German court gives partial victory to GEMA in case against YouTube
Copyright , Internet / May 2012

COPYRIGHT Internet In a provisional victory for content owners a court in Hamburg on Friday ordered Google to install filters on its YouTube service in Germany to detect and stop people from gaining access to material for which they do not own the rights. The case was brought by German music collection society GEMA. The judge, Heiner Steeneck, agreed in his ruling that Google was not directly responsible for the uploaded material: YouTube will only liable for copyright infringing videos uploaded by its users where the portal does not follow certain control and behavioural duties. Only after the portal owners have been alerted of the copyright infringement will the duty to block the video without delay and to commit to measures that are suitable to prevent further right infringements. There was, however, no duty for YouTube to control and check all videos that had already been uploaded to the platform. “This is a victory along the way to what will be a very important case,” Peter Hempel, a spokesman for GEMA, saying “This case, when it is eventually decided, will set a precedent for the legal responsibilities of online platform operators such as Google in Germany.” The judge rejected a request…

Honey to The Bee
Artists , Copyright , Record Labels / January 2012

COPYRIGHT Record labels, artists ARTICLE LINK: In this article on the 1709 Blog, Monika Bruss explains Elvis Presley Enterprises’ so far unsuccessful claim against Arista Records in Germany for ‘equitable remuneration’ for records sold in the country. Expect an appeal sooner rather than later!   http://www.the1709blog.blogspot.com/2011/11/honey-to-bee.html

Calculating music live tariffs – did GEMA get it right?
Copyright , Live Events / December 2011

COPYRIGHT Live events industry By Monika Bruss writing on the 1709 Blog The press office of the Bundesgerichtshof (BGH) informs us that the copyright senate of the BGH has issued a judgment on the calculation of collecting society tariffs (BGH, 27 October 2011 – I ZR 25/10). In respect of indoor events, it is the established practice of German music collecting society GEMA to calculate the royalties it collects based on the size of the room where the music is played. To GEMA at least, it seemed logical enough to apply the same to outdoor events such as street fairs and Christmas markets. Accordingly, it took the size of the entire venue as reference point, from the first to the last stall or from the first to the last wall enclosing the space where the event took place. As such things go, the organisers of a number of such outdoor events disagreed with GEMA’s calculation methods. In their view, only the space where the sound from the stage can actually be heard should be taken into account. From that space, one should deduct the areas where visitors could not go, i.e. the stalls, the areas where they could not stay for more…

German promoters look to neighbouring rights
Copyright , Live Events / December 2011

COPYRIGHT Live events industry The German Association of Concert Promoters (bdv) has said that it has applied to the German Patent & Trade Mark Office to set up a new collection society, Verwertungsgsgesellschaft fur Wahrnehmung von Veranstalterrecheten, to collect revenues it believes its members are due as a ‘neighbouring right’ under Section 81 of the German Copyright Act arising from recordings made at live events. It plans to negotiate with broadcasters, record labels and other users of live recordings to set tariffs to compensate event promoters. In January 2011 IQ magazine published an article by Dr Johannes Ulbricht, a German lawyer in Hamburg at Michow and Partner, about the German ‘neighbouring rights of the concert promoter’ – identifying these an overlooked potential revenue source from Germany where it seems possible that those who stage events which are filmed or recorded (anywhere in the World) could collect a payment if the recording of that concert is then exploited in Germany. http://issuu.com/gregiq/docs/iq_issue_33?mode=embed&layout=http%3A//skin.issuu.com/v/dark/layout.xml&showFlipBtn=true  and Audience: Issue 142  November 2011

Zappa mark dispute continues
Artists , Trade Mark / October 2011

TRADE MARK Artists The ongoing dispute between the Zappa Family Trust and fans of Frank Zappa who organize the annual Zappanale festival in Germany continues. The dispute is over the use of the iconic frontman’s name and image and the use of the word mark ZAPPA, a registered Community Trade Mark. The Trust, whilst owning tne mark, had only used the word “Zappa” as part of the “official” Zappa website URL, which was operated from the US. Reversing a decision of the Regional Court of Düsseldorf, the Higher Regional Court of Düsseldorf (20 U 48/09) held that this use did not amount to genuine use of the trade mark (Article 15(1) CTMR). The court nonetheless stressed that use of a mark in a domain name as such may be sufficient for constituting genuine use – just not in this case because the public would consider the use of the word Zappa as a general descriptive reference and would not understand it as a reference to the trade mark owner. According to the latest report in Stern, the Higher Regional Court had also held that the Zappanale music festival could still be held and that the Zappanale organizers were allowed to use…

Elvis Estate sues for unpaid royalties
Artists , Contract , Record Labels / October 2011

CONTRACT Artists, record labels Elvis Presley’s estate is suing Arista Music in Germany for $9m (£5.6m) in unpaid royalties dating back to 2002 for ringtones, downloads and apps. The lawsuit also alleges the label (then RCA) exploited Presley in a $5.4m (£3.3m) 1973 “buyout” of his catalogue. It claims that, as a result of the contract, Presley went on to receive just $10 (£6) a year for worldwide rights to each of more than 1,000 recordings and the estate is seeking  a share of future revenue. It seems that under the 1973 agreement, RCA bought the rights to Presley’s back catalogue – with the $5.4m fee split evenly between the singer and his manager, Colonel Tom Parker – parker famously took a 50% management commission. The Presley estate says the singer’s annual payment for each song of about $10 is “conspicuously disproportionate” to the revenue RCA made from master recordings. As well as seeking $9m (£5.6m) in unpaid royalties, the estate wants a share of future revenue until 2023 – 50 years after the deal was struck and the year when Arista’s copyright expires under German law. The estate says it wants “equitable remuneration” asking the court to redress the deal…

EMI loses German ISP blocking case
Copyright , Internet , Record Labels / October 2011

