CTS to appeal competition rulings
Competition , Live Events / January 2018
Germany

COMPETITION Live events sector   CTS Eventim is to appeal the decision by the German Federal Cartel Office (Bundeskartellamt) which prohibits the Munich-based ticketing giant, the market leader in ticketing in Germany with a 50–70% marketshare in Germany, of requiring partners to “only sell tickets exclusively or to a considerable extent via CTS’s eventim.net ticket sales system” – something it claims is an abuse of the company’s dominant market position. The Bundeskartellamt said that these “abusive exclusivity contracts with event organisers and advance booking offices” are shutting out competing ticketing companies and “encouraging a general trends towards further monopolisation” in Germany. Under the regulator’s decision, Eventim partners must have the option of selling at least 20% of their inventory annually via other ticket agencies, if their deal with the company is longer than two years. CTS has been given four months to comply with the ruling. Andreas Mundt, president of the Bundeskartellamt, said: “As the operator of the largest ticketing system in Germany, CTS Eventim holds a dominant position in the market. Under competition law, a company with such a market position has special obligations …. Where CTS Eventim commits its contract partners to sell tickets exclusively via its own ticketing system, the…

Love Parade trial begins in Germany
Health & Safety , Live Events / January 2018
Germany

HEALTH & SAFETY Live events sector   Ten of the organisers of the tragic 2010 Love Parade festival are now on trial in Germany.   The ten defendants – four employees of the festival’s promoter, Lopavent, and six officials of the city of Duisburg, in North Rhine-Westphalia, were initially cleared of any wrongdoing in an April 2016 decision by the Duisburg state court, which found there was “no sufficient case to answer”. The ruling was widely criticsed and was described as a “judicial scandal” by relatives of the deceased. The appeals court overturned the decision in April of this year, with prosecutors saying they are confident of convictions the second time around. Twenty-one people died, and more than 650 were injured in the 24th July 2010 crush in a tunnel that served as the sole entrance to the techno festival. Over a million people are said to have attended the 2010 event, which was held at a former goods yard with a capacity of around 250,000. The victims included festivalgoers from Spain, Australia, Italy, Bosnia-Herzegovina, China and the Netherlands. The defendants face charges of negligent manslaughter and bodily harm. If convicted, they face up to five years in prison each  The scale of…

CTS Eventim’s acquisition of Four Artists blocked
Competition , Consumers , Live Events / December 2017
Germany

COMPETITION / CONSUMER Live events sector   Germany’s competition regulator has blocked CTS Eventim from acquiring Berlin-based booking agency Four Artists, citing concerns about the ticketing firm’s dominance in the country’s live industry. Among the artists represented by Four Artists are David Guetta, James Blunt, Chase & Status and Best Coast. Andreas Mundt, the President of Germany’s Federal Cartel Office (Bundeskartellamt) , said: “CTS Eventim is already the market leader in Germany and by far the largest ticket system. In addition, it has already integrated various tour operators into its group structure in the past” adding that the Four Artists acquisition “would strengthen CTS’s existing dominant position [in the ticketing market] thereby significantly hindering effective competition in the affected markets” explaining that “With Four Artists, CTS Eventim would integrate a major event organiser into its group, locking additional ticket allocations of between 500,000 and one million tickets per year to its own system”, it went on. “The expansion possibilities for competing ticket system providers would thereby be weakened”. The Bundeskartellamt said the CTS Eventim system distributes 60 to 70 per cent of all tickets sold in Germany via its systems. In contrast, most other providers are much smaller, and “in part…

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

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…

YouTube-MP3 agrees to shutter
Copyright , Internet , Music Publishing / October 2017
Germany
UK
USA

COPYRIGHT Internet, recorded music   YouTube-mp3 has agreed to shut down and hand its domain(s) over to the Recording Industry Association of America (RIAA). With millions of visitors each day, the ‘steam ripping’ YouTube-MP3.org was one of the most visited websites on the Internet.  Last year, the Germany-based YouTube to MP3 converter website was sued by the RIAA for copyright infringing their rights.  It had also been sued by the record industry in its home country in 2013. Now in an agreed settlement, YouTube-MP3 will shut down indefinitely. The BPI (British Recorded Music Industry) and the IFPI (International Federation of the Phonographic Industry) were also parties to the action, which accused the site of not only copyright infringement, but also circumventing YouTube’s copy protection mechanism, and violating the USA’s Digital Millennium Copyright Act. A report earlier this year by the UK’s Intellectual Property Office and PRS For Music said that stream ripping was now the “most prevalent and fastest growing form of music piracy”. According to an IFPI  report published last year, the site has been reportedly attracting more than 60 million monthly visitors. In the same report, it was mentioned that 50 percent of the 16 to 24-year-old survey respondents used stream ripping services…

Love Parade organisers will face criminal charges over 2010 deaths
Germany

HEALTH & SAFETY Live events sector   A German court has ruled that the organisers of the “Love Parade” techno-festival will stand trial in connection with the deaths of 21 people in a crowd crush ithat took place in in 2010. More than 500 others were injured in the crush. The disaster on the 24th July 2010 was the result of  a crush in a tunnel that served as the sole entrance to Love Parade. Over a million people attended the dance music festival, which was held at a former goods yard in Duisburg, with a capacity of around 250,000. The event, which began in 1989, was permanently cancelled by organisers. Ten people will now face criminal charges for the disaster in Duisburg after the court in Duesseldorf overturned the previous decision to drop the charges of negligent manslaughter, now holding that the case could be “proven with sufficient probability”, based on the available evidence. Four event organisers and six municipal employees will be tried. All had previously denied wrongdoing. In a statement, the regional appeals court said the results of an investigation suggested that “breaches of the duty of care with which the accused are charged were the cause of the deaths and injuries”…

