Zeta Jones and Douglas Win Limited Damages
Artists , Consumers , Image Rights , Privacy / December 2003

PRIVACY, IMAGE RIGHTS, COMMERCIAL CONFIDENCE Artists The photographs snatched by papparatzi at Catherine Zeta-Jones and Michael Douglas’ wedding have cost Hello! Magazine more than £1 million in damages. In the High Court, Mr Justice Lindsay awarded a total of £14,600 damages to the couple and also awarded OK! Magazine £1,033,156 in damages for commercial damage to its exclusive coverage of the New York wedding in November 2000. See Law Updates May 2003 COMMENT : The judgement in this case sees only limited damages awarded to the couple : a nominal £50 to each of the claimants for data protection infringements and £3,750 each for the ‘distress’. The substantial award of damages is to OK magazine who lost their right to exclusive pictures from the celebrity wedding and Mr Justice Lindsey accepted that the magazine had lost substantial sales. To take this further, this ‘commercial confidence’ must be based on the licence of certain rights Catherine Zeta Jones and Michael Douglas has – and it is suggested that this is not only to the ‘event’ itself, the wedding, but to their own image. Most recently F1 driver Eddie Irving won a case against TalkRadio after they used the driver’s image in an…

R v Clark (2003) Re-broadcasting Foreign Television Signals
Copyright / December 2003

COPYRIGHT Televison, Radio Pubs and clubs which illegally screen live football matches from the English Premiership league in England face prosecution as the Federation Against Copyright Theft (FACT) which acts for Premier League, which owns the copyright to the matches, takes action against infringers. Live football is banned in the UK on Saturday afternoons to promote match attendance and income from TV rights. In R v White, Hertfordshire bar manager William Clark was found guilty of copyright infringement and fined £500 and £720 costs. The maximum fine in a magistrates court is £5,000 for this offence. Foreign signals (which of course can be legally transmitted in the countries to which they are licensed) but which can be downlinked in the UK include Canal + in Holland and Poland and Sport TV in Portugal. All show live Premiership matches, although without English commentary. The Evening Standard, 4 November 2003

Piracy News From Around The World

COPYRIGHT Record Labels, Music Publishing, Internet A recent report published by NPD in the US shows that the threat of legal action against individuals who download copyrighted songs and swap files has led to a reduction in the number of infringements. The number of US households acquiring digital music via p2p file-sharing services declined by 11% from August to September and the total number of music files downloaded decreased 9%, says the company. However, the report also shows that the public image of record labels has suffered badly. In Malaysia, the record industry has resorted to ‘digital watermarking’ preview CDs sent to journalists after numerous album titles were found on the Internet before release but after review copies had been sent to the press. The watermarking is a series of invisible and unique digital codes embedded onto the CD which allows investigators to trace the source of the download. However, and in contrast to the problems reported by the record industry, US collection society Broadcast Music Incorporated (BMI) which represents music publishers and artists such as Britney Spears, Sheryl Crow, Pink and Eminen has announced increased annual revenues for last year, pre record industry actions. The performing right organisation distributed…

Suspended prison sentence for contempt of court for repeat copyright infringer: PPL v Tierney

COPYRIGHT Record Labels, Music Publishers, Live Concert Regular ‘users’ of music who either refuse to pay licence fees at all or who do so only under threat of legal proceedings are the bane of music collecting societies. The threat of legal proceedings does not always dissuade a repeat infringer. Furthermore, some infringers are prepared to ignore court orders or undertakings which they have given to the court. In this case the defendant Mr Tierney, the proprietor of an establishment in Guildford, breached a court order by failing to pay licence fees to Phonographic Performance Ltd in relation to certain sound recordings played at his establishment. He had also failed to comply with undertakings given to the court on a number of occasions. Failure to comply with a court order is a contempt of court which is punishable by a fine or an order for committal to prison. PPL applied for an order to commit Mr Tierney for contempt of court in respect of his failure to comply with the court order. It had reportedly made seven previous applications of this nature against Mr Tierney. PPL succeeded in its application. Mr Tierney had been warned of the consequences of further breaches…

Assertion of character rights in UK advertisement
Artists , Image Rights / November 2003

CHARACTER (IMAGE) RIGHTS Artists It seems that one of the UK most successful advertisements ever will feature in a High Court action. The advert features two ‘twin’ runners with wild hair and handlebar moustaches in 70s style striped singlets and cut-away shorts running across the country promoting the new directory enquiries number 118118 owned by US firm The Number. 118118 has captured 50% of the directory market from British Telecommunications. The runners have sparked of huge popular support and widespread ‘cult’ appreciation. But David Bedford, the British 10,000 world record holder in 1973, claims the runners are based on his image. Mr Bedford’s solicitors have written to The Number claiming the advertising is based on Mr Bedford’s image, in particular his 1973 image, which featured wild hair, moustache, striped singlet and cut away shorts. The Number have rejected the claim as ‘ridiculous’ and claim the 118118 runner image is an ‘aggregate’ on 70’s runners and that most runners of that era sported wild hair and facial hair. They say that the only runner actually looked at was a friend of Mr Bedford’s from the 70s, Steve Prefontaine who died in a car crash in 1975. Mr Bedford, 53, is the…