COPYRIGHT Record labels, internet Following on from a fairly unsuccessful attempt to block digital cloud locker service MP3Tunes in the USA, EMI has now failed to force a German ISP to block access to file-sharing service eDonkey. The court in Cologne ruled that the net firm HanseNet was not liable for the actions of its customers in accessing Russian illegal file swapping services. In the UK in 2011 the Motion Picture Association was more successful, with the High Court granting an injunction ordering BT to block access to Newzbin2, an online community that provides links to manifold unlicensed content, and which relocated its base to Sweden after losing an earlier infringement lawsuit.  In the L’Oreal v Ebay case (2011) the European Court of Justice, looking primarily at trade mark issues, decided that a service provider such as eBay could be liable for users infringements under national law, unless it can rely on an exemption from liability provided by Directive 2000/31 on electronic commerce. The ECJ explained that such an exemption would be subject to the following conditions being met: (i) the operator does not play an active role, i.e., it does not know or control the data provided by its customers; (ii) a diligent economic…

Danger in numbers – can mega-gigs ever truly be safe?
Health & Safety , Live Events / August 2011

HEALTH & SAFETY Live events ARTICLE LINK  Concerts keep getting bigger – and so do the risks of deadly crushes. On the anniversary of the Love Parade tragedy, experts tell Dorian Lynskey how such disasters could be avoided.  Our thanks to Owen Grainer-Jones at the International Centre for Crowd Management and Security Studies at Bucks New University for alerting us to this interesting Guardian article http://www.guardian.co.uk/music/2011/jul/20/love-parade-crowd-safety-crush  and more articles on crowd safety at the ICCMSS website here http://www.crowdsafetymanagement.co.uk/press/

German hackers get jail
Copyright , Internet / July 2011

COPYRIGHT Internet Two computer hackers who targeted pop stars and record companies in a bid to secure personal information and distribute pre-release tracks online have been handed down prison sentences by a court in Duisberg, Germany.  The two men hacked computers containing material belonging to international stars such as Lady Gaga and Dr. Dre, accessing email accounts, banking details and other private data. One of the hackers, Deniz A (known as DJ Stolen), was given a prison sentence of 18 months. The other, Christian M (known as CEE), received a suspended 18-month sentence. Both were found guilty of copyright theft and computer intrusion. Deniz A was also found guilty of extortion. Jeremy Banks, anti-piracy director at IFPI, which provided key assistance in the case, commented: “These are deterrent sentences for serious crimes which cause huge damage to artists and record companies. Hacking into people’s email accounts to obtain and then distribute private information or property is a very serious offence which takes considerable resources to investigate. This case shows the sheer scale and scope of measures taken to identify the offenders and bring them to justice.” The judgments, handed down in Duisberg on June 16th, are the culmination of a…

Rammstein win damages for ‘appearance’ claim
Artists , Trade Mark / February 2011

TRADE MARK Artists Rammstein have won 45,000 euros in damages from Sony Music Germany in a Berlin court over claims that the German heavy metal band appeared on 2007 album by Finnish band Apocalyptica, which was released on the now defunct Sony subsidiary Gun Records. Sony’s marketing for the album, ‘World’s Collide’, claimed that the band Rammstein appeared on the record. In reality only one member of the band, Rammstein frontman Till Lindemann, guested.  Rammstein argued that the advertising infringed their trademark in the Rammstein name, because it was used without their permission. CMU Daily 11th January 2011 www.thecmuwebsite.com  

“Neighbourhood Watch”
Copyright , Live Events / January 2011

COPYRIGHT Live Events industry ARTICLE LINK – A fascinating article by Dr Johannes Ulbricht, a German lawyer in Hamburg at Michow and Partner, about the German ‘neighbouring rights of the concert promoter’ – an overlooked potential revenue source from Germany where it seems possible that those who stage events which are filmed or recorded (anywhere in the world) could collect a payment if the recording of that concert is then exploited in Germany. A very interesting read indeed. IQ Magazine January 2011 Issue 33 page 10. A pdf should shortly be available to download from the International Live Music Conference website at www.ilmc.com

Reeperbahn Campus Conference concludes with thoughts of Love Parade
Health & Safety , Live Events / November 2010

HEALTH AND SAFETY Live events industry Perhaps unsurprisingly, it was the tragedy at the Love Parade in Duisburg that focussed minds at the Reeperbahn Campus Conference, with delegates concluding that more should be done to share crowd management knowledge and experience across Europe, both within the live entertainment sector, and also with those in local government who regulate large scale events. Jens Michow, boss of trade body BDV said “With a tragedy this size, of course there will be a reaction, with people and government calling for new rules or regulations” but added “but in reality German law is already quite extensive in this area, and a lot of the new regulations being informally called for post-Duisburg are already there in the law … that’s not to say there isn’t room for improvement”, he conceded. “Especially regarding the way venues and promoters agree security arrangements; but it’s important people don’t get hysterical here and overlook the protection that already exists in Germany”. But it was the lack of information, in particular with Local Authorities, that was talked about. Delegates pointed out that there was a lot of “great knowledge out there across Europe about how best to manage large events” but…

GEMA fail to get injunctive relief against YouTube
Copyright , Internet , Music Publishing / October 2010

COPYRIGHT Music publishing, internet German collecting society GEMA have failed to get an injunction to force YouTube to take down videos containing one of 75 songs – the German songwriters and publishers collection society has been in dispute with YouTube over royalty rates for over a year now. After ongoing licensing talks between the collecting society and video site broke down in May, GEMA asked the German courts to issue an injunction to force the Google-owned site to remove any videos containing one of 75 songs owned by publishers represented by the collecting society. The society argued an injunction was needed now, pending other legal action, on urgency grounds because, given there is currently no licensing agreement between YouTube and GEMA, the writers of the 75 songs in question are losing money every time one of their videos is played. But, according to Billboard, the Regional Court of Hamburg, whilzt not passing judgment on GEMA’s wider copyright claim, said it was not convinced by the urgency argument so would not issue any interim injunctions. GEMA can, of course, proceed with other legal action against YouTube, but the 75 songs may continue to be accessed via the video site at present….

