishing / November 2017
New Zealand

COPYRIGHT Music Publishing   New Zealand’s High Court has ruled that the National Party had infringed the copyright in Eminem’s iconic song ‘Lose Yourself‘ in a 2014 political campaign by using a ‘sound alike’ song and has awarded the rapper and his co-writers’ publisher NZ$600,000 (AU$535,000/ £315,000) in damages.  The publisher filed proceedings against New Zealand’s then governing party in September 2014 for using a version of the chart-topping song Lose Yourself in an election campaign advertisement.   The key issue for determination by the Court was whether the “sound-alike” production track, called ‘Eminem Esque‘, was sufficiently similar to the 2002 music of ‘Lose Yourself’, so as to constitute a breach of copyright.  ‘Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002. The composition is regarded by Eight Mile Style as the most valuable work in their catalogue and had only rarely been licensed for use, and never as part of a political campaign.   The High Court ruled that Eminem Esque was “sufficiently similar” to Eminem’s original song that it infringed copyright and that ‘Lose Yourself’ was a “highly original work” and that the infringing song bore only minimal differences to the original,    The tensions between illegitimate copying versus permissive borrowing…

New copyright tariffs for Germany’s live sector
Copyright , Live Events / November 2017

COPYRIGHT Live events sector   Following lengthy negotiations which involved court action from two of Germany’s live entertainment business associations, a new concert tariff rate has been agreed between representatives of the country’s live music sector (BDV and VDKD, which represent the majority of Germany’s concert promoters) and performance royalty collection organisation GEMA. Collected on behalf of songwriters and music publishers, the rate will now be calculated on a net basis of ticket sales, instead of gross, with other services including camping fees at festivals and sponsoring income taken into account. The new rate will be 5.75% of net receipts for events under 2,000 people (it is currently 5% on gross receipts), 7.6% for 2,000–15,000-capacity shows (currently 7.2%) and 8% for events with a capacity of 15,000+ (currently 7.65%).   The German PRO collected €1.02bn in royalty payments in 2016, including €371.1m in public performance fees, in its most successful financial year to date. GEMA has faced increasing criticism in recent years, and artists and event-organisers have demanded a revision of GEMA’s regulations with respect to better transparency, adjusted payment methods and other critical points.  In the live sector, the large discounts offered to some promoters have attracted criticism some of the…

This is Spinal Tap – it’s gone past eleven
Contract / November 2017

CONTRACT Film & TV, recorded music   We previously reported about the ongoing ‘This is Spinal Tap’ litigation. In fact, I am sure that we are now running out of puns, I guess each time “it’s one louder, isn’t it?” But now the four creators, have amended their claim. The amendments have resulted in more specific claims against Vivendi and now Universal Music is also featured as a co-defendant.  The legal representatives for Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner have stated that “The amended complaint details the fraud by concealment and misrepresentation conducted by Vivendi and its agent Ron Halpern and others. The co-creators contend there was longstanding and deliberate concealment by Vivendi of material facts regarding the actual gross receipts of the film, soundtrack, music and merchandise sales, plus expenses and the profits owed to them” and “Further compounding this fraud, improper expense deductions were made in Vivendi’s accounting to the creators, allegedly representing print, advertising and publicity expenses (undocumented) totalling over $3.3 million and a further $1 million in freight and other direct costs, more than half of which extraordinarily appears to fall some 20 years after the film’s release. Vivendi has also recently charged over $460k in ‘interest’ on…

Frank Ocean defeats estranged Father’s libel lawsuit
Artists , Defamation / November 2017

DEFAMATION Artists   Frank Ocean is riding the wave of success after he was successful in defending a $14.5 million libel lawsuit that was filed against the singer/ songwriter by his estranged father.  The lawsuit revolved around a Tumblr post written by Frank Ocean in the aftermath of the attack on the Pulse nightclub in Orlando last year, the post, which is still live, read:  “I was six years old when I heard my dad call our transgender waitress a faggot as he dragged me out a neighbourhood diner saying we wouldn’t be served because she was dirty.  That was the last afternoon I saw my father and the first time I heard that word, I think, although it wouldn’t shock me if it wasn’t”. Calvin Cooksey, Frank’s father, claimed that the incident did not take place and accused his son of staging a “publicity stunt in the wake of the Orlando attack … [and] us[ing] his father as an instrument for personal connection in order to sell records”. Cooksey then went on to sue for libel.  In response, Ocean stated seventeen ‘affirmative defences’ which he claimed should exemplify why his father’s lawsuit should be rejected. Cooksey attempted to have…

Met’s Form 696 back in the spotlight after new survey results
Discrimination , Live Events / November 2017

EQUALITY Live events sector   A new survey has revealed that almost half the British general public think that the controversial risk-assessment document Form 696 is discriminatory against those forced to complete it. the results of the survey are part of Ticketmaster’s State of Play: Grime report and shows that 48% of those polled – a “nationally representative” sample of the British population – think the form is discriminatory because it only applies to certain events. Culture minister Matt Hancock and the Mayor of London, Sadiq Khan, are among those to have called for a review of form 696, which is used by London’s Metropolitan police to determine the potential level of risk involved in events where a DJ or MC is using a backing track. The study was produced by Ticketmaster’s LiveAnalytics division in partnership with Disrupt and the University of Westminster’s black music research unit. Form 696  currently asks for the names, stage names, addresses and phone numbers of all promoters and artists at events where pre-recorded backing tracks are used. An earlier version of the document also asked about the specific genre of music being performed and likely ethnic make-up of the audience. Those questions were dropped in 2009 after allegations they were racial…

Different jurisdictions take aim at the touts
Consumers , Live Events / November 2017

CONSUMER RIGHTS Live events sector   Live Nation owned Ticketmaster is taking legal action against two companies in the US, which the ticketing giant believes have used bot technology to buy up tickets for live shows. According to The Hollywood Reporter, Ticketmaster has filed the lawsuit against Prestige Entertainment, Renaissance Ventures and two individuals over the use of bots to purchase tickets from its platform. Earlier this year, Prestige and Renaissance agreed to pay the majority of a $4.2 million settlement with New York state Attorney General Eric Schneiderman and also agreed to stop using bots. Ticketmaster now says it has evidence that this agreement has been broken. “Ticketmaster has uncovered evidence that suggests Renaissance has already breached the agreement by continuing to utilise bots to purchase tickets offered by Ticketmaster”, says the lawsuit. It also says that the defendants have ignored cease and desist letters.   Anti-bot legislation is becoming more common, but New South Wales is leading the way with regulations to protect consumers and govern the re-sale of tickets with a a cap on a re-sale price not to exceed 110% of the original ticket price. The state’s Minister For Better Regulation Matt Kean had previously said  “I’m sick and tired of consumers being…