Granada and Carlton Free to merge
Competition / November 2003

COMPETITION LAW Television In a move which surprised many industry commentators, ITV giants Granada and Carlton are to merge to form a single ITV in England and Wales. The companies were given outline permission by the Trade and Industry Secretary, Patricia Hewitt, with only limited restrictions. The Competition Commission had advised the minister that the merger would not breach competition laws provided there are conditions attached to the way advertising is sold. At one point it seemed likely that the merged group would not be able to sell its own advertising as the new entity would control 52% of all UK television advertising as the new entity would control 52% of all UK television advertising (worth more than £3 billion). The Competition Commission have recommended a series of rules to prevent market abuse. As well as restrictions on advertising sales, the merged ITV group must agree to a package of safeguards to protect the protect the remaining three independent channel 3 broadcasters – The Scottish Media Group (Scotland), Ulster (Northern Ireland) and Channel TV (Channel Islands). In response ITV’s main commercial rivals in the UK (Channel 4, Five, BSkyB and Flextech’s ‘UK’ channels) are considering a joint advertising sales house….

Insurance Bottomley -v- Secretary & Members of Todmorden Cricket Club and Others
Live Events / November 2003

EVENT SAFETY LAW Live Concert Industry A seemingly uninteresting case involving a cricket club could have important ramificatons for the live event industry in the UK. In the Court of Appeal decision a small cricket club which engaged an independent contractor to put on a pyrotechnics (fireworks) display at the ground was held to owe a duty to ensure that the contractor had adequate public liability insurance. It made no difference that the contractors were paid a fee. Lord Justice Brookes said there might be many occasions when an occupier could be liable in negligence in respect of activities permitted or encouraged on his land. Here, the club allowed a dangerous event to take place on its land with no written safety plan and no insurance and the occupier could not show that they had taken reasonable care to select a competent contractor. The club was therefore liable in damages for injuries sustained by the claimant who had been employed by the contractor to help with the event. If the occupier of the premises could show that they had taken reasonable care to select a competent and safe contractor then they would normally escape liability. In those circumstances an injured…

Copyright , Internet , Record Labels / October 2003

COPYRIGHT Record Labels, Internet, Film & Television In a case reminiscent of the 1984 ‘Sony Betamax’ case, the Motion Picture Association of America has launched an action in the High Court of England & Wales against 321 Studios which produces software which allows the copying of DVDs by consumers. The MPAA has already filed an action in the US (December 2002) seeking to prohibit the sale of 321 Studios’ software titles DVD X Copy and DVD Copy Plus. It also wants any profits from sales as recovery of damages. 321 Studios says it has sold a total of 150,000 copies of the two software titles. 321 Studios insists that its software does not violate the Digital Millennium Copyright Act in the US which outlaws providing information or tools to circumvent copy-control technology. At the same time, the movie studios are using the Digital Millenium Copyright Act against a software package produced by Tritton Technologies. The studios have filed a suit in a Manhattan court to block the sale of “DVD CopyWare” that allows DVD owners to backup their DVD collection to DVD-R media. Also named in the suit are three website hosts selling the software. Paramount and Twentieth Century Fox…

Internet , Regulation / September 2003

PRESS REGULATION Television, Radio, Internet, Print The UK Government is to review the law after convicted murderer Tony Martin sold his story to the Daily Mirror for £125,000. Martin was convicted of murder after shooting a 16 year old burglar in the back and wounding his accomplice as they tried to burgle his remote and rundown farm, Bleak House. Martin’s original sentence was reduced from life to five years on the grounds of diminished responsibility and he served three years of this. Martin also signed an exclusive deal with the ITV programme Tonight With Trevor MacDonald, also for a fee, to give his first interview on UK television. At one point the murdered burglar’s accomplice was going to sue Martin for his own injuries on legal aid. The accomplice, Brendan Fearon, has just been released from prison on drugs related offences. The Press Complaints Commission Code states that: Payments or offers of payments for stories, pictures or information must not be made directly or through agents of convicted or confessed criminals ÿ…. except where the material concerned ought to be published in the public interest and payment is necessary. The public interest includes (i) detecting or exposing crime or serious misdemeanour…

R -v- Hunt Sentencing for lower level piracy
Copyright , Record Labels / September 2003

COPYRIGHT Record Labels A 42 year old plumber who turned his hand to selling counterfeit and bootleg CDs from a stall at a Record Fair was sentenced to a 120 hours community penalty and ordered to pay £250.00 costs after Trading Standards Officers seized pirated and bootlegged CDs worth approximately £9,000 in a raid organised by the British Phonographic Industry (BPI) and EMI Records. Hunt admitted 5 offences under the Copyright Designs & Patents Act 1988 and the Trade Marks Act 1994. The 900 CDs and 300 videos found at the Fair in Norwich included bootleg copies of recordings by Bob Dylan, U2 and Elvis.

