Copyright , Record Labels / September 2004

COPYRIGHT Record Labels The IFPI (International Federation of the Phonographic Industry) have published the 2004 edition of the “Recording Industry In Numbers” which contains a mass of detail on the current state of the global music market including a list of the top 50 best-selling albums, globally, in 2003. The top 10 has Norah Jones’s ‘Come ‘Away With Me’ as the year’s best-selling album, followed by (in order of sales): 50 Cent ‘Get Rich or Die Tryin”, Linkin Park ‘Meteora’, Dido ‘Life for Rent’, Beyonce Knowles ‘Dangerously in Love’, Coldplay ‘A Rush of Blood to the Head’, Evanescence ‘Fallen’, Britney Spears ‘In the Zone’, Avril Lavigne ‘Let Go’ and Celine Dion ‘One Heart’. The major companies’ top ten albums and top ten videos are also listed as are market shares of the major and independent companies by country. For the first time IFPI has produced market shares based on wholly or majority owned content on a country by country basis. The global market shares for 2003 were BMG at 11.9%, EMI at 13.4%, Sony at 13.2% (now combined with BMG), Universal at 23.5% and Warner at 12.7%. Independents had a 25.3% market share. Analysis of trends in retailing show a…

Television Format Rights – Simon Fuller and Simon Cowell at Legal Loggerheads Over Claims That The ‘X Factor’ Infringes ‘Pop Idol’
Copyright / September 2004

COPYRIGHT Television Simon Fuller, the ex Spice Girls manager and owner of 19 Management and 19 TV which produces the successful Pop Idol television programmes has issued legal proceedings in the United Kingdom against Pop Idol judge and A&R executive Simon Cowell, his companies Syco and Simco and Freemantle Media (part of Bertlesmann’s RTL) alleging that Simon Cowell and Freemantle’s new talent competition ‘X Factor’ infringes the copyright in the Pop Idol programmes and Pop Idol format. The programmes share two of the same judges, Simon Cowell himself along with Boyzone Manager Louis Walsh (along with new judge Sharon Osbourne), a shared presenter (Kate Thornton who presented for Pop idol on ITV2) and alleged similarities in direction: contestants audition in front of the three judges and receive immediate comment; the deliriously happy or distraught contestants are then commiserated with, or hugged, by the presenter. Fuller is also investigating similarities in the music used, logo and other format features. Simon Fuller also claims that a number of key Pop Idol production executives who have moved to X Factor are under non-compete clauses in their Pop Idol contracts. In an added twist, Simon Cowell is still under contract for a further two…

Classic Rock & Roll Sound Recording Copyrights Begin to Expire in Europe
Copyright , Record Labels / September 2004

COPYRIGHT Record Labels The re-entry of Elvis Presley’s That’s All Right into the charts in Britain fifty years after it was first released in the US is a success story for BMG but one which possibly will be very short lived. Unless there are changes in UK (and European copyright law with which UK law is now harmonised) the track will fall into the public domain on January 1, 2005 and anyone will be able to use the sound recording without paying royalties to the owners of the master. Landmark rock ‘n’ roll recordings such as Presley’s That’s All Right and Shake, Rattle and Roll by Bill Haley and his Comets also come out of copyright in Europe in January next year. Over the next few years, major hits by acts such as Little Richard, Johnny Cash, Bo Diddley and Fats Domino will also come into the public domain. The Beatles’ catalogue would begin to become freely available from 1 January 2013, with their first single Love Me Do. The band’s entire repertoire – the most prized catalogue in rock music – would follow over the next eight years. The song (the musical composition) will remain in copyright though. Copyright in sound recordings lasts for fifty (50)…

Lil Romeo Faces Lawsuit From Album ‘Ghostwriter’
Copyright , Music Publishing / September 2004

