Court of Appeal decision clarifies occupier’s liability for unforeseeable accidents
Health & Safety , Live Events / February 2006

 HEALTH & SAFETY Live concert industry Lewis v Six Continents Plc January 20 th 2006 In a decision reminiscent of the common sense approach taken by the House of Lords in Tomlinson v Congleton Borough Council & Others . The UK’s Court of Appeal have held that a hotel operator had no duty of care to fit bars or blocks inhibiting the opening of bedroom windows in a hotel so as to prevent injury from a fall. The case may give some comfort to venue operators and promoters who face liability claims from visitors to their premises and events. The appellant, Christian Lewis, had fallen from a second floor window in 2000 and suffered serious injuries. Whilst he had been drinking it was accepted that he was not drunk at the time and the fall was unexplained. The aperture was 68cm. Lewis relied on S2 of the Occupiers Liability Act 1957 and that the hotel had failed in its duty to take reasonable care. The trial judge (Mr Roger Ter Harr QC) held that it was not reasonably foreseeable that an adult occupying the hotel room leaning forward would fall from the window and the court held that there was…

Diabetic pens cause angst for venue management
Health & Safety , Live Events / February 2006

HEALTH & SAFETY Live Concert Industry A diabetic clubber’s anger at being refused permission to keep her pre-loaded insulin pen on her at a nightclub has opened up a debate about whether or not door staff are right to take medication from customers before they enter a club. Lisa Morris, 27, first wrote about her November 2005 experiences at London’s The End nightclub in the Balancemagazine. She explained how she was told that she could not take her insulin pens into the club and had to give these to door staff for ‘safe keeping’. Lisa had previously taken the pens into the club. Lisa was unhappy about handing over her pens – in case they were tampered with and because of hygiene issues. Lisa was attending as a VIP to write a review on the Club but was asked to leave by door suprvisors. In Balance magazine Lisa admitted that she realised the issue of hightened security post 9/11 and the London bombings and that insulin pens have needles. The End banned all syringes and knives but Lisa countered by pointing out that they were allowed on aeroplanes and that in a club and at  events bottles and glasses posed far more of a risk….

Scottish woman jailed for noise breaches
Health & Safety , Live Events / February 2006

HEALTH & SAFETY Live Music Industry A warning to promoters – Noise Annoys! Marion Beresford , a 48 woman has been sentenced to 40 days in prison by Glasgow Sheriff Court for flouting an anti-social behaviour order (Asbo). Beresford was first served with the order in June 2004 after complaints about loud music blaring from her flat. She was finally taken to court in October this year and has now been sentenced. She will spend Christmas and New Year behind bars. In court, the Sheriff said that she had rendered the Asbo meaningless and the court was left with little alternative but to imprison. In a statement, the Glasgow Housing Association said it would use any legal means to ensure tenants could enjoy a peaceful life in their homes. See the Article Noise Annoys by Ben Challis on this site (click on articles)

Local Authorities gain new weapon in fight against fly posting
Health & Safety , Live Events / February 2006

HEALTH & SAFETY Live Music Industry In July 2004 London’s Camden Council targeted  two of the majors, Sony and BMG over illegal street flyposting. Sony Music chiefs escaped after promising not to commission any more illegal postering. The executives faced summons on the basis that flyposting has been defined as causing “harassment, alarm or distress” and so could be actioned under the Public Order Act 1986 . Now the Magistrate magazine (January 2006 Vol 62 No 1) reveals that Wolverhampton City Council have been using fixed penalty notices under the 2005 Clean Neighbourhoods and Environment Act and have issued over 220 to flyposters. One festival alone received 139 fixed penalties for a single event resulting in the promoter paying fines of £6,950.00. The Council reports significantly lower levels of flyposting

Korn launch new band-label-promoter relationship
Artists , Contract , Record Labels / February 2006

CONTRACT Record labels, artists Korn are launching a new financial model for touring on their new US tour as a financial experiment with promoters.  Live Nation Inc (the newly spun-off arm live promoting arm from Clear Channel) who will be the band’s exclusive US promoters. Live Nation will get a 6% share of their box office, licensing, publishing, merchandise and CD revenue for their current and next album according to the New York Times. The promoter is treating this as a long-term investment. Live Nation will pay the band’s production expenses and the band will also get a share (in certain circumstances) of ancillary sources such as drinks and food sold at concerts. Last September, the band signed a five-year deal with EMI whereby the label gets a share of the band’s earnings beyond recorded music. It was suggested at the time that EMI paid a $15M advance for a 25% share in all areas of the band’s earnings. This new deal with Live Nation will see all the live-related monies flow into one pot and then profits distributed three ways – to the band, the promoter and the label.