Copyright , Internet , Record Labels / September 2003

COPYRIGHT Record labels, Telecommunications, Internet  Sales of downloadable ringtones for mobile phones look likely to outstrip CD singles in the UK in 2004. The ringtone market, estimated to be worth more than £70 million in the UK, is increasing rapidly. Sale of ringtones in 2002 were £40 million. CD singles are heading the other way, with sales currently at about ÿ£150 million (2002) but with an estimated 37% drop in 2003 on last year’s figures. August ’03 favourites include Flying on the Wings Of Love by XTN and Crazy in Love by Beyonce & Jay-Z. COMMENT : With ringtones costing between £1.50 and £3 to download in the UK, the mobile phone operators, labels and music publishers have found a lucrative new maket. Another new growth area is the ‘spoken word’ – a voice rather than a ringtone which announces an incoming call or text. This might prove a new area of legal dispute – where imitators provide the voice of well known celebritiy for a download – for example, as Sir Michael Caine or Arnie as the Terminator alongside that star’s well known catch phrase or parody of that phrase. It will be interesting to see if artists seek to assert character rights over…

Artists , Record Labels , Trade Mark / August 2003

TRADE MARK Artists, Record Labels Boy band BLUE have resolved their dispute with Scottish rock band BLUE over the use of the name with what can be best described as a ‘Mexican stand-off’ where both bands will continue using the same name. As part of the settlement, costs were awarded against the Scottish band but will not be applied for by the ‘New’ Blue or their label (EMI/Virgin) – provided the ‘Old’ Blue do not bring any trade mark application or other formalisation over use of the name. Formed in 1973, Old Blue had argued that their career was being hampered by the new boy band using the same name as them. The Old Blue last had a hit in 1977 when their single Gonna Capture Your Heart got to number 18 in the UK charts. The band have released sixteen singles and seven albums and are primarily a recording band selling CDs by mail order and the Internet. New Blue, formed in 2000, have had seven top 10 hits and three number 1 records in the UK charts in the last three years. Both bands had worked with rock legend Sir Elton John, who had been expected to give evidence. Mr…


COPYRIGHT Artists, Record Labels Football Association Premier League Ltd and others -v- Panini UK Ltd The Court of Appeal has held that the badges and crests of individual English football clubs were the artistic works of the clubs and were entitled to copyright protection. The unlicensed inclusion of these badges, crests and emblems on the stickers of Panini’s Football 2003 Sticker Collection was not an ‘incidental inclusion’ in an artistic work within the meaning of section 3(1) of the Copyright Designs and Patents Act 1988 and therefore an injunction was granted to restrain the defendant distributing those stickers and albums. Lord Justice Chadwick held that where an artistic work in which copyright subsisted appeared in a photograph – because it was part of the setting in which the photographer found his subject, then it could be properly said to be an integral part of the photograph. But to qualify as an exception to infringement, the inclusion of the work must be incidental and on the facts of the case, clearly the inclusion of the badges, crests and emblems was not incidental as it was the basic object of the defendant’s production of stickers and albums. Source: The Times, Law Report, 17 July 2003 See http://www.timesonline.co.uk/legalarchive…

Artists , Privacy / August 2003

PRIVACY LAW Artists The House of Commons Culture, Media and Sports Committee has published its long-awaited report on Privacy and Media Intrusion. In it the Committee made a series of recommendations. The one which has gathered the most publicity is that the Government “bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives.” As the Committee rightly says: “This is necessary fully to satisfy the obligations upon the UK under the European Convention on Human Rights.” This was illustrated recently by the Peck case. There is already by means of the Human Rights Act a legislative provision providing some protection for individuals against intrusions into the private lives of individuals. This is by the importation (albeit obliquely) of Article 8 of the European Convention on Human Rights into our law. Here are some of the other recommendations made by the Committee. The Committee recommended that the PCC “should consider establishing a dedicated pre-publication team to handle enquiries about [prior restraint] issues from the public and liaison with the relevant editor on the matters raised.” This is because it is at present only by…


CONTRACT LAW Record Labels, Music Publishers, Artists Confetti Records & Others -v- Warner Music UK Ltd This UK case involved the purported licence of a sample of the track Burnin by the claimants to the defendants. The first claimant (Confetti) had been negotiating with the defendants about use of the track and had issued a ‘subject to contract’ deal memorandum which both parties signed. The first claimant then issued an invoice to the defendant and sent a recording of the track. Mr Justice Lewison held that ‘subject to contract’ had the same meaning in the music industry as other businesses and the document was not binding as such. It was for the defendant to prove otherwise. As the defendant had failed to do this, the deal memorandum was not binding. But Mr Justice Lewison went on to decide that the subsequent sending of an invoice with the track constituted an offer which was subsequently accepted by the defendant’s conduct in making use of the track and hence a contract had come into existence so there could be no copyright infringement as permission to use was granted. The third claimant, Andrew Alcee, brought a claim under Section 80 of the Copyright Designs and Patents…

Licensing , Live Events / July 2003

LICENSING Live Event Industry The Carling Weekend Leeds Festival was successful in its applications for a public entertainment licence at both Temple Newsam and Bramham Park after strong objections from local residents at the Festival’s 2002 site, Temple Newsam. Last year’s Festival ended in riots and arson and local residents had described the Festival’s history as ‘4 years of hell’. But the Mean Fiddler Organisation has decided to go ahead with the Bramham Park site after the local authority recognised the cultural and economic benefits the festival brought to the local area. See: www.nme.com In a separate matter reported in the Stage (May 22, 2003) it was announced that the British Actors Equity Association (Equity), the trade union which represents artists and performers, had brought an emergency motion to its annual conference after insurers announced that they were no longer able to secure public liability cover for hypnotists. As all performers using hypnotism must have public liability insurance when applying for a licence from the relevant UK local authority the current situation inevitably means that no licences can be granted.