COPYRIGHT Music Publishing Lil Romeo’s album Gametime is the subject of a lawsuit over claims that the author of some of the album’s material was never compensated or credited for his contributions. Sean Cunningham claims that he wrote six songs on the album, one that appeared in a motion picture titled “Max Keeble’s Big Move” that featured a cameo by Romeo. The lawsuit was filed in the Federal District Court in Houston, Texas. The lawsuit names Lil Romeo, Master P., Master P. Music LLC, One Up Entertainment, Universal Music Group and Buena Vista Home Entertainment as defendants. In addition to claims of not being properly credited, Cunningham also claims that Lil Romeo copied his style which could be an interesting development if this is argued in court. At present the whole area of ‘image rights’ are still being developed although they are more accepted in the US than in the UK. Cunningham’s lawsuit claims he was not paid to be a ghostwriter for the album and is seeking an undisclosed amount. The case will go to trial on 5 March 2005. See : http://www.allhiphop.com/hiphopnews/?ID=3343

The Recording Industry Association of America Settles Its Lawsuit Against Israeli File-Swapping Company iMesh

COPYRIGHT Music Publishers, Record Labels, Internet The RIAA has settled its lawsuit against iMesh for damages of $4.1 million. The organisation sued iMesh last September, charging that the company was contributing to copyright infringement on a massive scale. As a part of the deal, iMesh has agreed to move to a business model that “abides by U.S. copyright laws,” the RIAA said. The RIAA has had some notable successes against file swapping services effectively closing down the then illegal Napster and Aimster (and ‘madster’). However the RIAA has not always had such success and In April 2003 Judge Stephen Wilson, a federal judge in Los Angeles, handed a stunning court victory to the file-swapping services Streamcast Networks and Grokster, dismissing much of the record industry and movie studios’ lawsuit against the two companies. In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast -parent of the Morpheus software – and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry. “[the] Defendants distribute…

Russian Mobile Phone Downloads Violate Copyright Law

COPYRIGHT Record Labels, Music Publishers, Artists, Telecommunications The leader of the popular Russian rock group Leningrad, Sergei Shnurov, has won a case focusing on intellectual property rights violation in Russia by the use of melodies in mobile phone ringtones. The Basmanny Court of Moscow court has ruled that S.B.A. Music Publishing, a subsidiary of the Gala Records company, must pay 100,000 roubles to Sergei Shnurov for violating his intellectual property rights by issuing a permission for mobile phone companies to use Shnurov’s music for mobile phones and karaoke, Gazeta reports. Without the musician’s consent, S.B.A. concluded contracts with companies co-operating with mobile phone operators and gave them the right to adapt compositions of the Leningrad leader for mobile phone melodies. No recording rights were involved as the mobile operators would produce their own ‘recording’ for phone ringtone use. One Russian mobile phone operator, Beeline, alone downloaded $90,000 worth of Shnurov’s songs in early 2000-February 2004. Shnurov estimated his losses at $40,000, but the Basmanny Court found this figure too high and ruled to pay him less. Russian recording companies will now have to be more careful about adapting people’s music. See : http://newsfromrussia.com/main/2004/07/23/55208.html

McCartney Objects to Use of Sample

COPYRIGHT Record Labels, Music Publishers In the USA Paul McCartney has taken action on a sample used without his direct permission: A writ filed in a New York court claims that EMI and record company Universal illegally allowed the hit tune “Tomorrow”, from the musical Annie – to which McCartney owns the rights – to be sampled on the rap song What Da Hook Gon Be by Murphy Lee. The lawsuit was lodged by McCartney’s company MPL Communications and Charles Strouse, composer of Annie. Lee’s record sold 500,000 copies in America alone. For an article on the legalities of music sampling see :http://www.musicjournal.org/03thesongremainsthesame.html

Hallyday Wins Back Control of Master Tapes
Artists , Copyright , Record Labels / September 2004