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

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

Canadian ticket agency fined for additional fees
Consumers , Live Events / December 2016
Canada
Germany

CONSUMER Live events sector   Canadian promoter and ticket agency Evenko has been fined C$10,056 for misleadingly pricing concert tickets after Quebec’s Office of Consumer Protection (L’Office de la protection du consommateur, OPC) took action against L’Aréna des Canadiens, Inc., trading as Evenko OPC found the company failed to offer a free delivery method for tickets to shows by Charles Aznavour and Enrique Iglesias at the 21,000 capacity Centre Bell in Montreal in 2014. The OPC noted that in Quebec “it is prohibited for any merchant, manufacturer or advertiser to charge a higher price than that advertised.” According to OPC, Evenko charged $5 to email the tickets or $7 to have them posted, and offered no option for picking up tickets (for free) at the box office. In Quebec the OPC say “Traders are compelled to provide an ‘all-inclusive’ price” for tickets, “which includes all fees except taxes. For example, in the case of a concert ticket, the price must include the service charge and [any other] fees related to the delivery of the ticket.” In September the district court of Bremen, Germany, ruled that charging fees on print-at-home tickets is unlawful. In New York Live Nation/Ticketmaster is facing a claim from plaintiff…

The sound of music: YouTube and GEMA finally settle
Copyright , Internet , Music Publishing / December 2016
Germany

COPYRIGHT Music publishing, internet     It’s been one of the biggest stand-offs in digital music history – but now it appears that YouTube and German collection society GEMA have finally reached a licensing agreement – meaning German consumers can now finally (legally) use YouTube to stream music videos   Someone must have blinked, although the blank screens in one of the world’s major economies clearly helped neither side. Now the platform and the collection society say they had reached a new deal for compensating music publishers (and songwriter artists), resolving a dispute that began in 2009. The resolution comes against a backdrop of European officials reviewing the region’s copyright rules – potentially giving more power to record labels, publishers and other content producers over the likes of Google, which owns YouTube, and Facebook. The labels, music publishers and more recently recording artistes have accused YouTube of grossly under paying for using sound recordings and music. YouTube declared the settlement as a victory for musicians, saying they could reach “new and existing fans in Germany,” while GEMA said its 70,000 members would receive “fair remuneration” when their works were played over the platform. But neither side published the details of the agreement….

Rock am Ring organisers cleared of blame for extreme weather evacuation
Health & Safety , Live Events / November 2016
Germany

HEALTH & SAFETY Live events sector   There will be no prosecution of the organisers of the storm-hit Rock Am Ring 2016. Following a anonymous complaint The Koblenz public prosecutor, investigated the safety procedures and emergency storm plan drawn up by festival promoters Marek and Andre Lieberberg/CTS Eventim and licensing authorities and found no evidence of negligence on either part.   At the International Festival Forum in an interview with both Marek and Andre Lieberberg, the promoting father and son due suggested that the authorities had compounded an already bad situation caused by the extreme weather by making unfounded decisions and putting concert goers at further risk. The final day of Rock am Ring was called off by local authorities who revoked the licence after another lightning storm warning:  72 people were treated in hospital and some people had been injured by lightning, some seriously. In fact the last day was relatively free of bad weather, with just one heavy downpour as storms swept across Europe. In a statement, the festival asked fans to leave the site “no later than noon on Sunday” (the predicted storms were die by 13.00).   “The organisers accept the decision [of local officials] because of our…

Authors against music piracy: German sentences online service Uploaded to pay damages
Copyright , Music Publishing / October 2016
Germany

COPYRIGHT Music Publishing   German collective management rights organisation GEMA has won its case in the Regional Court Munich against file-sharing host Uploaded. The decision confirms that file-sharing hosts are liable to pay damages if they do not prevent the upload and distribution of copyright-protected contents. The Regional Court in Munich ruled  (10 August 2016) that online services whose business models are based on large scale copyright infringements are liable to pay damages. “The Regional Court has decided in the interest of our members. Their ruling confirms that file-sharing hosts play a significant role in the proliferation of music piracy” said  Dr Tobias Holzmüller, GEMA’s General Counsel, welcoming the decision. “Online service providers have previously only been obliged to remove contents infringing copyright from their platforms. By pronouncing the liability to pay damages for file-share host Uploaded, composers, lyricists and music publishers at least get a small compensation for the rights infringements of their works that have been committed on a massive scale.” File-share hosts such as Uploaded provide their customers with storage space so they can upload files. They create links to the uploaded files which are then disseminated as publicly accessible collections of links. The regional court Munich classifies Uploaded as a service which constitutes a specific…

Print at home’ ticket fees ruled illegal in Germany
Consumers , Live Events / October 2016
Germany

CONSUMER Live events sector   A German court has delivered a preliminary ruling that fees for ‘print at home’ tickets should not be allowed, in a case brought against ticketing firm CTS Eventim by consumer rights group Verbraucherzentrale NRW. In their press release, Verbraucherzentrale NRW said that the ruling, could pave the way for similar action against other ticketing agencies which charge similar fees. The court said that if a fee was charged, then the provider was contractually bound to send out actual tickets. CTS Eventim charged customers a €2.50 fee for printing tickets at home through their “print @ home” and “ticketdirect” options. The decision is not (as yet) legally binding, The district court of Bermen found that services charges on self-printed tickets, better known here as print-at-home tickets, are “inadmissible,” or unzulässig in German and that CTS Eventim cannot charge such fees to their customers. The court ruled that the company can only charge ticket fees on “postage costs.” CTS Eventim has told IQ that it intends to appeal the ruling, which has yet to be reatifed by the higher court. http://www.completemusicupdate.com/article/german-court-rules-print-at-home-ticket-fees-illegal/