DEFAMATION Artists, Record Labels, Music Publishers, Internet In December 2002 the Australian decision of Gutnick v Dow Jones established the principle that where a newspaper or magazine was published on the internet, a claimant could bring an action in ANY jurisdiction where that magazine could be received, in this case in the state of Victoria in Australia even though the newspaper was published in the US. In this case (with the same defendant) Mr Justice Eady was presented with the following case. On 31 March 2002 Harrods issued a spoof press release proposing a “first-come-first-served share option offer” by way of an April Fool’s joke. The Wall Street Journal picked up the press release with a story headed “The Enron of Britain?” The article suggested that “If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.” The evidence before the court was that only ten copies of the Wall Street Journal are distributed in this country from the United States. There was evidence of only a very small number of hits on the article as published on the web. By contrast, the Wall Street Journal has a national distribution within the United…

Artists , Privacy / July 2003

PRIVACY Artists UK DJ Sara Cox has been successful in an action against Sunday newspaper The People after the newspaper published nude shots of Cox and boyfriend John Carter on their honeymoon whilst relaxing on a private beach. Cox had originally complained to the UK’s Press Complaints Commission, the self-regulatory body which issues and adjudicates on the PCC’s code of conduct. The photographs which were in clear breach of the code resulted in a 63 word apology from the newspaper. Cox, unhappy with this result, brought an action in the High Court which resulted in a settlement awarding the DJ ÿ£50,000 as well as costs estimated at ÿ£200,000. See: The Guardian 9 June 2003. COMMENT : The result of this case is bad news for the Press Complaints Commission and bad news for self-regulation by the press in the UK. The Editor of the Sunday People sat on the PCC’s main committee as well as the code of conduct committee and the paper was clearly aware of the code. This case highlights the failures of the PCC and strengthens the case for more robust privacy laws in the UK. Recent cases (Naomi Campbell -v- Mirror Group Newspapers and Catherine Zeta Jones…


TRADE MARK Artists, Record Labels, Internet Associated Newspapers, owners of the Daily Mail, Mail on Sunday and Evening Standard suceeded in a High Court action to prevent rival publishing group Express Newspapers from calling their planned new evening newspaper theEvening Mail or the London Evening Mail. Mr Justic Laddie held that the the proposed title could confuse the general public into believing that the new paper came from the Daily Mail’s stable rather than from a different publishing group. COMMENT : In the United Kingdom trade names and brands are protected both under legislation as statutes (under theTrade Mark Act 1994, EC Directive 89/105) or under the common law doctrine of ‘passing of’. Trade Mark legislation allows for registration of distinctive recognisable marks with an initial protection for twenty years, in effect giving the owner of a registered mark an effective licence for use and exploitation for this period. Protection can now be extended by registering the mark as a Community Trade Mark. Passing off protects traders’ reputation, goodwill or products. No registration is needed but a brand or name must be in established use. It was held in Spalding -v- Grange (1915) that ”no person is entitled to represent his goods as…

Artists , Copyright , Trade Mark / June 2003

COPYRIGHT, TRADEMARK Artists, Merchandising The flamboyant British singer Lady Miss Kier believes a video game has stolen her image including her pink ponytailed hair, short skirt and knee-high boots and signature cry of “Ooh La La.” Miss Keir, who found fame with Deee-Lite, filed the suit in the Los Angeles Superior Court this week against the U.S. arm of video game publisher Sega, alleging the 2000 game “Space Channel 5” used her likeness for the ‘Ulala’ character without her permission and that the name of the character is based on Keir’s own signature ‘Oh La La’. Keir alleges that Sega approached her for permission but still used her image even after she declined to grant a licence to Sega . See http://www.forbes.com/technology/newswire/2003/04/30/rtr957273.html

Copyright / June 2003

COPYRIGHT Television, Radio The author Barbara Taylor Bradford has won an injuction in the Indian Supreme Court to prevent transmission of a 260-episode Bollywood serial ‘inspired’ by her best selling novel A Woman Of Substance. The novel tells of the heroine’s rise from an impoverished servant to become head of a business empire and the Bollywood serial Karishma – the Miracles Of Destiny charts a similar story. Both stories begin with the heroine recounting her adventures in old age. Taylor Bradford won an injunction at first instance in the Calcutta High Court, although this was overturned on appeal. However on the 12th May the injunction was confirmed in the Supreme Court – although broadcaster Saraha TV broadcast the first episode risking an action for contempt of court. (source: The Times, May 14th 2003). COMMENT : This case could have interesting ramifications in the debate on the protection of format rights. UK copyright law does not protect ideas, only the expression of ideas. It is sometimes very difficult to draw the line between what is an idea and what is the expression of an idea. In the English case of Rees -v- Melville (1911), it was held that the plot or storyline to a play could be protected but…

Trade Mark / May 2003

TRADE MARK Merchandising The Court of Appeal has published its decision in the case of Arsenal Football Club Plc -v- Reed substantially overturning the decision of Mr Justice Laddie in the High Court. The Court of Appeal applied the European Court of Justice’s decision that where a third party used in the course of a trade a sign that was identical to a validly registered trademark on goods which were identical to those for which the trademark was registered then the registered owner could prevent this third party use. Mr Justice Laddie had held that the mark ‘Arsenal’ was a badge of allegience rather than indicating the origin of the goods and as Mr Reed had made it clear his goods were not official Arsenal FC goods then he was not infringing the club’s trademark. But the Court of Appeal held that whilst the mark may well be a badge of allegience – that though would not prevent its use by a third party and thus jeopardise the function of a trademark, namely the ability to guarantee origin. The Court therefore held that the High Court should have followed the ECJ’s decision and given judgement for Arsenal. Whilst not strictly…