Zappanale win on appeal, Ozzy settles with Tony
Artists , Live Events , Trade Mark / August 2010

TRADE MARK Artists, live events industry Frank Zappa’s family have lost a trade mark case on appeal in Germany where the Oberlandesgericht Düsseldorf has ruled against the Zappa Family Trust (20 U 48/09) in a trade mark infringement action against a group of Zappa fans. The Trust, which owned the ZAPPA Community trade mark, objected to the annual “Zappanale“, a meeting of Zappa fans which involved many uses of the Zappa name and image. However it appears that the Trust had used the word “Zappa” only as part of the “official” Zappa website www.zappa.com, which operated from the US. According to the court, reversing the decision of the Landgericht, this was not genuine use of the trade mark in the EU under Article 15(1) of the Community Trade Mark Regulation. The court added that the use of a mark in a domain name may be sufficient to constitute genuine use in principle, but that here the public would consider the use of the word Zappa as a general descriptive reference, not as a reference to the trade mark owner In other trade mark news, Ozzy Osbourne has reportedly reached a settlement with Tony Iommi over who owns the name Black Sabbath. Iommi, Black…

German Court clears Rammstein cover artwork and lyrics
Artists , Censorship / July 2010

CENSORSHIP Artists The original version of Rammstein album ‘Love Is For All’, or ‘Liebe Ist Für Alle Da’ can now be legally put on sale in Germany after a court disagreed with the Federal Office For The Examination Of Media Harmful To Young People which had prevented the album from being put on public display in German record shops last year, mainly because of the long player’s depictions of sado-masochism. Concern was also expressed regarding the explicit nature of some of the artwork and over the song ‘I Want To Hurt You’, which, as well as its S&M overtones, was deemed to promote unprotected sex. The ban also stopped label Universal advertising the record in Germany and record shops from selling it to anyone under eighteen. The major label responded by releasing an alternative version of the long player with the offending content cut.  Universal also contested the ban in court and now the administrative court in Cologne has overturned it, meaning the original uncut version of the album can now be put back on display in record shops, be sold to minors, and be advertised by the label. According to Billboard, the court ruled that the song ‘I Want To Hurt You’ does not contain…

German and US actions take the shine off Google

COPYRIGHT Internet, music publishing Rights holders in Germany and the USA are stepping up the pressure on Google’s YouTube as rights holders seek to monetise the use of their copyrights. In Germany licensing talks between YouTube and GEMA have broken down, leading the German music rights holder group to demand that 600 videos be removed from the German version of the site. After a year of negotiations, GEMA said in a statement it was unable to reach a deal with YouTube, which had similar issues with UK collection society PRS for Music although the PRS and YouTube eventually reached new licensing terms. Billboard reports that GEMA “wanted assurances that a new deal would include a share of advertising revenue and take account of YouTube’s revenue growth” with GEMA saying in a statement: “Operators of online platforms which generate [revenue through] the use of copyrighted works – such as, in YouTube’s case, millions in advertising revenue – must ensure that those who create these works, providing the so-called ‘content’, are properly remunerated”. In the USA performing rights organisations ASCAP, BMI and SESAC have signed on to an amicus brief in support of Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube. The…

Pirate Bay judges cleared of bias, website forced offline in Germany
Copyright , Internet / June 2010

COPYRIGHT Internet A number of Swedish judges who were members of copyright interest groups have been cleared of bias charges and approved to preside over the appeal of convictions for operators of file-sharing hub The Pirate Bay. Complaints were lodged by the defendants in the criminal trials of the Pirate Bay organisers after it emerged that Judges Ulrika Ihrfelt and Kristina Boutz were members of local Swedish pro-copyright organizations, but Sweden’s Supreme Court has found no conflict of interest and cleared them to hear the trial. The operators of The Pirate Bay were found guilty of copyright infringement in April 2009, and sentenced to a year in prison and combined fines of $3.9 million. The appeal of their convictions is now expected to be heard some time in late 2010. In related news, a German court has granted a preliminary injunction against the current Germany-based Web hosts of file-sharing hub The Pirate Bay, TorrentFreak has reported.  The Motion Picture Association petitioned a court in Hamburg for an injunction against CB3ROB Ltd, operators of the CyberBunker Web hosting service. The court said that CyberBunker must specifically remove links to torrents purporting to facilitate downloads of “The Bounty Hunter,” “Alice in Wonderland,” “Our…

Rapidshare told to proactively block book uploads
Copyright , Internet / April 2010

COPYRIGHT Intenet A German court has ordered free file-hosting site RapidShare to proactively block uploads of copyrighted textbook. The service was sued in February by textbook publishers including Macmillan, Elsevier, McGraw-Hill and Pearson, and the Hamburg Court has now ruled that RapidShare must monitor uploads and ensure that 148 titles are not made available to its users. Failure to comply with the Hamburg court ruling could result in $339,000 in fines, and jail time for executives. Last year, a German court similarly ordered Rapidshare to proactively filter media whose copyrights were controlled by German rightsholder organization GEMA. http://torrentfreak.com/rapidshare-ordered-to-proactively-filter-book-titles-100224/

Rammstien album cover deemed harmful to minors
Censorship / December 2009

CENSORSHIP Recorded music The artwork for the new album from German band Rammstein has been banned from public display in their home country after a Federal media regulator ruled that depictions of sado-masochism were harmful to children and young people. The Deputy President of the Federal Office also said that one track on the album in particular, ‘Ich Tue Dir Weh’ (or ‘I Want To Hurt You’) caused concern, possibly as a result of the line “Bites, kicks, heavy blows, nails, pincers, blunt saws – tell me what you want” and the regulator was also concerned about artwork showing guitarist Richard Kruspe with a masked naked woman on his knees. Another track, single release ‘Pussy’, was also criticised for glorifying unprotected sex (and Rammstein members are seen having full on sex in the video to ‘Pussy’, although a spokesman for the rockers insists doubles were used for the explicit scenes). As a result of the ruling no shops will be able to display the album in any place where it might be seen by anyone under eighteen and German retailers were given 24 hours to comply with the notice. Universal Music Germany has announced it will release a new version of Rammstein’s new album ‘Liebe Ist…