Techno’s beating heart is a place of high culture in German law
Live Events / October 2016
Germany

PLANNING Live events sector   While British institutions of power seem to work towards suppressing the country’s nightlife, German authorities are taking the opposite approach. According to German publication Der Spiegel, Berghain has won a legal case that defines its activity as “high culture” – with the Brandenburg court ruling that Berghain, the 1,600-capacity Berlin nightclub widely regarded as the world capital of techno, is a place of cultural significance and thus entitled to be tax as a site of high culture. The court battle stemmed from Berghain being threatened by greater taxation. German law taxes institutions classed as ‘entertainment’ at a rate of 19 per cent, while institutions seen as sites of ‘high culture’ are taxed at seven per cent. Tax officials argued that Berghain is “ruled by entertainment, not by culture” since it’s a place where people dance, have fun and take drugs, while the nightspot countered that as a site of musical performances it should be afforded the same standing as classical music halls. In the past Berghain (pictured) would pay tax of 7% on its earnings – the same rate as museums, theatre and concert venues. The German fiscal court in Cottbus ruled in favour of Berghain,…

Love Parade litigation re-commenced
Health & Safety , Live Events / October 2016
Germany

HEALTH & SAFETY Live events sector     Three people injured at the tragic  2010 Love Parade have commenced new civil proceedings in Germany against those involved in organising the tragic 2010 festival. There have been over unsuccessful 30 civil cases brought against festival promoter Lopavent, the city of Duisburg and the state of North Rhine-Westphalia since 2010. In April this year a court that no one would stand trial over the disaster, which left 21 dead and over 500 were injured. The disaster on the 24th July 2010 was the result of  a crush in a tunnel that served as the sole entrance to Love Parade. Over a million people attended the dance music festival, which was held at a former goods yard in Duisburg, with a capacity of around 250,000. The event was permanently cancelled by organisers. German public broadcaster WDR reports that one woman, who suffered concussion, is seeking €73,000 in damages, with two more seeking between €34,000 and €56,000 each. Lawyer Bärbel Schönhof who is representing the first woman, a 51-year-old from Duisburg, says despite the failure of earlier lawsuits she is confident of a victory, “because I am of the view that [the] irresponsible behaviour of…

German Constitutional Court sends sampling saga into another loop
Copyright , Music Publishing / July 2016
Germany

COPYRIGHT Recorded Music   By Mark Schweizer In 1997, German music producer Moses Pelham took a two second sample from Kraftwerk’s 1977 song “Metall auf Metall” and used it as a continuous loop for the song “Nur mir” performed by Sabrina Setlur. In 2004, Kraftwerk sued Pelham for violation of their phonogram producers’ rights and obtained an injunction against the distribution of “Nur mir”. The case went all the way to the Federal Court of Justice (BGH), which held in 2008 that even sampling the “tiniest sliver” (“kleinste Tonfetzen”) of a record infringed the record producer’s right (§ 85(1) German Copyright Act). The defence of Article 24 Copyright Act (Freie Benutzung) was in principle applicable, but required that it was not possible to recreate the sampled sound without copying from the original recording. The BGH sent the case back to the lower court for the factual determination whether it was possible to recreate the sampled sound in the specific case. The lower court found that it was indeed possible for the average music producer to recreate the same sound without sampling, and in 2012, the BGH dismissed another appeal by Pelham against that decision. It namely held that its interpretation of the law did not violate the constitutional freedom of…

Love Parade tragedy – criminal charges dropped
Germany

HEALTH & SAFETY Live events sector     A German court has ruled that the 10 people charged in connection with the deaths of 21 and injury of over 500 at the final Love Parade festival have “no case to answer”. The Festival, which began in 1989 as a Berlin-based free event, began travelling to different German cities each year in 2007, and was taking place in Duisburg in 2010. The event was always well attended, and though turnouts had fallen in the years prior to 2010, it was estimated by investigators that almost half a million people had attended that year on the site on a former freight rail yard. The site’s capacity, however, was 250,000 and despite the large number of people attending, crowds entering were funnelled through a single underpass (pictured), which quickly became crowded on the Saturday morning of the event – there was a surge in the crowd, which caused panic in the tunnel  -followed by a stampede. In 2014 six of the event’s organisers and four city workers were charged with negligent manslaughter and bodily harm. On conviction they faced up to five years in prison. All denied any wrongdoing. Earlier six people had…

Live music sector puts CMO ‘kickbacks’ into the spotlight
Copyright , Live Events / April 2016
EU
Germany
Netherlands
UK

COPYRIGHT Live events sector     They may not want to be in the spotlight, and the until recently practices of ‘discounts’ or ‘rebates’ offered by European Collective Management Organisations such as Buma-Stemra in Holland and GEMA in Germany to large and established live music promoters and venues were relatively unknown. But 2016 saw the topic rear up as one of the main talking points at this year’s International Live Music Conference (ILMC). The Conference held a packed main conference session dedicted to the topic and with managers for Mark Knopfler and Muse on the Stage along with representatives from two Collection Societies, and many artiste and songwriter representatives expressed their anger at the practice. Back in July 2015 Music Law Updates reported that Dutch collection society Buma’s practice of rewarding the country’s biggest promoters with a kickback for ‘helping’ to collect the levy on live music concerts (which is meant to remunerate songwriters and music publishers for the use of their works) had come under fire after a number of tour accountants for performers who pen their own material could not reconcile deductions made by promoters against revenues received by their songwriter clients from their own collection societies – even after taking…

The Higher Regional Court in Munich decides that licensing duties lie with the uploaders, not YouTube
Internet , Music Publishing / March 2016
Germany