Trade Mark / May 2003

TRADE MARK Merchandising A Scottish Court has confirmed the approach of Mr Justice Laddie in Reed -v- Arsenal Football Club when it allowed a street trader to continue selling branded ‘Celtic’ and ‘Rangers’ associated football club goods. The defendant, Joseph Gallacher, could have faced up to 10 years in jail when he was charged with breaching the Trademarks Act 1994 by selling unlicensed merchandise. Sheriff Laura Duncan halted his trial and acquitted Gallacher, ruling he was not “infringing” by using the clubs’ logos on his gear. The Sheriff (Judge) followed the Arsenal case – where it was successfully argued that unlicensed use of the club’s crest was allowable because it was “a badge of allegiance” and not a deliberate trademark breach. Following the decision, a delighted Gallacher claimed it was “another victory for the man on the street”. He said: “I did not believe I was doing anything wrong and that has judged to have been the case. The crests are a badge of allegiance and the clubs are finding it hard to explain otherwise”. Gallacher had told the court that he sold the goods from the back of his van on match days at the Ibrox and Celtic Park…


COPYRIGHT Record Labels, Music Publishers, Merchandising CARLTON FILM DISTRIBUTORS -v- VCI & VDC As a result of a High Court decision last month companies pursuing royalty audit claims have acquired a new procedural weapon. It has now been established that in appropriate cases the court will order pressing plants to disclose their manufacturing records to an audit claimant prior to the commencement of any court proceedings. One of the most contentious areas in royalty audits is access to manufacturing records so audit claimants can compare numbers of units accounted with numbers of units actually manufactured. Companies being audited often will not, and sometimes cannot, provide manufacturing records. This leaves audit claimants in a difficult position. Should they pursue claims where they have reasonable suspicions but no hard evidence that all units manufactured have not been properly accounted? It is possible to obtain disclosure of documents from the potential defendant prior to commencing court action. But what if that company says it has no manufacturing records? This was the dilemma facing the claimant in Carlton Film Distributors -v- VCI and VDC. Carlton had entered into a licence agreement with VCI for the manufacture by VCI of videos. The licence agreement contained…

Artists , Privacy / May 2003

PRIVACY Artists In a 104 page High Court judgement, Mr Justice Lindsay ruled that Hello! magazine had breached commercial confidentiality by publishing photographs secretly taken of the Douglas/Zeta-Jones wedding, and that Hello! had breached the Press Complaint’s Commissions’ code of conduct – but that there had been no invasion of the couple’s privacy in law. The Judge held that the evidence that Hello! and OK had competed to win the right to cover the wedding was enough to demonstrate that commercial confidentiality should apply and that the couple were entitled to damages as a result of this. The judge commented that “I hold the Defendants to be liable…. under the law as to confidence. It will have been noted that an important step in my coming to that conclusion has been that, on balancing rights to confidence against freedom of express for the purpose of granting or withholding relief, I have been required by statute to pay, and have paid, regard to the Code of the Press Complaints Commission. The Hello! Defendants broke their own industry’s Code.” But Mr Justice Lindsay did not uphold the couple’s claim in privacy and indeed went some way to suggest the court would not…

Licensing , Live Events / May 2003

LICENCING Live Concert Industry The London Evening Standard reported (08/04/03) that the Astoria in Charing Cross Road faces a fight for its public entertainment licence after Westminster Council renewed efforts to remove the venue’s public entertainment licence. The venue has had a number of high profile problems and in the eight months between September 2001 and May 2002 the emergency services were called to the venue 152 times. In October 2001 there was a double shooting linked to rap band So Solid Crew at the Astoria. The Council initially refused the venue’s licence but the Astoria’s owners, the Mean Fiddler Group Plc, successfully appealed the decision in the Magistrate’s Court. Westminster Council have now lodged an appeal against the Magistrate’s decision asking the superior court to uphold the original decision to refuse the licence. The case will be heard before the Superior Court who will review the magistrate’s decision. COMMENT : Licensing law in the United Kingdom is currently under review by Parliament (see Law Updates March 2003 Musicians Union Spearheads Challenge to Proposed Licensing Legislation) and new provisions regulating the private security industry will soon be incorporated into UK law. The House of Lords have rejected parts of the proposed licensing…


COPYRIGHT Internet, Record Labels Easyinternetcafes have agreed to pay costs and damages totalling £210,000 to the British record industry as a result of the High Court judgement awarded against the internet café chain in January 2003 as a result of the chain’s activities in illegally downloading music and burning CDs for customers (see Law Updates February 2003). See http://media.guardian.co.uk/newmedia/story/0,7496,933184,00.html

Internet , Privacy / May 2003

PRIVACY Internet, Telecommunications The draft DTI (UK government’s Department of Trade & Industry) Regulations to implement the European Commission’s Privacy and Electronic Communications Directive were published on the 27th March 2003. The Privacy Directive aim is to ensure that the rules which currently apply to phone and fax services will be extended to email and SMS and that privacy will be respected when individuals use electronic networks and services. Key new features include the right of individuals to give consent (in the form of an opt in) prior to the sending of unsolicited commercial email and SMS messages. Cookies and similar software tracking devices will be subject to a requirement for greater transparency and anyone using them on a web site should provide information about them to subscribers or users and offer users the opportunity to refuse them. There are also stronger rights for individual subscribers who will be able to decide whether or not they want to be listed in subscriber directories. The full consultation document is available on the DTI web site at: www.dti.gov.uk/cii/regulatory/telecomms/telecommsregulations/comms_dpd.shtml For comment by Melissa Bailey, see www.simkins.com/archive/sim_archive.asp