New licences from MCPS-PRS Alliance
Copyright , Music Publishing / February 2006

COPYRIGHT Music publishing, broadcasting The MCPS has introduced its 2006 Production Music Rate Card which includes a new ‘Per-Programme’ rate for TV. This new rate allows users to obtain a licence for as much production music as they require on a ‘per 30 minute production’ basis. MCPS and its library members are promoting the new approach as bringing greater flexibility and value for money. Also new for 2006 are ‘Infomercial’ rates, designed to cater for this growing UK market. The Alliance is also currently in discussions with MTV Networks Europe about a broad-ranging joint MCPS-PRS licence. Unlike previous MCPS agreements with MTV, the new licence is expected to cover the use of music in virtually all of the programming, on all channels operated by MTV from the UK. If concluded the new licence will take effect from 1 January 2006. MCPS members are being asked to refer synchronisation matters with MTV to the MCPS. (eM24)

DJ Digital Grace Period Ends
Copyright , Live Events , Record Labels / February 2006

COPYRIGHT Live Music industry, record labels ARTICLE: By Tom Frederikse, solicitor, Clintons The Phonographic Performance Limited (PPL) grace period, in which the £100 penalty for DJs who have already operated without a licence was waived, ended on 1 January 2006. The “surcharge” is now payable by all DJs obtaining a Digital DJ Licence for the first time. Since September 2005, DJs that play out using digital copies of their records have needed a licence to make and keep a “digital DJ database”. The PPL (the collection society for airplay and public performance royalties which acts on behalf of record companies and musicians) introduced the licence last year to facilitate the fast-growing trend for DJs to perform with computers and MP3-style music files. In the UK, a music consumer (including a DJ) has no legal right to make digital copies of their music even when the original source is a CD legitimately purchased by that consumer. The annual Digital DJ Licence costs £200 per year, plus a one-off 50% surcharge for DJs who have already used their digital database of copies without a licence. Under the Digital DJ Licence, DJs are allowed to copy any sound recording (including CDs, vinyl records…

MCPS-PRS Alliance to spearhead pan-European licensing
Copyright , Internet , Music Publishing / February 2006

COPYRIGHT Music publishing, internet As Music Law Updates have previously reported, the European collecting societies are gearing up for some big changes to the way they license their members’ music. To encourage the growth of pan-European online music providers, Europe’s collecting societies are changing their licensing from a country-by-country model to a Europe-wide model. The MCPS-PRS Alliance have announced that they will be at the forefront of these changes. Ultimately this will hopefully mean increased effectiveness in the administration of members’ online royalties and ease of use by broadcasters, online retailers, record labels and other users. In the first two moves towards a new licensing model for Europe, the Alliance has announced partnerships with a key publisher and two of Europe’s other major collecting societies. In the first initiative. the Alliance has signed a deal with EMI Music Publishing (EMI). The Alliance will work with German rights society GEMA to build a one-stop shop for the licensing of EMI’s Anglo-American song rights for online and mobile usage across Europe. In the second initiative , the Alliance is partnering with Spanish society, SGAE, to create a new licensing platform for the powerful Anglo-Latin repertoires across Europe.  These initial Alliance projects are…

BBC website features open answers from industry leaders to users of digital music
Copyright , Internet , Record Labels / February 2006

COPYRIGHT Record labels, internet The BBC recently asked its website users to send in their digital music questions to a panel of industry experts (John Kennedy of IFPI, Peter Jamieson of BPI, Brad Duea of Napster and Steve Knott of HMV). They have all supplied their answers. The main questions focus on pricing, DRM, P2P/piracy and interoperability: LINK TO:

IFPI Digital Music Report points to growth in legal downloading
Copyright , Internet , Record Labels / February 2006

COPYRIGHT Record labels, internet Sales of music via the internet and mobile phones proliferated and spread across the world in 2005, generating sales of US$1.1 billion for record companies – up from US$380 million the previous year – and promising further significant growth in the coming year. The findings are released today in IFPI’s Digital Music Report 2006, a comprehensive review of the development of the digital music market internationally.  Music fans downloaded 420 million single tracks from the internet last year – twenty times more than two years earlier – while the volume of music licensed by record companies doubled to over 2 million songs.  Digital music now accounts for about 6% of record companies’ revenues, up from practically zero two years ago. the legitimate digital music business is steadily pushing back on digital piracy.  In Europe’s two biggest digital markets, UK and Germany new research by Jupiter indicates more music fans (6% of the total user group in the UK) are legally downloading music than illegally file-swapping (5%). The mobile phone became a portable music device in 2005, the first year in which song downloads to mobile phones spread internationally. Mobile music now accounts for approximately 40% of record company digital…