COPYRIGHT Music publishing, internet     The Higher Regional Court Munich (OLG) has decided that YouTube and its service cannot be called to account for any copyright infringements. Instead, the judges found that the sole responsibility lies with individual uploaders, even though GEMA is keen to point out “YouTube generates substantial economic profits by making the videos available”. Based on this decision, YouTube is presently not held financially accountable within the current legal framework when works protected by copyright are used on the platform.. The action against YouTbe was brought by GEMA which represents the copyright of more than 70,000 members (composers, lyricists and music publishers) in Germany, and more than two million copyright owners globally. It is one of the largest collective rights management organisations for authors of musical works in the world. The GEMA press release says this: On 28 January 2016, the Higher Regional Court Munich (OLG) pronounced the decision regarding the claim for damages against YouTube (file number 29 U 2798/15). This was another instance where the judges could not bring themselves to recognise YouTube as a copyright infringer and subsequently hold it accountable for payment of an adequate remuneration for authors. “Today’s decision is most regrettable. The court has obviously followed YouTube’s argumentation that it is only the…

German Judges put secret EU-US trade negotiations into the spotlight
Restraint of Trade / March 2016
EU
Germany
USA

TRADE AGREEMENTS All areas     German judges have dealt a blow to US-EU free trade agreement talks after declaring a proposed arbitration court illegal. But the decision is a rare glimmer of good news for opponents of the secretly negotiated trade agreement, as the signing of the US-EU Transatlantic Trade and Investment Partnership (TTIP) is imminent, and comes hard on the heels of the already signed Trans Pacific Partnership Agreement (TPP) – another international trade agreement that was negotiated in secret between tweleve Pacific Rim nations including the US, Canada, New Zealand, Peru, Mexico, Vietnam and Japan.   As part of the TTIP, the European Commission had proposed setting up an investment tribunal court that would allow firms to challenge government decisions: these are the so called Investor-state dispute settlement (ISDS) provisions –  instruments of public international law, which grants an investor the right to initiate dispute settlement proceedings against a foreign government. Critics says the new court, which is intended to replace the actual ISDS system, would be even worse – and would will pressure governments into clawing back consumer protection rights, pushing up the price of medicines and watering down environmental protection to favour of corporate interests. Now the German Association of Magistrates, the…

Youtube partially triumph over GEMA – but needs to do more
Copyright , Internet , Music Publishing / August 2015
Germany
USA

COPYRIGHT Internet, music publishing     Google has won a legal victory on over German performing rights society GEMA, which had sought to make the company’s video-sharing service YouTube pay each time users streamed music videos by artists it represents. A Munich court rejected GEMA’s demand that YouTube pay 0.375 euro cents ($0.004) per stream of certain videos. In its claim, GEMA had picked out a sample of 1,000 videos which it said would cost YouTube around 1.6 million euros. However the German regional court  ruled that Google’s video-sharing website YouTube must prevent users from posting material that infringes copyright law once such a video has been brought to its attention. “However, if such a service provider has been made aware of a clear violation of the law, it must not only remove the content, but also must take precautions to avoid further infringements of copyrights,” the court said in its ruling. Both sides had appealed an earlier 2012 ruling. “What obligations the service provider has in this context — in particular whether and to what extent it is obliged to block and then check and monitor the content uploaded to its platform — is determined by what it can reasonably be expected…

Apple reverse ‘no royalty’ launch policy after Swift pulls out
France
Germany
UK
USA

COPYRIGHT Internet, recorded music    Apple Music has reversed its (non) payment policy, a day after the singer Taylor Swift said she was refusing to allow the company to stream her album 1989 because the computer and music giant were offering no royalties in a three month launch period free trial period for subscribers. Indepdent record labels and their trade bodies including AIM (UK), A2IM (US), UFPI (France) and VUT (Germany) had already voiced their critcims. Now Apple says it will pay artists for music streamed during trial periods. “We hear you @taylorswift13 and indie artists. Love, Apple,” tweeted executive Eddy @Cue. Swift had said the plan was “unfair”, arguing Apple had the money to cover the cost and AIM CEO Alison Wenham had written to AIM members to encourage them to “make their own decision” about Apple Music – but criticised the new streaming service for essentially “asking the independent music sector to hedge its risk, to fund their customer acquisition programme and to shoulder the financial burden for their global launch.” http://www.musicweek.com/news/read/german-and-french-organisations-latest-to-criticise-apple-music-terms/062110 And see Eamonn Forde’s article in the Guardian here   George Chin writes   On Monday 8th June, Apple launched its music streaming service, aptly named – Apple Music –…

EU gives all clear for PRS-GEMA-STIM hub
EU
Germany
Sweden
UK

COMPETITION Music publishing   The European Commission has given the all clear for European collecting societies PRS, STIM and GEMA – which represent publishers and songwriters in, respectively, the UK, Sweden and Germany – to form a central hub to license and process royalties from multi-territory digital services. PRS For Music CEO Robert Ashcroft: “This is a very significant day for online music licensing as our new joint venture is uniquely positioned to deal with the rapidly transforming online music market. What this clearance means is that we are now able to work even more effectively on behalf of songwriters, composers and their music publishers, while at the same time helping to develop the Digital Single Market across Europe” whilst STIM CEO Karsten Dyhrberg Nielsen said: “Today’s competition clearance announcement is testament to the incredible work that has gone into the design of this new offering, which will provide a seamless service for both music rights holders and pan-European digital service providers. It’s the result of years of productive collaboration between STIM, GEMA and PRS For Music to deliver a solution that will help the digital market grow”.