Artists , Copyright , Record Labels / April 2003

COPYRIGHT Record Labels, Artists His Honour Judge Lowen, sitting in the Isleworth Crown Court on 12th March 2003, sentenced Yogesh Raizada to 3 years imprisonment and record fines of ,000 under a Confiscation Order. Raizada was charged and found guilty on eleven counts under the Trade Marks Act 1994 and a further two counts under the Video Recordings Act. The Court heard that Raizada had been subject to a number of raids carried out by the Police and Trading Standards Officer which resulted in the seizure of thousands of pirated music CDs, DVDs and video cassettes between 2000 and 2001. In a separate case, David Stanley was sentenced to 4 years and 5 months imprisonment at Maidstone Crown Court having been charged with conspiracy to defraud and attempting to pervert the course of justice. The Court heard that Stanley was ringleader of a gang which copied and sold illegal music product and computer software, primarily at computer fairs across the UK. At one fair in May 2001, CDs with a street value of ,000 were seized. Sentencing Stanley, His Honour Judge Croft said that “the loss to the industry was massive and incalcuable” and that Stanley had been in effect…

Legislation / April 2003

BROADCASTING Television, Radio The UK’s draft Communications Bill has now reached the House of Lords where peers are expected to table amendments to many of the provisions. The Bill is a massive piece of legislation reforming the regulation of telecommunications, broadcast television, radio and the newspapers. The Bill will also reform rules of ownership of the media as well as providing for a new regulatory infrastructure under the auspices of the ‘super-regulator’ – OFCOM. The Bill includes several controversial proposals including plans to open up ITV1 to foreign owners, allowing Independent Television News (ITN) to be owned by a single entity and provisions to regulate the BBC. The Bill also needs to include revisions to embrace four new EC directives for the telecommunications industry. See www.mediaguardian.co.uk

Copyright , Internet , Record Labels / April 2003

COPYRIGHT Internet, Record Labels The BPI (British Phonographic Industry) has today (March 27th) sent out a letter to every University in the United Kingdom warning them that they face criminal sanctions if they collude in the illegal downloading of music files. This action follows similar actions by record company associations in Australia and the USA, the latter resulting in in the US Navy Acadamy warning nearly 100 students about downloading music files illegally. See www.timesonline.co.uk/student University News and Views. COMMENT : The BPI’s action follows on from similar actions by the RIAA and other industry associations, targeting internet service providers (ISPs), telecommunication companies and cable companies. The leading case at the moment is the ‘Verizon’ case currently in the appeal courts in the USA (see Law Updates March 2003). The UK courts held in the BPI’s case against easyinternetcafes Ltd that providing and facilitating the downloading of illegally copied files was actionable and the first instance decision in the Verizon case and the decisions in the RIAA’s cases against Napster and Aimster clearly supports this position. However, the Verizon appeal will certainly be of interest and the Dutch decision in Buma/Stemra -v- KaZaA (see Law Updates December 2002) means that this issue…

Licensing , Live Events / April 2003

LICENSING Live Concert Industry Undercover licensing officers for Westminster Council in London have investigated and now succesfully prosecuted the Pathfinder Pubs, owner of the Pitcher & Piano chain of bars, for allowing customers to dance at bars which did not hold a public entertainment licence. The bars argued that customers were simply ‘moving rhythmically’ to the music. Horseferry Road Magistrates Court fined the chain 00 and required the chain to apply for two public entertainment licences.These will cost the chain 00 and the two bars in question will need 000 of works between them to qualify for the licences. See London Evening Standard 27 March 2003.


COPYRIGHT Record Labels, Music Publishers A folk musician says he is to take legal action against Rod Stewart over his contribution to the 1970s hit song “Maggie May”. Ray Jackson, a member of folk/rock band Lindisfarne, says he was paid just in 1971 for his contribution of a distinctive mandolin section in the recording. Mr Jackson believes he may have lost at least because he was not credited for the track’s distinctive “hook”. Mr Jackson is basing his claim on the Court of Appeal ruling that held that session musician Bobby Valentino should be recognised for his part in writing the distinctive violin riff on the Bluebells’ 1983 hit and subsequent 1993 number one hit “Young At Heart”. Stewart’s defence is that Jackson was engaged on a ‘work for hire’ basis and that all and any copyright which might have subsisted in the mandolin recording was assigned to Stewart absolutely and the was ‘full and final settlement’ for his services and any contribution. It is accepted that Mr Jackson had played on the song but not that he had any part in writing it. Stewart’s argument is that the recording and song were from the inception of their creation “the…

Artists , Defamation / March 2003

DEFAMATION Artists Guitar legend Bert Weedon has won damages from the BBC over a false claim that he “learned to play the guitar whilst a convict.” His appearance in the libel case was a first time in court for the 82-year-old despite allegations to the contrary in the Daily Mail where a radio preview wrongly included Bert with musicians who had spent spells in prison. The Radio Choice review for Jailhouse Rock incorrectly stated that “even gentle guitar guru Bert Weedon” is among the many popular music figures who has spent time in prison. Mr Weedon said: “A friend phoned me up and said ‘have you read the radio review in the Daily Mail?’. “I have never been in prison. I am known in show business as “Mr Clean”. I have never taken drugs, I have never drunk heavily and I have never been involved in any scandal.” The Daily Mail said the report was based on a BBC press release and the broadcasting company apologised for the “distress and embarrassment” caused. Mr Weedon’s solicitor, Simon Smith said: “It may not always be fashionable in the rock music world but my client is rightly proud of his unblemished past and does not…

