Joyce Hatto mystery solved
Copyright , Record Labels / April 2007

COPYRIGHT  Record labels Here is a new twist in the Joyce Hatto story (which we missed last month!). Until recently Hatto (who died in 2006) had been hailed as one of Britain’s foremost classical pianists although she had retired from the concert stage some thirty years ago. But for years rumours had swirled around questions of how she could maintain such productivity and quality in her sound recordings. Her CDs were released by her husband, William Barrington Coupe, on his own label Concert Artist. Then allegations began to surface that some of the CDs were copies – and here is an example of another new development in the digital age (its not just record label woes and consumer freedoms etc). One positive advantage of new digital technology is the ease of comparing recordings. One listener had put Hatto’s recording of Liszt’s 12 “Transcendental Études” into his computer and lo and behold – his iTunes software identified the disc not as Hatto’s recording but as one by Laszlo Simon on the BIS label, originally issued in 1993 (iTunes uses a database called CDDB to identify discs using information about the number and length of the tracks). As rumours abounded, Gramaphone magazine told the ‘conspiracy…

Patent decision may be critical to download market
Internet , Patents / April 2007

PATENT LAW  Internet A federal jury in the United States has decided that Microsoft infringed on two patents used in the conversion of music to digital MP3 files and has ordered that the computer company must pay $1.52 billion in damages to France’s Alcatel-Lucent SA. The two patents cover the encoding and decoding of audio into the digital MP3 format. Microsoft’s defence was that it had already paid for and licensed the technology (to the tune of $16 million) from Germany-based Fraunhofer Institute, which licenses it to hundreds of companies, including Apple Inc. and RealNetworks Inc. The decision was the first of six cases that will be heard in the U.S. District Court in San Diego. All stem from claims made in 2003 by Lucent Technologies against PC makers Gateway Inc. and Dell Inc. for technology developed by Bell Labs, its research arm. The next case, which relates to speech coding, is set to go to trial in March or April. Other areas in dispute include video coding on Microsoft’s Xbox game console and Windows user interface.

MEPs want EU law for online music

COPYRIGHT Internet, music publishing ARTICLE LINK:  The European parliament has criticised its own executive for prioritising competition between collection societies – rather than protecting cultural integrity in member states. Song-writers’ and composers’ rights are currently controlled by Collective Rights Management societies (CRMs) which grant national distribution licences for record labels and online shops and collect royalties of a few cents per download. The artists are most often represented by their national CRM society – some of which date back to the 1850s – and in the other EU countries by virtue of reciprocal bilateral agreements that allow, say, a Spanish society to licence Dutch music in Spain while channeling cash from Spanish royalties back to the Netherlands. But with the EU digital music sector set to become a €3.9 billion a year industry by 2011, the major record labels are pushing Brussels to break-open the rights monopolies system. The European Commission therefore proposed in its recommendation to open up the copyright market to competition allowing those interested in trading music on the web to negotiate with one CRM instead of each individual CRM in the 27 different EU member states. But MEPs are saying that although competition is good, to…

Queen protect mark against new application
Artists , Trade Mark / April 2007

TRADE MARK Artists, merchandisng Ilanah Simons from the purrfect IPKat webblog reports a victory for the rock group Queen before the Trade Marks Registry. Julia Ruhnke made a Madrid Protocol application to register the term QUEEN FOR A DAY for clothing. The surviving members of the rock group Queen opposed the application based, inter alia, on their registration of the word QUEEN for the same goods. Since the goods were identical, the issue came down to whether there was a likelihood of confusion taking the similarity between the marks into account. Yes, there was, said Mr Hearing Officer Reynolds. Although the number of words in the two marks was different, there was a strong conceptual link between them. QUEEN, when used on clothing, would be viewed as referring to the concept of a female monarch, which would be fanciful in relation to clothing. QUEEN FOR A DAY contained a conceptual difference, as it suggested how the wearer would feel when donning the clothes but (hold on to your hats folks), this conceptual difference actually enhanced the degree of similarity between the two marks because it reinforced the connection with royalty by suggesting that the lucky lady wearer would feel like a…

Did he? He did, didn’t he? Richard Dearlove (trading and professionally known as “Diddy”) v Sean Combs (trading and professionally known as “Sean ‘Puffy’ Combs”, Puffy” and “P. Diddy”) [2007]
Artists , Trade Mark / April 2007