Merkel attacks Google’s book project
Copyright , Internet / November 2009

COPYRIGHT Internet France may have reluctantly accepted Google’s plan to build a massive digital library of the world’s books but now the German Chancellor, Angela Merkel, has waded into the debate on the eve of the Frankfurt Book Fair, appealing for more international copyright protection and saying that her government opposed Google’s drive for the giant online library full of the world’s books warning of “considerable dangers” for copyright protection in the internet. Google has already scanned in 10 million books but in her weekly video podcast Merkel said “the Government has a clear position: copyrights have to be protected on the internet”. In the US a court approved settlement between publishers and authors and Google is in its final stages with a lump sum payment and ongoing royalties payable for the use of literary copyrights but German book publishers have criticised European regulators for failing to oppose the settlement. Source: The Observer  11th October 2009 p35

Depeche Mode ticket re-sales banned in Germany
Artists , Live Events / July 2009

TICKETING Live events There was finally encouraging news for promoters who have been looking for legal mechanisms to stop unauthorised secondary ticketing and touting when firstly amendements to legislation in the state of New Yorks which made ticket touting (scalping) legal lapsed and then and perhaps more importantly when a German court banned a secondary ticketing website from selling tickets for a Depeche Mode tour of the country. Frankfurt based promoter Marek Lieberberg Konzertagentur had taken ticketing portal Ventic, owned by Dutch company Smartfox Media, to court after they began reselling tickets for Depeche Mode gigs which they had bought variously from the promoter or from official ticket outlets. Lieberberg’s action came in two parts – firstly saying that the re-sale of tickets was prohibited by the terms and conditions attached to the tickets and so onward selling was in breach of those contract terms, and secondly because Ventic hid their intent to re-sell tickets when buying the tickets and so they were also guilty of “fraudulent purchase” which contravenes German competition (anti-trust) law. A Munich court backed Lieberberg’s claims and granted an injunction ordering Ventic to stop the resale of tickets to the German leg of the Depeche Mode…

German court awards a massive E24 million fine for fileshare site
Copyright , Internet / July 2009

COPYRIGHT Internet The Register reports that a German court has fined file-sharing service Rapidshare 24 million euros for copyright infringement in respect of 5,000 tracks which were shared through the site. In a case brought by GEMA, the court has held that it is the responsibility of the hosting service, and not the copyright owners, to ensure that copyright infringement was not taking place. http://www.theregister.co.uk/2009/06/24/rapidshare_gema/

Frank Zappa’s window loses Zappanale case
Live Events , Trade Mark / March 2009

TRADE MARK Live events industry The widow of Frank Zappa has failed to stop a German festival using her husband’s name and image. As previously reported, Gail Zappa and her family trust had sued the owners of a German Frank Zappa fan club over their annualZappanale Festival, demanding that they stop using the family’s name and remove a bronze sculpture of the avant-garde musician from the town where the fest takes place. They also sued for 250,000 euros in damages. The court in Dusseldorf has thrown out Zappa’s case, ruling that organisers of Zappanale can continue to use that name, plus the late musician’s image in its branding and on its merchandise holding that such use did not violate any of Gail Zappa’s rights. The widow’s case was seemingly weakened because she could not prove she used Zappa’s name and image herself in Germany, and also because she had known about the event since its launch in 1990 (three years before her husband’s death) and had only chosen to take action in 2008. Thomas Dippel, who runs the fan club who promote the festival, told reporters: “We have always been certain that we have the older rights. We have also patented (trade…

Was Vivaldi’s lost composition actually published in 1733?
Copyright , Music Publishing / March 2009

COPYRIGHT Music publishing In a case concerning a lost composition by Italian composer Antonio Vivaldi, who died in 1741, the German Federal Supreme Court (Bundesgerichtshof) has clarified the concept of ‘published’ and indeed ‘not published’ under section 71 German Copyright Act. The claimant in the proceedings was the Sing-Akademie zu Berlin, which owns an archive of handwritten manuscripts of musical compositions. In 2002, the long lost music sheets of the Vivaldi opera ‘Motezuma‘ were discovered in the Berlin archive. The question arose whether or not the work had been first published in or around 1733 (when a premiere took place). The court found that while the opera’s libretto was still available after the premiere, the music had been considered as lost. After the original handwritten composition was discovered in the Berlin archives, the claimant decided to publish and sell reprints of the original handwritten musical sheets. The claimant was of the view it had full copyright to the opera, contending that it was the first publisher of the first edition (‘editio princeps’) of this posthumous work and as such should be entitled to the exclusive exploitation rights to this ‘posthumous work’ under Article 71 which provides that “…any person who causes a work which has not previously…

“Like an animal in a zoo”: copyright dispute over Klaus Kinski quotations
Artists , Copyright / February 2009

COPYRIGHT Artists ARTICLE: By Birgit Clark writing for the IPkat Birgit reports on an interesting court case dealing with potential copyright infringement through the use of direct quotes attributed to the (in)famous late actor Klaus Kinski in a theatre play based on episodes from the actor’s life. The late German actor Kinski was well-known for his for his explosive and unpredictable temperament and often played manic characters. According to news reports, over 30% of the text of the objectionable 50 minute one-person play “Kinski – Wie ein Tier in einem Zoo“ (in English: Kinski – Like an animal in a zoo) consists of direct Kinski quotes. Some of the quotes appear to have been artistically changed by the play’s author. Mr Kinski’s ex-wife Minhoi Loanic and his son Nikolai objected to this excessive use and filed a claim for copyright infringement at the Regional Court of Cologne. The defendants in the case, actor Hanno Dinger and director Stefan Krause, argued that their use of Kinski quotes in the play complied with German Copyright Law and was in itself protected by “freedom of art”, which Article 5(3) of the German Constitution protects as a basic human right. The defendants stated that they would,…

For the Loser Now/Will later be a win: Sony Music Entertainment (Germany) GmbH v Falcon Neue Medien Vertrieb GmbH
Copyright , Record Labels / February 2009