Internet , Trade Mark / March 2003

TRADEMARK Internet, Merchandising A website name used by Campus Insurance Services diverted customers intending to buy policies from Endsleigh Insurance to Campus’s own sales pages. Campus registered the names www.ensleigh.com and www.ensleigh.co.uk hoping web users would misspell the word ‘Endsleigh’. It is believed that a large number of students did this and Campus have been ordered to produce details of the number of students diverted from their ‘Ensleigh’ pages to their main site who then bought home contents insurance. The Court held that Campus had infringed Endsleigh’s trademark in a deliberate attempt to fool customers into buying more expensive cover from Campus. Damages will be assessed at a later stage. See www.thetimesonline.co.uk/yourmoney

Copyright , Internet / March 2003

COPYRIGHT Internet Columnist John Naughton used this headline in his February 09 column in the UK’s Sunday Observer newspaper advancing the argument that in the USA industry associations such as the RIAA (Recording Industries Association of America) and the MPAA (Motion Picture Association of America) have used politics and clever rhetoric to develop the concept of ‘intellectual property’ and to portray internet file swopping as ‘theft’ of this property. Naughton says that, in his view, the industry associations’ aim is to ‘signify the moral equivalent between sharing a track from a CD with a friend and stealing your neighbour’s goods and handing them round’. Naughton goes on to point out that the new draft EU copyright directive (see Law Updates, February 2003) will impose criminal sanctions on large scale (e.g., for profit) piracy but not on individual file sharing and copying. See www.briefhistory.com/footnotes. The industry campaigning continues and the RIAA and MPAA have just published a brochure warning companies of the risk of internet piracy and work place related copyright infringement. See www.zdnet.com.au. COMMENT:Most legal systems recognise that granting ownership of copyright and other intellectual property rights provides economic stimuli for those who create, invent and design for a living and provides protection against…

Licensing , Live Events / March 2003

LICENSING Live Concert Industry Pub licensee Peter Elton was fined 00 with 00 costs by Bromley Magistrates Court for two admitted breaches of the Pub’s Public Entertainment Licence. Mr Elton admitted to allowing entertainment to continue for 45 minutes past the licenced curfew at the Alexander Pub in Penge on the Kent Borders in England. The licence conditions had been imposed to prevent disturbance to residential neighbours of the Alexander. See www.newshopper.co.uk

Artists , Copyright , Trade Mark / March 2003

TRADE MARK, COPYRIGHT Artists, Merchandising A reunion concert featuring two original members of the Doors has prompted a law suit from original drummer John Densmore in the Los Angeles Superior Court for breach of contract and unfair competition. Original keyboardist Ray Manzarek and guitarist Robby Krieger have teamed up with vocalist Ian Astbury (formerly of the Cult) and Stuart Copeland, drummer with the Police, to play a concert in Los Angeles. Densmore claims that the band’s name is owned as a partnership by the three living members and the late Jim Morrison’s wife, Pamela Courson and that each partner has a right of veto over use of the name. He claims that the ‘new’ Doors are misusing the band’s name and logo and will confuse the general public. Recent cases in the UK involving the use of original band names have included Sweet and Bucks Fizz. Seewww.news24.com/News24/Backpage COMMENT : This area of law has recently been explored in the UK by the High Court in the case of Byford -v- Oliver and Dawson (2003). This case involved the use of the name ‘Saxon’ by Biff Byford, the original singer with the British heavy metal band. Byford had been a band member since its formation in the late 1970s….

Artists , Privacy / March 2003

PRIVACY LAWS Artists The action brought by Michael Douglas and Catherine Zeta Jones reached the High Court in London. The couple and Northern & Shell, publishers of OK, have brought an action against Hello! claiming that their privacy was invaded when a photographer secretly took pictures of their New York wedding and provided these to Hello! who then published the shots. The couple had an exclusive agreement with OK to publish official photos. The UK has no real body of privacy law and recent cases by celebrities such as Naomi Campbell (against Mirror Group Newspapers) and footballer Gary Flitcroft (A -v- B & C [2002]) have done little to develop the right to privacy set out in the Human Rights Act 1998 with the Court of Appeal giving a very wide definition to what the ‘public interest’ might be. Mr Justice Lindsay must have further alarmed the couple by stating in court that in the UK weddings must, by their very nature, be ‘public’ events as part of the ceremony involves asking members of the public if they know of any just reason why a marriage ceremony should not take place.

Licensing , Live Events / March 2003

LICENSING Live Concert Industry Organisers of live music in small venues, currently exempt from needing a Public Entertainment Licence (PEL) and ‘pub’ venues where two or less performers are featured (known as the ‘two in a bar’ rule) are becoming increasingly alarmed at the hidden costs and bureaucracy emerging from the UK Government’s proposed Licensing Bill. Audience magazine noted that ‘far from deregulation or a boost to the industry, the legislation is likely to devastate the sector of live music where many aspiring performers take their first steps and others enjoy a modest living’ (www.audience.com). The initial plan of scrapping PELs and including a entertainment licence free with a venue’s liquor licence initially seemed positive – not now, as both the live music industry and the licensed pub trade are becoming increasingly concerned. The plan to move liquor licensing from Magistrates Courts to local authorities is now opposed by the licensed trade and the live music industry is also alarmed that the new levels of local authority bureaucracy and increased costs will spell the end of small pub and club venues.