TRADE MARK Artists EWHC 375 (Ch). Sean Combs had already been ordered to stop using the name ’Diddy’ in previous litigation which saw him pay over £10,000 in damages to British DH Richard ‘Diddy’ Dearlove as well as £100,000 on costs. Now Mr Justice Kitchen has ordered Mr Combs to drop a lyric in which he calls himself “Diddy” when he performs at Wembley Arena. In a High Court ruling, Mr Justice Kitchin said that Mr Combs had breached the agreement which resulted from the previous litigation. That agreement provided, inter alia, that Combs would refrain from advertising, offering or providing, or causing/procuring others to advertise, offer or provide any goods and services not being the Claimant’s goods and services as a remixer, producer, songwriter, recording artist and DJ under or with reference to the word “Diddy . Kitchen J agreed that Combs had clearly advertised himself as “Diddy” in a song called The Future on his latest album Press Play. The judge ruled: “The second verse refers to Mr Combs as ‘Diddy’ as he invites the listener to ‘mainline this new Diddy heroin’. Mr Combs expressly refers to iTunes and asks the listener to ‘Download me in every resident’. He refers to his CD…

Heritage band name dispute drifts towards the High Court
Artists , Contract , Trade Mark / April 2007

TRADEMARK / CONTRACT Artists The Drifters are one of the longest serving groups in the history of popular music – and hits like Under The Broadwalk., Saturday Night at The Movies and Save The Last Dance for Me have made them pretty influential as well. But now members in the current line up – who are amongst the fifty or so singers who have been in the Drifters, face a legal action from the wife of the band’s ex-manager who claims she owns the right to the name The Drifters. Faye Treadwell claims she is the legal owner of the name – which her husband brought from the original band in 1954 – and that he ran the band as a business, employing various signers to tour and record as The Drifters. Ms Treadwell is bringing an action in the UK against the band known as the Drifters (who themselves have lodged UK and European CTM trade mark applications for the name) and in the USA against a number of ‘Drifters’. A number of states in the USA have already passed laws protecting ‘heritage acts’ saying that at least one original member must be still involved. Recent band name disputes involving original members included…

Ongoing Management Commission gets Seal of Approval : Wadlow v Samuel

CONTRACT Artists ARTICLE  By Charlie Anderson, Solicitor, Clintons  The Court of Appeal this week upheld the 2006 judgment in the case of John Wadlow v Henry Olusegun Adeola Samuel (pka Seal). The recording artist failed to persuade the Court of Appeal that a 1995 agreement ending his relationship with Mr Wadlow, his former manager, was procured by undue influence. The Court of Appeal dismissed the appeal on 28 February 2007 and confirmed the validity of   the contract for Mr Wadlow, who was represented by Clintons solicitors. Mr Wadlow discovered Seal in the 1980s and invited him to record some songs at Beethoven Street Recording Studios, which he then ran. In 1988 Seal signed a publishing deal with Mr Wadlow’s publishing company and in 1990 the pair signed a management agreement that provided perpetual post-term management commission to Mr Wadlow on the albums recorded during the life of the contract. In 1995, after the release of two highly successful albums, and as Seal’s career was increasingly based in the US, they amicably parted company and drew up a “settlement agreement” which terminated the management agreement. Under the settlement agreement Mr Wadlow made several valuable concessions, including the return to Seal of the publishing rights…

The top 10 ways copyright law can ruin your transaction
Copyright / April 2007

COPYRIGHT All areas ARTICLE LINK By Robert S Gerber & Edwin Komen , Sheppard, Mullin, Richter & Hampton US Copyright law is full of exceptions and qualifiers, and many clients and lawyers have only broad understandings of the way copyright law works to protect the original expression of ideas. Copyright litigators see many deals go sideways because of client or attorney misunderstandings about copyright law. This is Mr Gerber and Mr Komen’s top ten!