COPYRIGHT Record Labels, Artists French singer Johnny Hallyday partially won a legal battle with his record company, Universal, when a Paris tribunal awarded him control of more than 1,000 master tapes recorded during his 40-year career. But the artist, who has sold more than 80 million records, will not know until next March whether his E50m () damages claim against Universal Music France is justified. This win will be viewed with some alarm in the music industry, which traditionally tries to retain control of artists’ original recordings at all costs. Hallyday argued that he had been “robbed” and “swindled” by Universal, which had ‘lent’ him E16.3m over the years since 1978 and used the debt to impose “unfair and unjust” conditions in successive recording contracts. The loans were repaid (or ‘recouped’) directly from Hallyday’s royalties and the court yesterday appointed an expert to examine every contract between the two parties and establish whether the singer had been charged too much interest or pressed into signing recording deals which were plainly disadvantageous to him. The star claims that the record company loans set him on an “infernal spiral”, forcing him to work simply to repay his debts and to cede to…

Publican Escapes Prison After Repeatedly Failing to Obtain a PRS Licence
Copyright , Live Events / September 2004

COPYRIGHT Live Event Industry A licensee has escaped a possible prison sentence after repeatedly failing to take out a Performing Right Society (PRS) music usage licence. Tim Doyle, who runs Doyle’s Tavern, in Holloway, London, was taken to the High Court for failing to comply with a court order following persistent infringement of copyright in PRS members’ musical works since 1998. Doyle agreed to take a PRS licence for his premises and to pay a total of 71.24 in respect of PRS royalties for the period 6 July 1998 to 5 July 2005. The court ordered he also pay PRS’s legal costs totalling 056.50. The court warned Doyle of the consequences of not complying in the future with Court orders saying “If a breach of the court order happens again, prison is a live possibility. Orders of the court are to be obeyed; if not, certain consequences follow.” See : http://www.thepublican.com/cgi-bin/item.cgi?id=14212&d=32&h=24&f=23&dateformat=%25o%20%25B%20%25Y

Scottish Promoters Use a ‘Wedding’ to Try to Foil Licensing Laws
Health & Safety , Licensing , Live Events / September 2004

LICENSING, HEALTH & SAFETY Live Event Industry A local authority has banned a music festival in the Scottish Lothians after organisers tried to bill it as a wedding to help escape the need for licensing. Twisted Events, the company behind Green’s Music Festival, had hoped to overcome problems licensing the event with West Lothian Council by rebranding it as a private wedding party. A couple had offered to take the plunge on stage to help push the event forward as licensing negotiations between organisers and council chiefs rumbled on. As a private party, entertainment and alcohol licensing was not required and twenty four local young rock acts were due to perform for 1000 revellers on farmland near Broxburn. The bands had taken part in a competition. But the local authority took the organisers to court, threatening to ban the event entirely. At Linlithgow Sheriff Court the parties reached an out-of-court settlement but an array of restrictions were slapped on the “wedding”. All bands enlisted to perform were cancelled while restraints were placed upon music played and numbers of guests permitted. In addition, council and police officials had to be informed fully about all plans. The couple who had planned to…

MCPS and BPI Finally Agree Rates for DVDs

COPYRIGHT Record Labels, Music Publishers The Mechanical Copyright Protection Society (MCPS) and British Phonographic Industry (BPI) have finally agreed the terms of a 2 year licensing agreement for the copying of musical works to be released in DVD format. BPI members who use music on DVDs are required to take a licence from MCPS. MCPS represents composers, songwriters and publishers; it collects and distributes royalties on their behalf and administers copyright in their works. In 2003 MCPS informed BPI that it was going to introduce a DVD Licensing Scheme. Some of the proposed terms were rejected by BPI and the matter was referred to the Copyright Tribunal. The parties have now reached a settlement with reduced rates payable for the immediate future and then new rates applicable for 2005 onwards for both royalties and synchronisation licences. Under the agreement, the royalty rates are: – 6.25% of PPD for music DVDs that are predominantly audio-visual and contain no more than two audio-only music tracks – 7.25% of PPD for music DVDs that contain more than two audio-only music tracks and more than two audio-visual music tracks e.g. a DVD release packaged with a CD – 8.5% of PPD for music DVDs…