Important sampling decision from the German courts
Germany

COPYRGHT Recorded Music, song writing   This Update is from Birgit Clark writing on the IPKat blog The German Federal Court of Justice (Bundesgerichtshof) this week had to decide on the legality of using short musical sequences as background loop for a rap song ( decision of 16 April 2015 – I ZR 225/12 Goldrapper).  In a copyright infringement case brought by French Gothic group Dark Sanctuary against German rapper Bushido, the Bundesgerichtshof disagreed with Higher Regional Court of Hamburg ( OLG Hamburg, decision of 31 October 2012 – 5 U 37/10) and held that the original link (or connection) between the lyrics and the music of a song is not protected by copyright.   Dark Sanctuary had objected to Bushido’s use of parts of their songs for 13 of his own rap songs. Bushido had electronically copied (“sampled”) sequences of about 10 seconds of the music of Dark Sanctury’s original song recordings, however without using the original lyrics. He had then turned these sampled melody sequences into a repetitive loop, combined this with a beat and added his own rap lyrics.  Dark Sanctuary regarded this use of their recordings as copyright infringing and inter alia demanded compensation and that Bushido cease using their music.  …

Zimmer in the frame over movie music claim
Copyright , Music Publishing / February 2015
France
Germany
USA

COPYRIGHT Music publishing   Our third plagiarism update in music this month now. And there’s that old saying isn’t there – “where there’s a hit – there’s a writ” and whilst this blogger often spies claims of plagiarism, sampling and sometimes even downright copying which usually result in at least the threat of a lawsuit in the film, TV and music sectors, a claim in relation to the Oscar winning movie 12 Years a Slave has also thrown up claims violations of moral rights (under the copyright laws of Germany and France) – but in a US court.. The Hollywood Reporter lets us know that a U.S. civil lawsuit has been filed on behalf of composer Richard Friedman against composer Hans Zimmer, along with 20th Century Fox, Sony Music and various companies connected to the movie, for the alleged inclusion of a copyrighted music composition into the film’s main musical theme. According to the complaint, filed in a Californian federal court, the “Solomon Northup” theme in the movie can be traced to a 2004 Friedman composition titled “To Our Fallen,” which allegedly was widely distributed as part of a music sample entitled “American Heart.” The plaintiff says that the sound…

Pirate party MEP publishes her paper on copyright review for the European Parliament
Copyright / February 2015
EU
Germany

COPYRIGHT All Areas   Julia Reda, a Pirate Party MEP from Germany,  has published a draft report looking at some key copyright topics across the European Union with a view to influencing the next raft of EU copyright proposals, expected to come from the European Commissioner For Digital Economy And Society early next year. Reda, as ‘Rapporteur’ presents a report that specifically considers how the 2001 European copyright directive was implemented in different EU states, and concludes that there remains too much variation in copyright rules across the Union, which is counter-productive in the age of cross-border digital content consumption. Launching her report, Reda said: “The EU copyright directive was written in 2001, in a time before YouTube or Facebook. Although it was meant to adapt copyright to the digital age, in reality it is blocking the exchange of knowledge and culture across borders today. We need a common European copyright that safeguards fundamental rights and makes it easier to offer innovative online services in the entire European Union”.  Reda also revealed the rather long list of content companies, collecting societies and related organisations openly lobbying her once she began work on this paper. The report is careful to begin…

New collection society alliance to be investigated by EU
Competition , Music Publishing / February 2015
EU
Germany
Sweden
UK

COMPETITION Music publishing   The European Commission has announced that it has opened an “in-depth investigation” into the planned joint venture between three of Europe’s biggest song-right collecting societies, Germany’s GEMA, Sweden’s STIM and the UK’s PRS For Music. The three societies announced their alliance last June, expanding on an existing partnership between PRS and STIM built around the International Copyright Enterprise (ICE). The rights organisations, which each represent a large collective of songwriters and publishers, said in a statement: “The hub aims to create easier access for digital music services to clear music rights, and faster and more precise payments of royalties to rights holders. PRS for Music, STIM, and GEMA had planned to begin launching services from the hub in early 2015, subject to competition clearance. Notwithstanding this delay, the partners remain committed to bringing their new service offerings to the market as soon as possible, once the approval of the European Commission has been obtained.” Adding “The collective rights management organisations behind the venture are confident that their vision for a new licensing and processing hub will benefit the market and look forward to providing the European Commission with further analysis and market data” and “The hub is set…

eBay judgment forces a Waken ticket rethink
Live Events / November 2014
Germany

TICKETING Live events sector   A decision in a dispute between eBay and German soccer team over the re-sale of personalised tickets which was favourable to the online retailer has prompted the organisers of Germany’s Wacken Open Air heavy metal festival to think again about personalising their tickets in 2015. Waken also had a trial pending with eBay over the re-sale of their own tickets, currently personalised, Lamenting a set back in the fight against ticket touts, Thomas Jensen from W:O:A promoters ICS explained that the same judge was hearing the W:O:A case – and the judge has previously decided  held that platforms such as eBay do not have to delete offers of the sale of personalised tickets from their sites.  Earlier this year secondary ticketing site Seatwave agreed with German promoters association BDV to remove personalised tickets from six Robbie Williams concerts from it’s site. Nick Huper from W:O:A explained that “There´s no law in Germany regarding personalized tickets, reselling personalized tickets, offering personalized tickets or jurisdiction”. W:O:A obtained an interim order against eBay at the District Court in Hamburg to delete all offers regarding W:O:A tickets in 2014 on the basis that personalized tickets aren´t a tradeable good…

Lieberberg prevails in Rock am Ring name dispute
Live Events , Trade Mark / October 2014
Germany