EC to investigate Sony-BMG merger
Competition , Record Labels / April 2007

COMPETITION Record labels The European Commission has announced it is launching a new more detailed investigation into the 2004 merger of Sony and BMG’s record label operations which means competition regulators will now not rule on whether the merged enterprise, SonyBMG, can continue to operate in its current form until July 4th 2007 (now extended by two weeks). The EC is also considering the potential tie up of BMG Music and Universal Music. The EC had been forced to reconsider their approval of the SonyBMG merger after the European Courts of Justice annulled the approval last year. The annulment came after a case brought by independent label trade association IMPALA: IMPALA members have asked the EC to look at specific concerns about their reduced market access including the collective dominance of the majors and co-ordination of  competitive behaviour in retail, radio and television, press and other media, as well as in the vital on-line market. The independents also asked  the Commission to address other vital issues such as cultural diversity (which MEPs also recently highlighted as above), the  role of creativity and small business in the Lisbon strategy, vertical integration, links with sister publishing companies, unfair leveraging of repertoire and…

US radio stations settle with FCC in payola scandal
Competition , Record Labels / April 2007

COMPETITION LAW Record labels Following from New York Attorney General Eliot Spitzer’s successful pursuit of the for major record labels in the US on payola charges, four major US broadcasters (Entercom, Clear Channel, CBS and Citadel) have been fined $12.5M by the Federal Communications Commission, bringing to an end the most recent probe into payola in the US media. The stations have also agreed to up their airplay commitment (of around 4,000 hours) to local and independent acts. While the broadcasters have admitted no wrongdoing, the deal is still subject to final FCC approval. A new set of regulations will also be put in place that will mean closer scrutiny of broadcasters’ dealing with record labels, a limit – as well as greater transparency – on the ‘gifts’ they can receive from labels, as well as the introduction of a “payola hotline” for radio employees to report abuses of the system (Five Eight magazine). The deal appears to close an embarrassing chapter for the music and radio industries. Mr. Spitzer’s inquiry disclosed how payloa payments had become widespread as label executives pressed to obtain exposure for stars. In some cases, label executives offered payoffs directly; in others, they hired middlemen…

IFPI to sue Yahoo! China
Copyright , Internet , Record Labels / April 2007

COPYRIGHT Record labels, internet The Asia branch of the International Federation of the Phonographic Industry has confirmed it is suing Yahoo! China for copyright infringement based on the search engine’s practice of providing links to unlicensed music download site. IFPI’s Asia Regional Director Leong May-Seey has confirmed that Beijing’s Intermediate Court has accepted the case, being brought against the web firm by eleven music companies, including all of the majors. It is worth noting that the IFPI is taking the action against Yahoo! China despite ultimately losing a similar previously reported case against China’s leading search engine Baidu last year. While the Chinese courts initially ordered Baidu to pay compensation to EMI for its MP3 search service which provided links to illegal sources of music, an appeal hearing in November overruled that decision ruling that Baidu could not be held liable for any copyright violation because it did not, itself, host any of the unlicensed content, it merely linked to the illegal sites.

Viacom launches infringement lawsuit against YouTube
Copyright , Internet / April 2007

COPYRIGHT  Internet Media giant Viacom (parent company of MTV, Nickleodeon and Paramount) is seeking $1B in compensation against YouTube, claiming that 160,000 unauthorised clips have been uploaded and watched over 1.5B times on the video-sharing service. It is also seeking an injunction to prevent YouTube users from illegally uploading any more of its content. Viacom has alleged that YouTube has failed to implement sufficient filtering safeguards and that negotiations were “unproductive”. The legal battle is now moving up a gear as Viacom accuses YouTube of increasing  user traffic and upping ad revenues as a result of the use “unlicensed content [which] is clearly illegal and is in obvious conflict with copyright laws”. YouTube is now owned by Google which brought the user generated platform for $1.65 billion in 2006. It is not the first time YouTube have faced the threat of egal action. Major record labels such as warners and Universal threatened action but eventually entered into commercial relationships with the platform. It is expected that Youtube will use the ‘safe harbour’ provisions Digital Millennium Copyright Act (DMCA) of 1998 as a primary defence against Viacom’s claims although clearly the decision of the Supreme Court in MGM v Grokster will be an important factor here.

Who owns the live music of days gone by?
Copyright , Internet / April 2007

COPYRIGHT Television, internet Article Link: By Robert Levine, New York Times This interesting US article looks at the complex issue of ownership of archive TV recordings – especially where these now have a substantial value when incorporated into new formats such as DVD, downloads, Video on Demand, content for mobiles and internet streams: the article touches on the ongoing litigation over internet service ‘Wolfgangs’ Vault’ which is exploiting master tapes previously held in the private archive of legendary US promoter Bill Graham. Also see the item on Tom Jones above.