Australian DJs Guilty of Copyright Infringement

COPYRIGHT Record Labels, Music Publishers Five Australian DJs who used CD burning equipment to create CDs for their own use in clubs but also sold or gave copies of the CDs to the public have been found guilty of copyright infringement and ordered to pay damages of AU$18,000 to Universal Music and other applicants. A sixth respondent was joined in the case for selling the CDs online. The respondents were also ordered to pay additional damages pursuant to section 115 of the Australian Copyright Act when Justice Wilcox found that the respondents had knowledge that their act constituted an infringement and that they benefited from it: additional damages totalled AU$30,500. Justice Wilcox applied an approximate cost of AU$8.50 per CD in determining the loss of income for the copyright holders and the sum of damages to be paid by the respondents. Despite argument from the respondents’ lawyer that many of the CDs were given away, forgoing any financial benefit for the DJs in question, Justice Wilcox found that the infringements were “deliberately made for their ultimate financial gain” and that the respondents were aware that their act constituted an infringement of copyright. Justice Wilcox refused to offer any leniency to…

EFF Pushes Digital Television Revolution
Copyright / September 2004

COPYRIGHT Broadcast The Electronic Frontier Foundation is stepping up its campaign against the new technology regulations from the Federal Communications Commission which will outlaw a set of technologies in less than a years time and police the way people record and view digital television broadcasts. Aimed at preventing illegal copying, The EFF suggests that the FCC’s “broadcast flag” could actually prevent a number of activities that are perfectly legal under copyright law – such as recording a clip of a Fox News program and redistributing it with commentary for the purposes of criticising the company’s reporting. EFF is fighting back with the Digital Television Liberation Project – an initiative to help people make their own broadcast flag-resistant personal video recorders (PVRs) from off-the-shelf parts. EFF has created such a PVR and demonstrated the machine at the Defcon 12 conference in Las Vegas, Nevada in late July. “We want to keep the right to time- and space-shift that the VCR has given us. We want to keep the fair use rights that let us excerpt clips from press conferences or make our own ‘Daily Show’ from the evening news,” says EFF Staff Attorney Wendy Seltzer.”That’s why we’re encouraging people to buy…

JibJab Files Suit to Defend Fair Use Rights
Copyright , Music Publishing / September 2004

COPYRIGHT Music Publishing In early July, the two brothers behind the animation shop JibJab released a short flash animation featuring cartoon versions of President Bush and Senator John Kerry slinging insults at each other to the tune of Woody Guthrie’s “This Land Is Your Land”. The short, called “This Land” has been very popular but the copyright holder to the music composition, Ludlow Music, Inc., has threatened JibJab and its upstream website hosting providers with copyright litigation. Jibjab have argued that their use of “This Land is Your Land” should qualify as a fair use under copyright law: The animation house used only a few lines of Guthrie’s lyrics and the short is also a parody, commenting not only on the 2004 elections, but also on Woody Guthrie’s famous song. JibJab has asked the Electronic Frontiers Foundation to help to protect its fair use and free speech rights and the EFF have filed a lawsuit on JibJab’s behalf, asking a federal court in San Francisco to declare that the use of the composition is perfectly legal. Ludlow were previously successful in a copyright action against Robbie Williams after Williams used near identical lyrics from a Guthrie song in Williams’ song“Jesus In A Camper Van”. However the…

Retired Police Officer Held Massive Database of Music Files for Swapping. R v Manton
Copyright , Music Publishing / September 2004

COPYRIGHT Music Publishing After British Phonographic Industry (BPI) investigators spotted a website selling CDs by mail order, Trading Standards Officers seized two computers, a stack of 1,262 disks and details of emails from Howard Manton – alleged evidence of the illegal internet-based music business the retired policeman was running from his home. The 45-year-old ran a website which offered copied albums for sale. His online catalogue featured 37,650 songs – some of which had been recorded live and had not been released by the record companies. Among his collection were counterfeits of tracks by Robbie Williams, Oasis, Queen and Pink Floyd. The music was downloaded in mp3 format onto disks, which each contained up to eight albums. They also included artwork from the front and back cover of the genuine CD. Manton, admitted 14 charges including copyright and trade mark infringement. He told Nottingham magistrates that he made from the venture but had ploughed this back into his music collection. He also claimed that he had contacted trading standards prior to setting up the site and had been told that it was not illegal. The Magistrates Court sent the case to Nottingham Crown Court for sentence – they ordered a…