TRADE MARK Live events sector   Markek Lieberberg’s MLK has prevailed in his battle with Capricorn Automotive, new owners of the Nürburgring, home of the Rock am Ring festival site since 1985,  overturning the decision of the Koblenz District Court (Landgericht Koblenz) which had said that neither MLK or Capricorn had the right to use the name ‘Rock Am Ring’ without the permission of the other. The appellate court agreed with MLK that MLK and MLK alone owned the name. Ahead of the court hearings, Lieberberg told Der Spiegel that “Rock am Ring is a vision that I had 30 years ago. It’s an idea that I realized – at the Nürburgring and without help from third parties. We invented a brand. We’ve achieved cult status for it. And the brand will remain. It’s not at all tied to the Nürburgring itself.”  Having seen two  new affidavits of the ex – managing director of the Nürburgring GmbH , Friedhelm Demandt , and the concert organizer Matthias Hoffmann  (supported by a statement from music promoter Marcel Avram)  the court (Oberlandesgericht Koblenz ) agreed. The Festival has now relocated to Monchengladbach. Capricorn has left a further appeal a possibility,  with a spokesperson…

Massive illegal CD pressing plant shut down in Germany
Copyright , Music Publishing / August 2014
Germany

COPYRIGHT Recorded music sector   What is possibly the largest black market CD pressing plant in Europe has been raided in Germany, with investigators finding a large-scale CD, DVD and vinyl pressing operation in the main underground premises and “significant numbers” of pirated discs. Several properties were raided in both Aschaffenburg in Bavaria and Hessen after preliminary investigations led by anti-piracy organisation proMedia at the instigation of the German record industry trade group BVMI, with support from global trade body IFPI. A state prosecutor from the Economic Crime Department in the city of Würzburg is now investigating at least one individual in relation to the mass production of pirated CDs, DVDs and records. BVMI CEO Dr Florian Drücke said: “With a market share of about 70%, there is still a high demand for CDs in Germany – this is evident not only in the legitimate business, but unfortunately also on the illegal market”. He went on: “Thanks to the excellent preparatory work and above all the precise work of the prosecutor and police, this raid has enabled us to pull the plug on the largest-ever undercover pressing plant for music in Europe. The equipment found here demonstrates once again that this…

Venue changes leads to Rock am Ring brand battle
Live Events , Trade Mark / August 2014
Germany

TRADE MARK Live events sector   One of the main impacts of the fall out between German promoters MLK and the new owners of Nurburgring circuit, Capricorn, is that neither has the right to use the name ‘Rock Am Ring’ without the permission of the other. As this year’s Rock am Ring dawned, news broke that new owners Capricorn, who brought the venue from administrators, had broken off talks with MLK for future events. MLK boss Marek Lieberberg had said that Capricorn were asking for a higher profit participation that he felt justified.  Subsequently entered into a new agreement with DEAG to promote a festival show at the legendary racing circuit to be called Grune Holle (Green Hell) Rockfestival am Nürburgring.  After Leiberberg made a number of comments regarding Rock am Ring and the fact he had invented the name and it was not bound to the Nurburgring, the Administrators had filed legal action seeking injunctive relief against any use of the name saying they co-owned it. The District Court in Koblenz agreed that the name was under ‘common ownership’ and that neither party could proceed with an event named Rock am Ring without the agreement of the other. It…

The IFPI Digital Music Report 2014 shows a changing landscape for the recorded music sector
Copyright , Music Publishing / April 2014
EU
Germany
Italy
UK
USA

COPYRIGHT Recorded music   The IFPI have published their downloadable Digital Music Report 2014 – who shows that music fans’ growing appetite for subscription and streaming services helped drive trade revenue growth in most major music markets in 2013, with overall digital revenues growing 4.3 per cent and Europe’s music market expanding for the first time in more than a decade. Subscription services’ revenues were up 51 per cent in 2013, and it is estimated that more than 28 million people worldwide now pay for a music subscription, up from 20 million in 2012 and just eight million in 2010. That said, on a negative note, in the world’s second biggest recorded music market, Japan, a sharp drop in sales meant that overall global industry revenues declined by 3.9 per cent. Global revenue excluding Japan fell by 0.1 per cent. Physical format sales still account for a major proportion of industry revenues in many major markets.  They account for more than half (51.4%) of all global revenues, compared to 56 per cent in 2012.  Although global physical sales value declined by 11.7 per cent in 2013, major markets including Germany, Italy, the UK and the US saw a slow-down in the rate of physical decline.  France’s…

German Promoters Force Resale Take Down
Contract , Live Events / March 2014
Germany
UK

CONTRACT Live events industry   Secondary ticketing giant Seatwave has removed all tickets for the six upcoming Robbie Williams concerts in Germany after a successful legal challenge by the German Federal Association of Concert Organisers (BDV). BDV is vociferously fighting a battle against ticket resale platforms in Germany and has already obtained mandatory injunctions against other online exchanges, including the popular website Viagogo. The tickets that were removed were all personalised with the holders name and the concert was promoted by MCT, a staunch opponent of ticket abuse, who had previously taken action in 2011 after personalised tickets for three German Take That shows were offered for re-sale. Marek Lieberberg Konzertagentur have also brought actions: several years ago they obtained an injunction preventing ticket site Ventic re-selling large numbers of Depche Mode tickets and in another case took action to prevent SeatWave selling tickets for the Rock am Ring festival. Johannes Ulbricht, legal advisor for the BDV, insists the association will continue to take action against all unauthorised ticket trading in the country, to protect event visitors and ensure that the prohibition of resale is respected. ”We are moving closer, step by step, to our goal of returning control of…

Ten charged over Love Parade tragedy
Health & Safety , Live Events / March 2014
Germany