COPYRIGHT Record labels ARTICLE LINK: By Jeremy Phillips, at the paw lickingly cool IP Kat Scholars and cognoscenti of twentieth century culture will instantly identify the source of the title of this post: Bob Dylan’s “The Times They Are A Changin’“, in which copyright in the classic Dylan recording is now, it seems, safely in Sony’s hands following the ruling of the Court of Justice of the European Communities this morning in Case C-240/07 Sony Music Entertainment (Germany) GmbH v Falcon Neue Medien Vertrieb GmbH. The Advocate General’s Opinion in this reference remains frustratingly beyond the linguistic grasp of this blogger, but today’s ruling has been lovingly translated into his mother tongue from the original German (though Birgit, the most recent recruit to the IPKat team, would have been perfectly equipped to deal with it). So what is this ruling, on a request for a preliminary ruling from the Bundesgerichtshof, all about? Falcon distributed two CDs containing recordings of performances by the artist Bob Dylan: “Bob Dylan – Blowin in the Wind” and “Bob Dylan – Gates of Eden”. These CDs featured tracks that were originally featured in the long-playing vinyl albums “Bob Dylan – Bringing It All Back Home”, “The Times…

Krafwerk sample found not to infringe
Copyright , Music Publishing / December 2008

COPYRIGHT Music Publishing Germany ‘s highest civil court has held that sampling musical notes does not always, in principle, violate copyright, asking that the decision of a lower Hamburg court be reconsidered. The lower court had held that German rap producer Moses Pelham, who used an uncleared two-second sample from Kraftwerk’s 1977 track ‘Metal On Metal’ in the rhythm sequence of the 1997 Sabrina Setlur song ‘Nur Mir’ had infringed the copyright in the song (rather than the sound recording). The new ruling finds that whilst sampling a melody does constitute infringement, the use of ‘notes’ in a recording in such a way that the original melody is not identifiable – which was arguably the case in ‘Nur Mir’ – does not infringe. The higher court decision means the Hamburg court will now have to reconsider the Kraftwerk case again. This decision is similar to the conclusion reached by the US courts in Newton v Diamond (2003) where it was held that the Beastie Boys had not infringed the copyright in the melody of a composition by James Newton as the use was not substantial. As the Beastie Boys had secured a licence to use the sound recording, no action could be brought. http://news.yahoo.com/s/ap/20081120/ap_en_mu/music_kraftwerk_ruling;_ylt=Ap3QE3xrQY2BjMA5V9kDR_SVEhkF http://www.rollingstone.com/rockdaily/index.php/2008/11/21/kraftwerk-copyright-infringement-case-means-victory-for-sampling/

German Collection society cannot licence ‘Grand Right’ in scenes from Disney musicals
Copyright , Live Events , Music Publishing / September 2008

COPYRIGHT Live events industry, music publishing File no.: I ZR 204/05 A German concert promoter, Ulrich Gerhartz (Stimmen der Welt Musikmanagement und Veranstalungs Gmbh) , who staged a show which contained excepts from a number of Disney musicals has been held liable for copyright infringement. The “The Federal Court of Justice (Bundesgerichtshof, BGH) decided that the performance of the various indentifiable pieces from different musicals could be considered as a “dramatic performance” under German Copyright Law (Urheberrechtsgesetz). The claimant, Disney Enterprises Inc., owns of the exclusive right of use and performance of the musicals “Beauty and the Beast”, “The Hunchback of Notre Dame”, “Lion King” and “Aida”. Disney sued a German concert promoter who had staged several shows under the title “The Musical Starlights of Sir Andrew Lloyd Webber and the Disney Musical Productions”. Both the Regional Court and the Appeal Court in Frankfurt decided in favour of Disney. The Federal Court of Justice has now dismissed the final appeal of the concert promoter. Under German law an author or other copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German performing right organisation. As in the…

New data law could benefit music pirates

COPYRIGHT Internet, record labels ARTICLE Germany ‘s music industry fears that a new telephone data law could become a carte blanche for Internet users, who download tunes illegally. Until now, they’ve traced music pirates with the help of phone records – this Deutsche Welle article explores the ‘privacy vs property’ tension.  http://www.dw-world.de/dw/article/0,2144,3220471,00.html 

Zappa Estate take on Zappanale Festival
Live Events , Trade Mark / May 2008

TRADE MARK  Live events  The future of a music festival set up in honour of Frank Zappa is in doubt following a lawsuit brought against the organisers by Zappa’s widow Gail. The Zappanale festival has been running in the German village of Bad Doberan since 1990 as a way of celebrating the records of the avant-garde musician whose records had previously been illegal under the East German Communist regime. Gail Zappa, who formed the Zappa Family Trust in 2002, is demanding that she has a say in which Zappa tribute acts play the event, that the festival’s logo – Frank Zappa’s trademark moustache and goatee – be scrapped, that a statue of the musician in the village be pulled down and that the organizers pay £200,000 for the right to use the Zappa name. Festival organisers counter by saying that they registered the Zappanale mark almost 20 years ago. The Dusseldorf court will consider the dispute. From CMU Daily  http://www.cmumusicnetwork.co.uk

Irish labels take on Eircom
Copyright , Internet , Record Labels / April 2008

COPYRIGHT Record labels, internet The Irish recorded music sector’s four major companies – EMI, Sony BMG, Universal Music, and Warner Music (together as the Irish Recorded Music Association) have decided to take Irish Internet Service Provider (ISP) Eircom to court in order to force them to implement countermeasures against piracy. Willie Kavanagh, Chairman of the Irish Recorded Music Association and Managing Director of EMI Ireland, blamed the action on a “dramatic and accelerating decline” in the Irish music industry’s income: 30% over the past six years, up to 2007. Kavanagh attributed a “substantial portion” of that decline to the increasing use of broadband, facilitating a sharp increase in the use of download services, like BitTorrent or LimeWire. Sales dropped from €146m ($224m USD, not counting inflation) in 2001 to €102m ($157m USD) in 2007, said Kavanagh. The case represents the first of its kind in Eire with record labels taking the ISP to court instead of individual file swappers and attempts to compel Eircom, under the Irish Copyrights and Related Rights Act of 2000, to implement specific countermeasures to prevent its network from being exploited for piracy. Last October Eircomm said that it was in no position to consider monitoring users and was under no…

iPhone lock-ins challenged – Vodafone wins round agains iPhine in Germany
Competition / December 2007

