What’s going on under the blanket?
Copyright / September 2019

COPYRIGHT The Music Modernization Act (MMA) was signed into US law on 11 October 2018, it plans to do what it says on the tin, namely the overhaul of how copyright underpins the US music industry. One particular area in need of a revamp is the law relating to mechanical tights and digital streaming. Prior to the MMA becoming law in the US, digital music providers (iTunes, Spotify and Google Play…) would file clearance notices with the relevant publisher of the music being streamed. The publishers would then receive a mechanical royalty based on a relatively complicated formula (see link below) which is set by an authorised body. Under this provision of the Copyright Act, the copyright owner is not able to refuse the grant of a mechanical license providing certain criteria is met e.g. the work has been lawfully recorded and distributed in the US and is a non-dramatic work. The Musical Works Modernization Act section of the MMA creates a new blanket license for the digital use of musical works and, amongst other things, authorises a newly formed Mechanical Licensing Collective (MLC) designated by the Copyright Office to administer mechanical licenses, this will entail the collection and distribution of royalties (much like…

Rights owners call for a halt to EU Copyright reforms – but the creative sector disagrees
Copyright / September 2019

COPYRIGHT Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  “regrettably under these circumstances we would rather have no directive at all rather than a bad directive”.  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights – they still see big benefit from the Copyright Directive. The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises – but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text…

Agreement on DSM Directive reached in trilogue
Copyright / September 2019

COPYRIGHT Over on the IPKat, Eleonora Roasti reports that at last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market an agreement has been reached between the European Parliament and Council negotiators on the content of this new piece of legislation. The text is not yet available, but according to a press release from the European Parliament: Tech giants to share revenue with artists and journalists: The deal aims at enhancing rights holders’ chances, notably musicians, performers and script authors, as well as news publishers, to negotiate better remuneration deals for the use of their works featured on internet platforms. Locking in freedom of expression: Sharing snippets of news articles will not engage the rights of the media house which produced the shared article. The deal however also contains provisions to avoid news aggregators abusing this allowance. The ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”. Uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been protected, ensuring that memes and Gifs will…

New Zealand’s High Court refuses to grant interim injunction against Viagogo.
Consumers / September 2019

CONSUMER Over the last year or so a number of regulatory authorities have gone after Viagogo, the now controversial secondary ticket resale platform based in Switzerland, over complaints from consumers. Complaints include the use of misleading statements referring to the availability of tickets and the failure to identify seat numbers and seller identities, and notably, the UK Competition and Markets Authority and the Australian Competition & Consumer Commission have filed legal complaints against the Swiss company. In August, last year, it was the turn of New Zealand’s Commerce Commission (Commission), at the time Complete Music Update reported that the Commission was seeking “declarations that Viagogo has breached the [Fair Trading Act], an injunction restraining it from further breaches and corrective advertising orders”. Reference was made to the use of words such as ‘official’, ‘guarantee’ and ‘limited’ when Viagogo was not ‘official’, refunds were not ‘guaranteed’ and tickets were not ‘limited’. Not stopping there, the Commission also referred to an unfair contract term in that any consumer disputes against Viagogo must be heard under Swiss law in Swiss Courts, whereas on the other hand, Viagogo is free to take action against consumers in a jurisdiction of its choosing. Whilst these substantive arguments are…

Live Nation executives cleared of secondary ticketing charges
Competition , Criminal Law / September 2019

CRIMINAL / COMPETITION A Milan court has acquitted two senior Live Nation Italy executives and three executives from the live sector of any wrongdoing in a secondary ticketing case, which alleged the companies profited from illegally inflating ticket prices. Live Nation Italy’s  president Roberto De Luca and general director Antonella Lodi had been charged, along with Mimmo D’Alessandro, chief executive of Tuscan promoter D’Alessandro e Galli (Di & Gi), Corrado Rizzotto, formerly chief executive of Milan promoter Vivo Concerti  and now head of Indipendente Concerti, and Charles Roest of Viagogo The charges were based on an alleged conspiracy with secondary ticketing platform, Viagogo, to remove tickets from the market and resell them at inflated prices and spreading “false information to cause an alteration of the market.” Prosecutor Adriano Scudieri led the two-year investigation into the inflation of ticket sales for events including Bruce Springsteen and Coldplay shows. The five defendants were also accused of “fraud against the state” for failing to pay taxes and performance royalties in full. The suspected inflation would have resulted in revenues from 2011 to 2016 of more than US$1.13 million. Scudieri called for custodial sentences of up to 16 months. “Two very difficult years have now come to an end, but…

Marley family triumph in coffee case
Contract , Trade Mark / September 2019

CONTRACT / TRADE MARK A US appellate s court has upheld an earlier ruling in a trademark dispute between the Bob Marley estate and a coffee company that previously had the rights to sell coffe beverages using the legendary reggae musician’s name. Jammin Java Corp will now have to pay the Marley family estate $2.4 million in damages. Jammin Jave originally had a licence to use the Marley name, agreed with Fifty-Six Hope Road Music (56 HR) and Hope Road Merchandising – who were authorised by the Marley family to grant the right to the coffee company to make and sell a coffee product that utilised the late musician’s name and trademark, with Marley’s son Rhohan involved . However, the two sides in the venture fell out, initially over unpaid royalties and allegations that the coffee firm was unlawfully sub-licensing the Marley brand to third parties. Jammin Java continued to sell its Marley coffee product  once its licences had expired. The Marley companies brought a legal action in 2016, and were granted a summary judgement and were subsequently being awarded $2.4 million in damages. Jammin Java then appealed that ruling,  arguing that the court of first instance had not properly considered…