US Judge Grants Preliminary Approval for Sony BMG CD Settlement
Copyright , Record Labels / February 2006

COPYRIGHT Record labels A US District Court judge in New York gave preliminary approval Friday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs. Under the proposed settlement, Sony BMG will stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. People who have already purchased the flawed CDs will be offered the same music without digital rights management (DRM), and some will also receive downloads of other Sony BMG music from several different services, including iTunes. The settlement would also waive several restrictive end user license agreement (EULA) terms and commit Sony BMG to a detailed security review process prior to including any DRM on future CDs, as well as providing for adequate pre-sale notice to consumers in the future. Consumers can exchange CDs with XCP software for clean CDs now, but the rest of the settlement benefits will not be available until an official notice to the class has been issued. The court ordered that the notice–via newspaper ads, Google ads, email and other means–must occur by February 15. Once that notice goes out, consumers can begin submitting claims for settlement benefits and should get those benefits within 6-8…

EFF Calls on EMI to Permit Security Research on Copy-Protected CDs
Copyright , Record Labels / February 2006

COPYRIGHT Record labels The Electronic Frontier Foundation (EFF) today sent an open letter to EMI Music, calling on EMI to agree not to pursue any legal action against computer security researchers who examine the copy-protection technologies used on some EMI CDs. In late 2005, independent researchers uncovered security problems with Sony-BMG copy-protected CDs, forcing the label to issue patches and uninstallers to those customers who had played the CDs on Windows computers. Several record labels owned by EMI, including Virgin Records, Capitol Records, and Liberty Records, use similar copy-protection technologies supplied by Macrovision. On those CDs, an end user license agreement (EULA) forbids reverse engineering for any reason, including security testing. In addition, the Digital Millennium Copyright Act (DMCA) has chilled the efforts of computer security researchers interested in examining copy-protected CDs. In the open letter published Wednesday, EFF urges EMI Music to publicly declare that it will not take legal action against computer security researchers who study copy-protected CDs released by record labels owned by EMI. “Music fans deserve to know whether EMI’s copy-protected CDs are exposing their computers to security risks,” said Fred von Lohmann, senior staff attorney with EFF. “When it comes to computer security, it pays…

BPI announce first legal successes against file swappers in UK
Copyright , Internet , Record Labels / February 2006

COPYRIGHT Record labels, internet Two UK residents have been forced to pay over ‘thousands of pounds’ by the High Court on copyright infringements actions brought by the British Phonographic Industry. In one case the defendant, who refused to settle with the BPI, claimed he was unaware that his actions were illegal and had not sought to benefit financially. He was fined and ordered to pay £1,500 against a final determination of damages and costs. In the second case the defendant was ordered to make an immediate payment of £5,000 against a far larger final figure of damages and costs. The BPI said that the rulings were ‘a massive step forward in the music industry’s bid to fight illegal file-sharing. The BPI has brought 139 cases against alleged file sharers and so far has settled approximately 90 with an average settlement figure of £2,500.00. Evening Standard 27 January 2006.

GEICO v Google settlement still provides food for thought
Internet , Trade Mark / February 2006

TRADE MARK Internet ARTICLE by Jason Patrick Kairalla of Jorden Burt LLP With little fanfare, the presiding federal district judge in the GEICO v. Google case issued the much anticipated and long-awaited written order on Google’s motion for judgment on the pleadings in the action of using competitors trade marks in internet search engine based advertising. Whilst Google may have escaped a decision on their liability the fact remains that it appears that actual use of a competitors trade mark in advertising to drag internet customers to a competitors site may well result in liability for trade mark infringement in the US.

When marks are confusingly similar
Artists , Record Labels , Trade Mark / February 2006

TRADE MARK Merchandising, artists, record labels ARTICLE by Lee Curtis, Pinsent Masons Probably one of the most subjective areas of trade mark law is the question of when are two trade marks confusing similar. Whether one trade mark will be confused with another is dependent on a number of factors and this article examines the UK law in this area.

UK Secretary of State opposes plan for EU internet regulation
Competition , Internet / February 2006

COMPETITION Internet Tessa Jowell, the UK’s Culture Secretary, has said that European Union plans to regulate the internet would be unwelcome, arguing that the new media were best left to regulate themselves and that ordinary criminal laws were sufficient to regulate the internet. The EU insists that its new plans would be ‘light touch’. The EU is trying to overhaul its1989 ‘Television Without Frontiers’ Directive in particular to introduce new rules on the protection of children and the incitement of hatred. The remarks were made at the Oxford Media Convention. See the Times, 20th January 2006.