COMPETITION Telecomms ARTICLE LINKS  Last month, Apple was forced by French law to promise that consumers could buy a version of its much-hyped iPhone here without having to be locked into a long-term contract with Orange, the only mobile phone operator offering the new device. Now, the same issue is tripping up Apple’s plans to sell the music-playing cellphone in Germany, the largest European telephone market as Vodafone won a partial victory in the German courts when a temporary injunction granted against T-Mobile under local competition laws. T-mobile had been granted the exclusive right to sell ‘locked’ iPhones in Germany which can only be used on the T-mobile network. In the UK customersw must take out a contract with O2. http://www.iht.com/articles/2007/11/20/business/iphone.php

Bertelsmann settle final Napster claim
Copyright , Music Publishing / October 2007

COPYRIGHT Music Publishing Bertelsmann AG has agreed to pay US music publishers, led by the Harry Fox Agency, $130 million to settle a copyright infringement case brought on by the German media giant’s deal with the Napster P2P service. BMG owner Bertlesmann and venture capital fund Hummer Winblad were targeted as they had both provided funding to the P2P firm in its final phase, mainly in a bid to help the Napster chiefs develop a legitimate royalty paying P2P. If approved by a federal judge, the deal announced Friday by the National Music Publishers Association and BMG would end the four-year lawsuit that accused Bertelsmann of contributing to Napster’s copyright infringement as an original investor — before the online music company changed its business model and became a recognised distributor of licensed music via paid downloads. That deal allowed Bertelsmann to end its involvement in a copyright infringement suit with the other major labels. Bertelsmann has made similar deals with other record labels amounting to $154 million. In all the deals, the company does not admit to any wrongdoing. Napster eventually was shuttered by U.S. courts in 2002 over copyright violations but has attempted to re-establish itself as a legitimate…

eDonkey servers taken offline
Copyright , Internet , Record Labels / October 2007

COPYRIGHT Internet, record labels Legal steps by the record industry in France, Germany and the Netherlands have cut off more than one million users of the one of the largest P2P networks – no doubt to the huge annoyance if music fans. Seven servers on eDonkey were shut down this week after court injunctions in Germany. This follows on from similar eDonkey server closures in Netherlands and France. eDonkey is a peer-to-peer file sharing network widely used to swap copyright infringing music files.  The eDonkey network relies on servers for its effective operation and eDonkey servers are run by one or more individuals using software to enable users to find other users connected to the same server that have files the user wants to download. A series of legal actions by national groups of the International Federation of Phonographic Iindustries, representing the recording industry, have forced many eDonkey servers offline, significantly reducing the effectiveness and reach of the network.  In the last few weeks the number of eDonkey users worldwide has been reduced by more than a million, knocking an estimated third of users off the network.  Fresh actions will continue to target the remaining eDonkey servers. The new actions against…

Germany makes personal copying illegal
Copyright / October 2007

COPYRIGHT All areas The German government has approved an update to its copyright law that essentially makes it illegal to make copies of movies and music, even for personal use. Set to take effect in 2008, the law will make it a crime to copy DVDs and CDs, in addition to IPTV and TV broadcasts, without permission. The country’s Green Party and consumer advocates lobbied for an exemption for personal uses, but to no avail. http://www.variety.com/article/VR1117972434.html

German Court says privacy more important than ‘petty’ file swapping crimes
Copyright , Record Labels / September 2007

COPYRIGHT Record labels The fine balance between individuals right to privacy and copyright owner’s right to protect their intellectual property against theft and infringement swung back in favour of privacy with a ruling by a Local Court in Offenburg Germany which held that public prosecutors were prohibited from requesting ISPs (internet service providers) provide details of an IP address to allow prosecutors to determine of identities of users of a P2P network. On the grounds of “obvious disproportionateness” the court declared that the ISP should protect privacy and pointed to the fact that offering a few copyright-protected music tracks via a P2P network client was “a petty offence” (we are not sure that record labels would agree!). This seems to be a trend in Germany as the public prosecutor’s office in Celle had already refused to determine individuals associated with an IP addresses submitted by a law firm representing copyright owners, a process that would have involved forcing the providers to reveal the relevant personal data, The supervising authority dismissed the complaint as baseless and said that the case did not fulfil the “indispensable condition of an investigation being in the public interest” because the offences committed by the alleged…

Tom Waits reaches settlement over German car
Artists , Image Rights / March 2007

IMAGE RIGHTS Artists Tom Waits has reached a settlement regarding his dispute with German car maker Opel and their advertising agency McCann Erickson. Waits claimed that the car firm had deliberately used a sound-alike on one of their TV ads to imply he had participated in the marketing campaign. The singer sought an injunction to stop the ads and at least $300,000 in damages. The exact nature of the out of court settlement is not know, though Waits has pledged to donate the money he will receive to charity. Confirming they had reached an agreement with the singer, McCann Erickson said yesterday: “We respect Mr Waits, and deeply regret any embarrassment this may have caused”. The settlement comes almost exactly one year after Waits won a similar court case in Spain where Volkswagen had also used a sound a like in a TV ad. Waits, famously critical of artists who take the advertising dollar off big business, said after yesterday’s settlement was announced: “I’m glad to be out of the car sales business once and for all”.

EMI signs as streaming deal with AOL, Warners ties up with Last.FM , Viacom takes on YouTube and JASRAC are still not best pleased!
Copyright , Internet , Record Labels / March 2007

COPYRIGHT Internet, record labels EMI Music has signed an advertising-supported music video streaming agreement with leading digital content provider AOL Europe. The agreement, covering the UK, French and German markets, enables consumers to stream music videos free-of-charge via the AOL portal. All forthcoming new releases will be available for music fans to stream, as well as music videos from EMI Music’s extensive back catalogue. EMI Music will also benefit from additional exposure for EMI’s artists via promotional activity such as “Artist of the Month” and “Breakers.” Exclusive “AOL Sessions” are also planned, with all recordings to be made available for AOL users to stream. Consumers will have access to music videos from EMI Music artists, including Coldplay, Corinne Bailey Rae, Norah Jones and Lily Allen, as well as Camille, Diam’s and Raphael from France, and Wir Sind Helden and La Fee from Germany. AOL is a global Web services company and a majority-owned subsidiary of Time Warner Inc. And Warner Music has entered into a streaming license with Last.fm covering the US and Europe. This is Last.fm’s first content deal with a major. In the February issue of Five Eight there will be an interview with Martin Stiksel, co-founder of…