Jones sues over the release of 1981 TV soundtracks as CDs
Artists , Copyright , Record Labels / April 2007

COPYRIGHT Artists, record labels Tom Jones has begun legal proceedings against a Californian company called C/F International who, he claims, is illegally distributing sound recordings he made as part of a TV show in 1981. Jones and his company, Tom Jones Enterprises, is seeking to stop the licensing firm from distributing rights to sound recordings from the 24 episode Tom Jones Show. The legal papers apparently allege that (a) any licences granted related to TV use only – rather than use of the audio tracks in sound recording devices such as CDs and (b) have in all events terminated because of breach of contract. Also see the article link on TV archive in this months update.

Music streaming rates rise in the US
Copyright , Internet , Record Labels / April 2007

COPYRIGHT  Internet, radio, labels The United States Copyright Royalty Board has made public its increased royalty rates for sound recordings due to artists and labels for tracks used on streaming radio services. The monies will be administered by the collection agency Sound Exchange. Small Internet broadcasters will no longer be eligible for discounted fees (previously 12% of revenues). The new rate of 0.08 cents per track/per play will be retrospective to 2006 and will increase steadily, effectively doubling by 2010 to 0.019 cents. Streaming media companies and online radio stations also have to pay music publishing royalties. Small stations state they will either have to cut back on the music they play or risk going out of business. The Copyright Royalty Board was set up in 2004 to determine royalty rates for webcasters. Some 72M people in the US listen to online radio in the US each month – far ahead of the 14M satellite radio subscribers currently. There are also concerns that a rates rise will also negatively affect satellite broadcasters. They have a different royalty payment system in place with labels currently, but this too is up for renegotiation. radio7mar07,1,6444381.story?track=rss&ctrack=1&cset=true For the actual rates see And see However,…

Court of Appeal confirms the decision of Kitchen J in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219
Copyright / April 2007

COPYRIGHT Video games, television This action revolves around claims by Nova that the defendants copied elements of arcade games it had designed, made and sold. Nova did not accuse any of the defendants of copying the software code of ‘Pocket Money’, but said the defendants infringed their copyright by copying their game’s screen appearance (the ‘outputs’). When asked to identify each particular similarity relied upon and to say how it was the result of an infringing act, Nova served a schedule of similarities and marked up screen shots to identify the relevant features. Kitchin J dismissed all Nova’s claims on the basis that there had been no reproduction of any of its work: * There was no substantial taking of any artistic skill and effort, program code or program architecture and the mere fact that there were similarities in the game’s outputs did not raise an implication that there were similarities in the software. * What had been taken was a combination of a limited number of general ideas that were reflected in the output of the program, but those ideas did not form a substantial part of Nova’s computer program itself. * The visual appearance and the rules of…

Court of Appeal dismisses appeal in Baigent & Leigh v Random House Group Limited[ 2007] EWCA Civ 247
Copyright / April 2007

COPYRIGHT All areas The Claimants in this case were two of the three authors of a book published in 1982, The HolyBlood and the Holy Grail(HBHG). The Defendant is the publisher in the UK of a book written by Dan Brown, the Da Vinci Code (DVC), first published in 2003. The Claimants’ contention is that, in writing DVC, Mr Brown infringed their copyright by copying a substantial part of HBHG in the course of writing six chapters of DVC. The case came to trial over 11 days in February and March 2006 before Mr Justice Peter Smith. In his judgment, delivered on 7 April 2006, he dismissed the claim . The Court of Appeal have upheld that decision although the leading judgment of Lord Justice Lloyd was somewhat critical of the trial judge in places. The case reinforces the position in English law that copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the case law in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side. Where the material copied is…

CDWow! loses parallel importing case
Copyright , Record Labels / April 2007

COPYRIGHT Record labels ARTICLE LINK:  A group of record labels has won its High Court case against online music retailer CD WOW!, which was found to have infringed copyright and been in contempt of court over an earlier order . This from the excellent Out-law site at 

Italian Court imposes heavy sentences for organised piracy
Copyright , Record Labels / April 2007

COPYRIGHT Record labels The Court of Appeal in Naples has imposed heavy jail sentences on members of an organised gang involved in major music piracy. Members of the gang were arrested in 1999 after an investigation carried out by the district anti-mafia attorney, the police and with the assistance of FPM, the Italian music industry’s anti-piracy unit. The head of the organisation, ‘A.C.’, was known as ‘The Emperor’ because of his market share in the pirate music business in Naples during the 1990s. ‘A.C.’ was found guilty and sentenced to three years and six months in jail for conspiracy to violate the copyright law. Seven other members of the gang faced prison sentences of between one year and six months and three years. The judge ordered gang members pay compensation and damages to the plaintiffs which will be agreed in a separate civil claim. 