HEALTH AND SAFETY Live events sector   Ten people have been charged under German law with negligent manslaughter in relation to the to the fatal stampede that occurred at Germany’s Love Parade festival in 2010 which left 21 people dead and over five hundred more injured. The Festival, which began in 1989 as a Berlin-based free event, began travelling to different German cities each year in 2007, and was taking place in Duisburg in 2010. The event was always well attended, and though turnouts had fallen in the years prior to 2010, it was estimated by investigators that almost half a million people had attended that year on the site on a former freight rail yard. The site’s capacity, however, was 250,000 and despite the large number of people attending, crowds entering were funnelled through a single underpass, which quickly became crowded on the Saturday morning of the event there was a surge in the crowd, which caused panic in the tunnel followed by a stampede. Six of the event’s organisers and four city workers have been charged with negligent manslaughter and bodily harm. If convicted, they face up to five years in prison each. All deny any wrongdoing. The…

Article: Art vs Personality right: German rapper Bushido causing “stress for no reason”?
Artists , Censorship / August 2013
Germany

CENSORSHIP / PERSONALITY Artistes By Birgit Clark From Germany comes the news that Berlin’s mayor Klaus Wowereit has filed legal action against a new song by German rapper Bushido: “Stress ohne Grund” (“Stress for no Reason”).  The news has prompted German media to excitedly discuss the legal conflict between one person’s personality right and another person’s right of free expression and/or freedom of art.  Today, the debate heated up further after the German authorities for the protection of youth have ruled that Bushido’s song (together with the album that contains it) is to be banned for minors. In his latest offering enfant terrible Bushido is rapping about “coming to a party and causing stress for no reason.”  However, the song also includes lyrics that are directly aimed at public figures and which can very easily, indeed only, be interpreted as a call for violence.  About Claudia Roth, the head of the German Green Part, Bushido raps: “I’ll shoot at Claudia Roth and she willl be full of holes like a golf course”.  About Mr Wowereit, who is openly gay, he includes rather crude, homophobic comments relating to his sexualty.  Mr Wowereit, who is known to be tolerant, clearly did not…

PRS for Music, STIM and GEMA to collaborate on new venture
Copyright , Music Publishing / July 2013
Germany
Sweden
UK

COPYRIGHT Music publishing   PRS for Music (UK), STIM (Sweden) and GEMA (Germany) have announced a major collaboration that the three music collection societies say will simplify both national and pan-European music rights licensing and processing. As part of the initiative, GEMA will become a shareholder and customer in International Copyright Enterprise AB (ICE), the company founded by PRS for Music and STIM in 2007.  ICE will extend its current copyright repertoire management services to include the processing of transactional licences to Digital Music Services, both for its shareholder societies and for other society customers. In due course ICE will also create a state of the art audio visual database for film and television music processing. PRS for Music, STIM and GEMA will in parallel establish a licensing hub that will combine the national repertoires of all three collecting societies as well as providing licensing services to other holders of multi-territorial European online rights, both publishers and societies. The combined repertoire available to license through the new hub will be amongst the largest of its kind in Europe, providing access to millions of works for download, subscription and streaming services. Slated for delivery in 2014, the proposed joint venture will use the copyright and…

Berlin and London will be home to the Global Repertoire Database
Copyright , Music Publishing / June 2013
Germany
UK

COPYRIGHT Music Publishing   The Global Repertoire Database (GRD) – the project that aims to catalogue the world’s music – has announced that it will set up its global headquarters in London and will base its operations centre in Berlin. The London office, housing corporate functions and business development capabilities is scheduled to open later in 2013, and will work alongside the current London-based project team in the first instance. The Berlin operations centre will provide registrations and data processing facilities, and may provide a template for further operations centres to support the global operation as it grows. When completed, the main aim will be to create a new and more effective global infrastructure for music rights management, leading to an improved path to music licensing for digital and other music services, and to efficiency benefits for the whole music ecosystem saving extensive costs currently lost to duplication in data processing. Alfons Karabuda, President of ECSA, the European Composer & Songwriter Alliance, said, ‘We are happy to have a home for the Global Repertoire Database. These two great cities of Berlin and London with their proud heritage and strong support for authors’ rights and for copyright will serve our needs…

German DJ’s in dispute with GEMA
Germany

COPYRIGHT Music publishing, live events sector   A dispute between the German DJ fraternity and Germany’s music publishing rights collecting society GEMA resulted in two protests outside the rights organisation’s offices in Dortmund and Munichin Aprilk, the latter also supported by the German Pirate Party. The DJs are protesting a recently announced new licence that GEMA has introduced which means that DJs who play their sets off laptops or similar devices must pay a royalty into the collecting organisation, seemingly to cover the ‘mechanical copy’ said DJs are making of any songs they rip from CD or transfer from another device to the computer they perform with. While in Germany such copies are exempt from royalty payments if for personal use, the minute said copied songs are played in public that exemption does not apply, says the rights body. The cost will be 13 cents for each copied track, although bulk track options are also available. Billboard calculated that an average DJ with, say, 15,000 tracks on his or her laptop would face an annual licence fee of 1500 euros. The DJs have also pointed out that GEMA already receives royalties from club promoters for the performing rights that exist…

Germany passes new ‘watered down’ copyright law
Copyright , Internet / March 2013
Germany

COPYRIGHT Internet   German lawmakers approved legislation on Friday that grants publishers the right to charge search engines and other online aggregators for reproducing their content but continues to allow the free use of text in links and brief summaries. In it’s original form, the law was seen as a clear attempt to force big Internet companies like Google to share some of the billions of euros they earn from the sale of advertising placed alongside the news that Google links to. But a last-minute change, proposed last week by the Free Democratic Party, the junior partner in the German government, allowed for the use of “individual words or the smallest excerpts of text” free, meaning that only those companies who reproduce full texts for commercial use will be required to compensate the news publishers. Google welcomed the fact that only a weakened version had passed but made clear its opposition to any form of legislation and the Financial Time headline perhaps says it all – ‘Google wins Germany copyright battle’. http://www.nytimes.com/2013/03/02/technology/german-copyright-law-targets-google-links.html?_r=0