Licensing , Live Events / March 2003

LICENSING Live Concert Industry After a meeting lasting until 00.30 the Regulatory Board of Mendip District Council finally granted the licence for the 2003 Glastonbury Festival. This was the festival’s second application having initially been refused a licence because of the Council’s worries about safety and security of local residents and the policing of local villages outside of the Festival site itself. After the seven hour meeting on the 17th February, Festival co-organiser Emily Eavis said ‘I am so excited but it was like going through a really painful paper shredder’. See www.glastonburyfestivals.co.uk


COPYRIGHT Record Labels, Music Publishing, Internet Sony Music Entertainment (UK) Ltd. & Others -v- Easyinternetcafe Ltd. (2003) Mr Justice Smith held that Easy-internetcafes were guilty of copyright infringement by allowing customers to download music and burn CDs at their chain of internet cafes. Investigators for the BPI (British Phonographic Industry) found that hundreds of tracks had been downloaded in the cafes. Users paid £2.50 (approx US $4) for the download and a further £2.50 to buy each CDR. Mr Stellios Haji-Ionannou, owner of the chain of internet cafes, said that he will appeal the High Court decision and that the music industry was itself guilty of ‘extortion’ for overcharging for CDs and that ‘copying music over the internet is no different to videotaping a programme to watch later’. In the UK ‘time shifting’ by copying TV programmes onto a VHS is legal (under the Copyright Designs & Patents Act 1988) for personal use but copying records and films otherwise unavailable is a copyright infringement. In the US case of RIAA -v- Napster (US, 2000) the so called ‘VCR defense’ failed to protect Napster against claims from the Recording Industry Association of America which shut the service down. Damages in the Easy-internet case have yet to be determined. [See…


COPYRIGHT INFRINGEMENT Record Labels, Music Publishing A man and a woman are being questioned after a raid on their Airdrie home in North Lanarkshire uncovered what is believed to be the biggest CD counterfeiting operation ever found in Scotland. Thousands of illegally copied CDs, DVDs and videos were discovered in the raid along with nineteen CD writers, 11 DVD writers and 15 video recorders. This MCPS-led raid (along with Strathclyde Police and Trading Standards officers) was designed to get to the root of the counterfeit problem in Scotland. It follows recent raids by other anti-piracy units that have focused on removing product from the market stalls themselves. Nick Kounoupias of the MCPS Anti-Piracy Unit said: “Getting to the source of significant counterfeiting operations like this one is the real key to stopping the proliferation of counterfeit product. You can strip a market of illegal goods but within a few days, the illegal product is back.” The two who were questioned could then face charges under theCopyright, Designs & Patents Act (1988), the Trade Marks Act (1994) and the Trade Descriptions Act (1968). The maximum penalty for counterfeiting and trade marks offences in the UK is ten years imprisonment. Late in 2002 Norwich Crown…

Licensing , Live Events / February 2003

LICENSING Live Concert Industry The UK’s biggest festival, Glastonbury, is having to re-apply for a Public Entertainment Licence after its initial application was rejected by Mendip District Council (MDC) despite no objections from MDC’s own officers or statutory consultees. The new application will be heard on the 17th February 2003. The Local Government (Miscellaneous Provisions) Act 1982 provides that responsibility for controlling places of public entertainment (music, dancing, etc) rests with the district council or in London with the relevant London Borough. It would normally be an offence to organise public entertainment without a licence or to be in breach of any terms or conditions of a licence granted. At present the licensing of public entertainment applies to all indoor and outdoor events (except bar events with two or less performers). The relevant local authority will have a very wide discretion with the terms and conditions of the licence but as a minimum the authority can impose terms and conditions to secure the safety of performers and others present, to ensure there is adequate access for emergency vehicles and provide toilets and sanitation and to present unreasonable noise and disturbance to the neighbourhood. The Public Entertainment Licence (Drugs Misuse) Act 1997 allows local…

Live Events , Trade Mark / December 2002

TRADE MARK Merchandising, The Live Concert Industry Reed -v- Arsenal FC (2002) The curious case against ‘unofficial’ merchandiser Mr Reed BY Arsenal Football Club (AFC) carries on. The initial hearing in the High Court, London, before Mr Justice Laddie resulted in an unexpected win for Mr Reed. The Court held that because Mr Reed made it quite clear that his goods were unofficial, AFC could not rely on the law of passing of or their registered trade marks for ‘Arsenal’ ‘Gunners’ (AFC’s nickname) and two logos to prevent Mr Reed selling his goods near the club’s ground. The European Court of Justice overturned this decision holding that the unauthorised use of ‘badges of allegiance’ were protected by trade mark law. Mr Reed’s use of the signs created an impression of a link between the goods he sold and AFC and AFC as the proprietor [of a registered mark] is entitled to prevent unauthorised use of their marks. See www.lawreports.co.uk ECJ: Case C-206/01 But in an unexpected twist the High Court ‘overturned’ the ECJ’s decision allowing Mr Reed to continue selling his ‘Gunner’s’ merchandise. The UK decision has sent tremors through the world of band merchandising with fears that a properly registered trademark will not protect…