Megadeth Members Serve Lawsuits On Each Other
Artists , Copyright / September 2004

COPYRIGHT Artists The founding members of 1980s metal band Megadeth have exchanged lawsuits after bassist David Ellefson filed an action on July 12 2004 in U.S. District Court for the Southern District of New York alleging that co-founding guitarist David Mustaine breached their long-running partnership agreement. He claims Mr Mustaine wrongfully took the lion’s share of the band’s income (estimated at more than $200 million since 1984) for himself and cut Ellefson out of the band’s music publishing and merchandise revenues. The bassist is seeking at least $18.5 million in damages. Mr Mustaine’s counterclaim, filed July 29 in California Superior Court in L.A., alleges that Mr Ellefson executed a settlement agreement in which he gave up his 20% interest in Megadeth. Mr Mustaine maintains that the settlement, which Ellefson alleges was signed under pressure (duress) and ultimately withdrawn, released Mr Mustaine from all claims and his suit seeks damages to be determined. Source : Billboard See : http://msnbc.msn.com/id/5627419/

BPI Welcomes Government Crackdown On IP Theft

COPYRIGHT Reord Labels, Music Publishers, Broadcasting, Internet, Artists The UK recorded music industry’s association the BPI (British Phonographic Industry) today welcomed the Patent Office’s increasing commitment to fighting the escalating problem of intellectual property (IP) theft – piracy and counterfeiting – in unveiling the UK’s first IP crime strategy. Music piracy generates over million annually for counterfeiters, and this figure grew by 13% in 2003- six times the growth in legitimate CD sales. Intellectual property crime cheats consumers, costs jobs and helps fund organised crime. Piracy and counterfeiting, including DVDs, perfumes, clothing and alcohol, costs the UK economy billions of pounds and undermines the success of many of the UK’s best companies. The national strategy, developed by the Patent Office and launched by Industry Minister, Jacqui Smith MP, brings together brand owners, police, trading standards and customs to: – increase the sharing of intelligence between different agencies; – improve training for those working at the front-line; – better co-ordinate the agencies involved in the fight against intellectual property crime; and – monitor progress and success by publishing an annual national enforcement report The Industry Minister, said “Pirates and bootleggers cheat consumers and place a drain on our economy We cannot…

US Antitrust Settlement ‘Censored’ By State Lawyers
Artists , Censorship , Competition , Record Labels / September 2004

COMPETITION LAW/CENSORSHIP Record Labels, Artists In 2002 US District Judge D Brock Hornby sitting in the federal court approved the settlement of a lawsuit filed on behalf of millions of record club members who alleged they had been overcharged in a price-fixing conspiracy. The sum of US $143 million was agreed by the five major record companies (Sony, BMG, EMI, Universal and Warners) and three large music retailers in settlement of the anti-trust claims – the claims were that they had been conspiring to set minimum prices for music CDs in the United States. Under that settlement, 3.5 million people received cheques for $12.60 and libraries and schools across the country will due to get $75.7 million worth of music CDs. The lawsuit was signed by the attorney generals of 43 states and territories. However, all is not well with the settlement. In Kansas City, Missouri the Attorney General Phil Kline has withheld 1,600 of the state’s allotted 51,000 discs, because they are contrary to his “concept of decency”. He will not allow any albums that “promote violence or illegal activity” to go into public libraries or schools. The 25 offending artists include Outkast, Notorious B.I.G., Rage Against The Machine,…

US: Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement

COPYRIGHT Record Labels, Internet, Music Publishers The Ninth Circuit Court of Appeals made a crucial decision in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creators of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies. The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court’s decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR. “Today’s ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “There is no reason to think that file sharing will be any different.” The court’s decision was unanimous. It is…