Norway rules that Apple DRM is illegal
Competition , Record Labels / February 2007

COMPETITION Labels, technology As France, Germany and Finland join the growing list of countries looking at iTune’s DRM and lack inter-operability which include Sweden and Denmark, the Norwegian Ombudsman rules the software illegal and the Dutch Consumer Protection Agency joins the protest against Apple in the Netherlands.   http://www.theregister.co.uk/2007/01/24/apple_drm_illegal_in_norway/ http://www.canada.com/topics/technology/news/gizmos/story.html?id=bdd7e7d2-1639-46a5-bb71-f9830c61b608&k=878

New rules for illegal downloading in Germany
Copyright , Internet , Record Labels / December 2006

COPYRIGHT Internet, record labels In Germany, Justice Minister Brigitte Zypries has introduced draft legislation limiting fines for private downloading to a cap of 50 euros ($64) per case in Germany. Zypries said that ”the limitation for the first warning letter from a lawyer ensures that we don’t exaggerate in punishing copyright breaches”.  The maximum applies only to those who download without intending to resell it.  To fine the downloaders, the music industry has been using a provision of German law that allows lawyers to force wrongdoers to write apologies, and then to pay the law firm’s entire bill.  In future, the law firms would only be able to charge members of the public 50 euros per incident for this service. Zypries also said that the darft legislation would also increase powers to prevent product piracy, enabling German customs agents to rapidly destroy counterfeit goods that imitate famous brands.

IFPI continue actions against file swappers
Copyright , Internet , Record Labels / November 2006

COPYRIGHT Record labels, internet Legal actions against thousands of music file-sharers across the world have been announced as the recording industry stepped up its campaign to deter copyright theft and promote legitimate use of music on the internet. Over 8,000 new cases in 17 countries are being announced today, including the first ever cases against illegal file-sharing in the two biggest markets of South America and in Eastern Europe.   A total of more than 13,000 legal actions have now been taken outside the United States. Legal actions are being extended to Brazil, where more than one billion music tracks were illegally downloaded last year and a country where record company revenues have nearly halved since 2000. Mexico and Poland are also seeing actions for the first time – while a further 14 countries are launching fresh actions against illegal file-sharing.  Over 2,300 of people have already paid the price for illegally file-sharing copyrighted material, with average legal settlements of €2,420.   Many of those on the receiving end of legal action are parents whose children have been illegally file-sharing.  They are finding that in many countries they are liable for any activities third parties undertake using their internet connection.  In…

FKP Scorpio Konzertproduction Gmbh v Finanzamt Hamburg-Eimsbüttel ECJ C290-04
Artists , Live Events , Taxation / November 2006

TAXATION Artists, Live Music Industry In May 2006 Advocate General Leger expressed his opinion in the case of FKP Scorpio Konzertproduktion. Scorpio, a German concert promoter, contracted with a Dutch tour promoter in 1993 for performances by American and European artists in Germany. Scorpio did not pay any German withholding tax and the tax authorities raised a massive tax assessments because of breach of of the German Einkommensteuergesetz (Income Tax Law). The Bundesfinanzhofraised four questions to the ECJ: (1) is it correct that non-residents fall under a withholding tax, and residents not; (2) does the withholding tax at source need to be reduced because of the expenses of the non-residents, because residents only pay tax on their net income after the deduction of expenses;(3) can an exemption provided for in a tax treaty be used without the explicit approval of the domestic tax authority; (4) do the answers to these questions also apply to artists and sportsmen living outside the EU? The Scorpio case attacks the artist tax system more explicitly than theGerritse case and the German tax authorities have already allowed organisers of performances to postpone the payment of the withholding tax for non-resident artists AG Leger opined that neither the procedure of deducting tax…

Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften ECJ C386-04
Live Events , Taxation / November 2006

TAXATION Live Event Industry This case concerns an Italian non-commercial foundation which provides education for classical music students. The institution is exempt from the Italian l’imposta sul reddito delle persone giuridiche (Corporation Tax) and comparable German institutions would be exempt from the German Körperschaftssteuergesetz (Corporation Tax Law). The Centro di Musicologia Walter Stauffer had rental income in Germany which was taxed under a of the German KStG but could not make use of the exemption for cultural institutions, because it was not based in Germany. The German Bundesfinanzhofhas raised the question to the ECJ, whether this exclusion for non-resident institutions is correct under the EC Treaty as an Italian institution would suffer tax on income whereas as comparable German institution would not. The European Court of Justice (Third Chamber A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr, A. Borg Barthet and U. Lõhmus (Rapporteur), Judges) decided that the fact that the tax exemption for rental income applies only to charitable foundations that are resident in Germany places charitable foundations resident in other Member States at a disadvantage and may constitute an obstacle to the free movement on capital. Thus in principle the legislation constitutes a prohibited restriction on the free movement of capital. Accordingly, the ECJ decided…

Centro Equestro de Leziria Grande Lda ECJ C345-04
Live Events , Taxation / November 2006

TAXATION Live Event Industry The case of Centro Equestro de Leziria Grande Lda concerns German Einkommensteuergesetz (Income Tax Law) and the very strict application of tax refunds for non-resident artists. The German tax authorities have created theVereinfachtes Erstattungsverfahren (Simplified Tax Refund Procedure), but only expenses that are directly connected with the performances are taken into account and these expenses need to be more than 50% of the earnings. Applications are only considered when the original invoices are attached. The procedures are somewhat complex and not widely used. The Portugese company Centro Equestro de Leziria Grande wanted to make use of the procedure because it had paid 29% withholding tax on the fees for its 11 horse shows in 1996 in Germany and had calculated post-tour that the total expenses (both direct and indirect) had been higher than the gross earnings. One of the horses had died during the German tour, giving an additional depreciation for the book value of the animal. The German Bundesamt für Finanzen (Tax Office) rejected the application for a full tax refund because the indirect expenses were not accepted. The Bundesfinanzhof raised the question to the ECJ, whether this strict procedure is correct under the EC Treaty, because German resident artists and sportsmen are taxed…

3500 file swappers targeted in Germany
Copyright , Internet , Record Labels / June 2006