Is Kanye West going to send EMI south?
Contract / September 2019

CONTRACT A famous artist is suing a music publisher, again…..not quite. Kanye West v. EMI has all the hall marks of a juicy and exciting case. On one hand we have employment/ contract issues, on the other we have copyright and some very valuable rights at stake and on the other hand (if there is a third hand!) we have a multimillion dollar artist that wants to retire – but EMI are not having it. In January, Pitchfork reported that West filed two suits: one against Roc-A-Fella Records, Def Jam Recordings, UMG Recordings, and Bravado International Group and the other taking aim at EMI. At the time there was not much to report as both complaints had been heavily redacted. On Friday in Please Gimme My Publishing, et al v. EMI April Music, Inc., et al West’s complaint in Kanye West v. EMI was filed as an exhibit in discovery. You can read the document via the link below, but for now here are some comments: Like most good disputes, there is a contract. In 2003 West signed with EMI and granted it the the publishing rights to his songs. The 2003 contract was for a term of three years with an additional optional year. Between…

Songwriters and music publishers furious with Spotify over US rate appeal
Copyright / September 2019

COPYRIGHT US publishers and songwriters have hit out at an appeal made by the US streaming services, including Amazon and Spotify, who have  now formally objected to the new mechanical royalty rate set by the recent Copyright Royalty Board (CRB) ruling, with royalty rates for streaming and other mechanical uses set to rise 44% for the compulsory licences over the next five years. That decision was ratified last month (February 5th), when the CRB published the final rates and terms for songwriters. The top line revenue share figure to be paid by streaming services will rise, over a number of years, from 10.5% to 15.1%.  The streaming companies were given 30 days to lodge official opposition to the ruling if they wished: Apple Music declined, but Spotify and Amazon, have now both filed a notice of appeal. Pandora and Google have also asked the CRB to review its decision. In a statement yesterday the National Music Publishers Association (NMPA) said that a “huge victory for songwriters is now in jeopardy” due to the streaming services’ filings. The NMPA called the appeal a “shameful” move which equates to “suing songwriters”. Amazon, Spotify and Pandora issued a joint statement saying: “The Copyright…

Marc Jacobs looks to dismiss Nirvana case
Copyright / September 2019

COPYRIGHT In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ‘ Redux Grunge’ grunge-inspired collection and seemingly acknowledges the ‘inspiration’ for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis.  At the time of those reports the T-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers. Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that – while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob’s also notes that its products don’t include the text  “flower-sniffin, kitty-pettin, baby-kissin corporate rock whores” which was on the back of the band’s original shirts. And where the Nirvana…

Coachella’s “radius cause” is ruled valid
Competition / September 2019

COMPETITION A US District Judge has ruled that the Coachella festival’s controversial ‘radius clause’ that prevents other festivals booking artistes which it has secured exclusively is valid and does not fall foul of US anti-trust laws, despite the claim that the contractual restriction preventing acts on the Coachella bill from playing at any other festival in North America from 15 December to 1 May, amounts was anti-competitive behaviour on the part of organisers. The clause meant ‘Coacxhella’ acts had to avoid bookings at North American festivals and headline concerts in five states, from announcing plans to play other events until after the Coachella line-up release in January, and from publicising appearances at West Coast festivals until after Coachella closed. Oregon based Soul’d Out Promotions had tried to book Coachella performer, SZA, to their Portland festival only to be turned down, they said, because of the terms of Goldenvoice’s radius clause. The promoters also claimed the funk-soul group, Tank and the Bangas, canceled after agreeing to play their 2018 festival because of a conflict with their Coachella commitment. The Coachella legal team defended the policy, explaining in a court filing accessed by Amplify that “the entire purpose of the radius clause…

BMG v Cox principles applied in finding liability for ISP Grande
Copyright / September 2019

COPYRIGHT The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers:  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label – but many said at the time that a careful look at the judgment, which reversed the jury on a technicality, was actually a win in the battle against piracy.  The 4th Circuit took a long hard look at how and why Cox would be protected by US  “safe harbor” provisions that protect service providers from liability when users infringe copyright. – and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have “adopted and…