MPS v Murphy : The Greek Nova TV signal is held to be a UK broadcast – so a publican IS guilty of infringement by showing English football without paying Sky
Copyright / April 2007

COPYRIGHT Television In the March 2007 Law Updates we reported on the case of MPS v Murphy as well as the case of FACT v Gannon. Murphy has now been heard on appeal with the Crown Court finding her guilty under s297(1) of the Copyright Designs & Patents Act 1988. Karen Murphy, of the Red, White and Blue public house in Southsea will face fines and costs of around £12,000. Murphy was found guilty in January of showing Premiership games via Greek satellite channel Nova at her pub. Murphy had been acquitted of the same offence once before because District Judge Arnold found she had not acted dishonestly – because she did not know she was breaking the law. Murphy continued to show the games and was prosecuted again and was found guilty on her second appearance by the same judge. Upholding District Judge Arnold’s decision, HH Judge Iain Pearson told Murphy today that he felt she knew what she was doing was illegal and she was “hiding” behind the legal advice of her solicitor. Judge Pearson, who sat with two lay justices, said: “In our view Murphy hid behind the legal advice as a convenient shield with which to hide her dishonesty .”…

New powers for Trading Standards in copyright infringement
Copyright / April 2007

COPYRIGHT All areas At the moment, only the police have the power to enforce offences under the Copyright Designs and Patents Act 1988. Trading Standards will, as from 6 April 2007, also have powers to enforce copyright offences, including the power to make test purchases and to enter premises to inspect and seize goods or documents. The Criminal Justice and Public Order Act 1994 (Commencement No 14 Order 2007 C27 will now allow Trading Standards Officers to deal with copyright infringements under the CDPA. The powers and duties are under sections 107A and 198A of the CDPA. The Government has promised additional funding for Trading Standards Officers .

London Olympic Act 2006
Media / April 2007

MEDIA All areas ARTICLE LINK  In this article Lee Fisher looks at the (somewhat draconian) measures set out in the London Olympic Act to protect official sponsors and prevent ambush marketing.

DCMA Architect lambasts music moguls
Copyright , Internet , Record Labels / April 2007

COPYRIGHT Record labels, internet ARTICLE LINK: John Leyden, The Register Bruce Lehman, key architect of the controversial Digital Millennium Copyright Act (DMCA), has admitted that copyright protection law is failing. The Clinton-era Assistant Secretary of Commerce and Commissioner of Patents and Trademarks put most of the blame for the DMCA’s shortcomings on the recording industry. Read more here:

Its no knickers – Dame Kiri wins cancellation case
Contract , Live Events / April 2007

CONTRACT Live event industry Opera star Dame Kiri Te Kanawa has won a court case in Australia after she cancelled a 2005 tour because she feared that she would be bombarded with underwear – as the planned co-headliner with Aussie veteran John (‘the Voice’) Farnham. Dame Kiri had seen a DVD of his shows where he caught underwear thrown by fans. Promoter Leading Edge had sued for A$2m (£815,000), claiming it had lost money on publicity costs and ticket sales but New South Wales Supreme Court Judge Patricia Bergin rejected the claim ruling that while there were emails in which venues, fees and air tickets for the proposed concerts were discussed, no firm commitment was made and no contract was finalized. Leading Edge said it had spent more than A$380,000 (£155,000) on preparations for the concerts, only to find that Dame Kiri’s agent former, Mr Grace, knew the singer was wavering on the performances but had failed to pass on the information. However Judge Bergin ordered Mattane, the company that employed Dame Kiri, to pay Leading Edge A$128,063 (£52,000) for costs incurred as the company had not been entirely honest in its dealings with Leading Edge. Comment: This type of case…