COPYRIGHT Record labels, internet The biggest single action against illegal file-sharing internationally has taken place in Germany today as 3,500 illegal music file-sharers faced criminal prosecution for uploading large amounts of copyrighted material on peer-to-peer networks. Investigators identified individual illegal music file-sharers who were using the eDonkey network to offer up to 8,000 copyright infringing music files on the internet.  Each of the individuals now faces both criminal prosecution and claims for compensation for their actions under civil law.  They are likely to face damage claims of up to several thousand euros for distributing music on file-sharing networks according to the IFPI. Police searched 130 premises to gather evidence in the investigations, which have been running for several months. The actions were coordinated by the Public Prosecution Service of Cologne and the Police Authority of Bergheim. In Germany, legal physical sales of music have fallen by a third in five years, while more than 400 million music files were downloaded illegally in 2005 alone and the German recording industry has taken high-profile actions against file-sharers since early 2004.  They are part of an international campaign that has seen more than 7,000 legal proceedings brought against uploaders in the last three…

New German laws criticized by consumer groups
Copyright , Internet , Record Labels / April 2006

COPYRIGHT Internet, film & television, record labels   Germany has passed tough new anti-piracy laws which provide for prison sentences of up to two years for downloading for private use and five years for commercial use. German Consumer Groups have criticized the law for sending out the ‘wrong signals’. But German ministers have responded by pointing out that most downloaders clearly know what they are doing is illegal and that illegal downloading of films is theft. The law allows consumers to copy a legitimately purchased DVD for limited private use. The German music industry also claims to be suffering from piracy and in 2005 suffered its seventh annual fall in turnover in a row to E1.7 billion (£1.2 billion). The German record industry estimates that the equivalent of 439 million CDs were illegally copied or downloaded in Germany in 2005. http://www.timesonline.co.uk/article/0,,13509-2100973,00.html The Recording Industry in Numbers (IFPI) www.ifpi.org

German Appeal Court upheld principle that links sites can be illegal
Copyright , Internet / September 2005

COPYRIGHT Internet The Munich Intermediate Court of Appeals has upheld a decision of a lower court that a site providing links to another site providing illegal copying software. Heise online had published a story in January about Slysoft’s anyDVDprogramme. They were taken to court for an alleged breach of Section 95a of the Copyright Act,” which bans, among other things, the manufacture, import, propagation, sale, renting, and advertisement of ‘tools to crack copy-protection mechanisms.’ The plaintiffs felt that merely providing a link to the homepage of a manufacture of copying software itself constituted a breach of this Section. In addition, Heise was accused of having provided ‘instructions on how to crack copy-protection mechanisms’ in the report. Finally, the news report was considered ‘illegal advertising’ for the sale of the software. See: http://p2pnet.net/story/5746 See Law Updates May 2005 for the lower court’s decision in this case. See Law Updates March 2005 German court clears ISPs of liability for infringing uses by third parties and see Law Updates August 2005 Links site found to infringe copyright in Australian judgment.

German court rules that the discoverer of a long lost Vivaldi opera may forbid unauthorized performances
Copyright , Music Publishing / August 2005

COPYRIGHT Music Publishers In a case reminiscent of Hawkins v Hyperion, the right of two music festivals to perform Vivaldi’s long-lost operaMotezuma is being contested in Germany. A German court has ruled that the Berlin Sing-Akademie, in whose archives the incomplete 18th-century manuscript was found, has the right to authorize and forbid performances of the work. A concert performance of Motezuma took place in June in Rotterdam using an edition prepared by German musicologist Steffen Voss, who discovered the manuscript in 2002, and Italian musicologist and conductor Federico Maria Sardelli, who conducted the world premiere with his Baroque ensemble Modo Antiquo. The Sing-Akademie filed civil lawsuits against Italy’s Opera Barga and Düsseldorf’s Altstadtherbst Kulturfestival, both of which have planned staged versions of the work. The Akademie claims to have published the manuscript on its web site, and says that it is protected by German copyright law, which holds that the finder of a work can own the rights to its performance for 25 years – effectively a form of restricted act in copyright owned by the finder. See: http://www.playbillarts.com/news/article/2437.html

Hamburg Court refuses labels to allow access to private data
Copyright , Internet , Record Labels / June 2005

COPYRIGHT Internet, Record Labels Internet Service Providers in the state of Hamburg can’t be forced to provide customer data to record companies, even when illegal copying is suspected, at least for now. The Higher Regional Court in Hamburg has ruled that there is no legal basis for demanding customer data as ISP merely provide access to the internet and do not facilitate or undertake a criminal act. The Higher Regional Court overruled a earlier decision by the Hamburg District Court, which had granted record companies access to customer data after they discovered an FTP server where numbers by German band Rammstein could be downloaded for free. The District Court based its ruling on the German Copyright Act. The Higher Regional Court in Hamburg, however, followed a similar ruling by judges of the federal state of Hesse. Here too the court rejected the claim by a music group to hand over the name of a customer who ran an illegal music server. Experts believe that the setback for the record industry is only temporary as legislators in Germany are drafting a newTelemedia Act, granting the recording industry more freedom in obtaining data from internet service providers. See: http://www.theregister.co.uk/2005/05/17/hamburg_isp_ruling/

Links to piracy tools ruled illegal in Germany
Copyright , Internet / May 2005

COPYRIGHT Internet A German district court has ruled that German website Heise.de has violated the country’s copyright legislation by linking to SlySoft’s website. SlySoft is the maker of ANYDVD, a software product that allows cracking the copyright protection found on most DVD-Video discs, and CloneCD, a tool that allows backing up virtually all of the copy protected audio CDs. The website defended itself by pointing out to the freedom of speech that is defined in German constitution, but the first-instance district court of Munich ruled that the protection of intellectual property goes before the freedom of speech. The Court decided that direct linking made finding the product much easier and thus increased the danger of copyright violations significantly. However the court also ruled that articles about tools that allow breaking copy protection mechanisms can be published legally, it is just the linking to such tools that can’t be done legally in Germany. The court ruled that Heise Zeitschriften Verlag, the owner company of the website pay 500,000 euros in damages to the music industry. See: http://www.heise.de/english/newsticker/news/58315