British Columbia Introduces Ticket Sales Act
Consumers / September 2019

CONSUMER British Columbia is the latest Canadian province to introduce a Tickets Sales Act, banning bots and enforcing transparency requirements for the secondary market, and intended to “bring more fairness and transparency” to purchasing tickets to live entertainment events. The Ticket Sales Act, introduced by Solicitor General Mike Farnworth to the Legislative Assembly after a 2018 consultation which gathered in some 6,500 responses, would outlaw the use of automated “bot” software programs in the province, as well as introduce requirements involving the disclosure of ticket prices, refund guarantees by secondary sellers, and disclosure that secondary sellers are not the original ticket provider, their name, and their contact information. Franworth said: “By establishing a regulatory framework for the sale of tickets in B.C., we would want to ensure that everyone has a fair chance of obtaining a ticket at a fair price” But the proposed legislation stops short of imposing a price cap on resale tickets. It also fails to tackle what many see are problems in the primary market include any requirement on the part of primary ticket vendors to disclose how many tickets are available to the general public. Ticketmaster and its parent Live Nation have lobbied heavily against the inclusion of…

Guns N’ Roses N’ – a trade mark dispute
Trade Mark / September 2019

TRADE MARK Guns N’ Roses (GNR) are knockin on a trade mark lawsuit against Oskar Blues, a Longmont, US, based brewery. Back in August 2018 Oskar Blues applied to register a figurative ‘Guns N’ Rose’ logo with the US Patent and Trademark Office: the trade mark application ultimately knocked on heaven’s door following objection from GNR. Despite this initial trade mark dispute, and according to the filed complaint, in 2018, Oskar Blues began to sell its ‘Guns N’ Rose’ beer in various outlets in the US. In the complaint, it is claimed that in December GNR’s manager spoke to Oskar Blues’ manager and requested the ‘Guns N’ Rose’ beer be discontinued. When this informal effort failed, various legal letters were exchanged in GNR’s hopes of the putting the matter to bed and avoiding a hangover. Digital Music News, reports that Axl Rose even asked Oskar Blues to stop selling the beer. Essentially, all of GNR’s efforts to have the ‘Guns N’ Rose’ beer discontinued failed. Oskar Blues even went so far as explaining that it was happy to abandon its trade mark application and halt sales of the ‘Guns N’ Rose’ beer….in March 2020! Of course, the next step for…

Woodstock 50 cleared for the summer – but who will foot the bill?
Contract / September 2019

CONTRACT A Court in New York has ruled that the Woodstock Festival’s financial backers had no right to cancel the event without the agreement of the organisers of the Woodstock 50, although the court declined to force Dentsu to return $18 million to the Event’s bank account. The 50th anniversary celebration of the original Woodstock which is planned August, was thrown into doubt last month when Amplifi Live, a division of the Dentsu Aegis Network – announced that the event had been cancelled. The Woodstock company rebutted this saying at the time Amplifi had no right to make such a decision and took the matter to th courts for resolution. In what seems to be an analysis of the contract between the two former partners, and in particular what that contract said about cancelling the event and the management of the bank account that had been set up to pay festival costs. CMU Daily reports that  “The agreement did set out quite clearly what Dentsu could do if it thought the Woodstock company was ever in breach of its contract. Basically, the marketing firm could either cancel the deal and walk away from the project, or take control of the festival…

Spotify beware – Indian broadcasting licensing scheme may not cover streaming
Copyright / September 2019

COPYRIGHT A recent ruling against and Indian streaming service could have important implications for Spotify in its battle with Warners in the country and it’s plans to launch in the Indian market. The Bombay High Court (Justice S.J. Kathawalla) has now made its decision Tips Industries Limited vs Wynk Music Ltd with (judgement dated April 23, 2019) and and has found for Indian record label Tips against a local streaming service based, Wynk. The dispute began in 2017 when Tips and Wynk failed to agree new licensing terms. Tips then told Wynk to remove its catalogue from the service, but Wynk responded by saying it didn’t have to because it was covered by a compulsory licence under Indian law that was traditionally intended for broadcasters. Tips then brought a legal action for copyright infringement.  Justice SJ Kathawalla has now ruled in favour of the label, saying that Wynk was “knowingly infringing upon the plaintiff’s copyrights”. He also dismissed claims by Wynk that the label was simply trying to force its hand in licensing negotiations. The judge noted the increase in digital music companies claiming protection under Section 31-D of India’s Copyright Act but ruled that  this “amounts to usurpation of the exclusive rights of the owners to commercially rent,…

A ‘sample’ of the music industry’s issues ?
Copyright / September 2019

COPYRIGHT This week it has been reported that Ernie Hines, the American soul musician, has filed a lawsuit against Sony Music and Roc-A-Fella Records, whom published Jay-Z and Timberland 1998 track ‘Paper Chase’ and Timbaland’s 1999 track ‘Toe 2 Toe’. Uproxx reports that the claimed value of the suit is $2 million. The allegations stem from Hines’ 1970 track ‘Help Me Put Out The Flame (In My Heart)’, a sample of which has allegedly been used in ‘Paper Chase’ and ‘Toe 2 Toe’. Hines claims that, whilst the tracks were released nearly two decades ago, he has only just heard them, the Blast reports that the complaint explains that “[Hines is a] senior citizen, does not listen to rap music and was unaware [that the songs contained his music and composition.” It is claimed that in both matters the sample was used without consent of Hines, and in the case of Jay-Z it is claimed the infringement was wilful due to the fact that the TIDAL music streaming service lists the sample. But this is only one sample of an issue in the music industry, for example in 1999 Produce Records sued BMG Entertainment over a 7.5 second sample, this…