GEMA and YouTube reach German impasse
Copyright , Internet , Music Publishing / February 2013
Germany

COPYRIGHT Internet, music publishing   Germany’s music collection society GEMA has said that negotiations with YouTube have broken down, and that the society wants to haul the internet video platform before the arbitration board at the German Patent and Trademark Office. GEMA said that it is appealing to the Board over the alleged unlicensed use of 1,000 music tracks from it’s catalogue, and is calling on the Board to decide independently whether its demand for €1.6 million compensation is appropriate. In addition, GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany which blames GEMA for the impasse . In November last year, Harald Heker, the head of GEMA,  accused YouTube of deliberately misleading German users of the web service with the notice. The last agreement between GEMA and Youtube expired in March 2009. In a statement GEMA said  “Up till January 2013, despite efforts on both sides, no agreement could be found on the question of the service’s copyright responsibility for the content put online, nor on the amount of remuneration,” adding that on behalf of its music publisher and songwriter members “Therefore GEMA is now taking the first measures to secure appropriate compensation for the copyright holders.”…

Kraftwerk’s 12-Year lawsuit over a two second sample comes to a bizarre end (nearly)
Artists , Copyright , Music Publishing / January 2013
Germany

COPYRIGHT Music publishing, artistes   Techdirt reports on the rather confusing state of German copyright law related to music sampling, beginning the tale back in 1977 when Kraftwerk released a track called “Metall auf Metall“ that contained a “rather distinctive bit of percussion that ran the length of the track”. Twenty years later, a German rapper called Sabrina Setlur recorded a single called “Nur Mir,” which featured a two-second loop of Kraftwerk’s percussion. In 2000, Kraftwerk took the track’s producers Pelham and Haas to Hamburg’s lower civil court for using an uncleared sample and the court agreed, finding  that re-purposing even the smallest sample of a song counted as copyright infringement. The court also issued an injunction against Pelham and Haas forbidding further distribution of Nur Mir. It’s always worth remembering that in most sampling cases there will sampling of the ‘song’  – the melody, rhythm and lyrics’ and sampling of the actual sound recording itself. For the next eight years Techdirt say “the case bounced between courts before landing in Germany’s highest civil court”,  The Bundesgerichtshof (BGH), which in 2008 ruled against Kraftwerk, stating that “sampling musical notes does not, in principle, violate copyright” but conversely stating “that sampling a melody does…

YouTube v GEMA goes to appeal
Germany
USA

COPYRIGHT Internet, music publishing Following the German court ruling last month in the long running dispute between YouTube and Germany’s music rights collecting society GEMA, both parties have appealed the decision. YouTube was held liable under the principle of Storerhaftung (disturbance liability – secondary liability for contributing to someone else’s breach of third party rights and was issued with a permanent injunction to take down a number of songs GEMA administers and ensure those songs do not appear on YouTube in the future Whilst YouTube seems more than safe under the US’s Digital Millennium Copyright Act and has a ‘takedown’ system for removing unlicensed content, the German courts have taken a firmer approach and seem to want YouTube to be more proactive in removing infringing material. YouTube will argue that their takedown system is already sophisticated and available to all content owners and that more onerous filtering and removal obligations would not only damage the Google platform, but also other websites and services: YouTube spokesperson Mounira Latrache said “The ruling to implement [more] filtering would be damaging for innovation and freedom of expression online”. GEMA has also filed papers seeking further clarification of  the rights of its members to protect their content online. It…

An IP address is not a person
Copyright , Internet / June 2012
Finland
Germany
USA

COPYRIGHT Internet, Technology In the USA, Judge Magistrate Gary Brown (US District Court, Eastern District of New York) has gone to great lengths to explain why an IP address is not the same as a person and cannot be used to bring claims against alleged copyright infringers. In the USA Mass-BitTorrent lawsuits have been “dragging on for more than two years” and involve more than a quarter million potential illegal downloaders. The copyright owners who start these cases generally provide just an IP-address as evidence of the infringement and as the identity of the ‘John Doe’ infringer. The court is then asked to grant a subpoena, allowing the claimant to require an Internet Service Provider for the personal details of the alleged offenders. Judge Brown is of the opinion this is a “waste of judicial resources” and that the argument that IP-addresses can identify the alleged infringers is very weak with Judge Brown saying “The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time” adding “An IP address provides only the location at…

German Pirate Party launch new agenda
Copyright / June 2012
Germany

COPYRIGHT All areas This from Monika Bruss writing on the 1709 Blog In recent weeks, copyright critics and author’s rights aficionados in Germany have been waging a war of words in a multitude of open letters), newspaper articles and at birthday brunches (or maybe that was just the birthday brunch I attended yesterday…). At the core of the debate is the political success of the Piratenparty (“Pirate Party”) that runs, inter alia, on the slogan of “de-criminalisation of non-commercial file sharing”. The Piratenpartei is keen to stress that they do not want to abolish copyright protection outright, but that they envisage a better deal for authors and users alike (at the expense of the much-loathed content industry). Others point out that “de-criminalisation” of file sharing amounts to much the same thing as the abolition of copyright. This morning, the Piratenpartei published what they deem the ten most important issues that should be addressed in reforming the current copyright law. As it is only available in German, I have translated (and somewhat summarised) them below: (i)         The term of (copyright) protection shall be shortened to 10 years post mortem auctoris. Among other things, this would alleviate the orphan works problem. (ii)        …

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

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
Germany

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
Germany

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
Germany

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
Germany

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
Germany

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
Germany

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…