Court of Appeal allow appeal against Procul Harum organist Brooker Onward Music v Fisher [2008] EWCA Civ 287

COPYRIGHT Music publishing The Court of Appeal (Lord Justice Mummery, Mr Justice David Richards and Sir Paul Kennedy) has partially allowed the appeal by Procul Harum frontman Gary Brooker against former keyboard player Matthew Fisher. The appeal was against the 2006 decision of Mr Justice Blackburne which awarded Fisher 40% of the music writing royalties of the classic pop song ‘A Whiter Shade of Pale’, the UK’s most popular radio track ever. Whilst the Court of Appeal agreed With Blackburn J that Fisher was a co-author of the work, they held that Fisher’s delay in bringing the case in 2006, 38 years after the track was released, was fatal to his claim for royalties. The Court agreed that Fisher’s ‘Bach inspired’ Hammond organ solo at the beginning of the track was intrinsic to the song’s melody and indeed that Fisher was a co-author of the work and had made a significant contribution – but The Court of Appeal held that by silently standing by and acquiescing in the commercial exploitation of the Work without taking action, Fisher “led [Brooker] to act for a very long period on the basis that the entire copyright in the Work was theirs”.  Mummery LJ said that…

The new PACT-MCPS Independent Production Company (IPC) Licence

COPYRIGHT Television, internet, publishing The MCPS launched its Independent Production Company licence as a mandatory scheme for television producers on 1st August 2007 and has now accepted a number of changes proposed by Pact, the trade association representing independent film and television producers. However Pact advise that the licence does have some elements that may not be entirely welcome to certain producers, and members are advised to consider the licence and the Guidance Note carefully in coming to a decision about taking up a licence.  In particular, the IPC licence contains a clause that requires users to pay licence fees even if the material used is covered by the “fair dealing” copyright rules.  Pact had tried to persuade MCPS to remove this requirement but MCPS has stated that its members insist that such payments are essential if producers wish to have the benefit of automatic clearance for the entire MCSP repertoire. The MCPS scheme is mandatory – MCPS publishers will no longer be in a position to grant music rights individually to producers.  The only alternatives to licensing through the MCPS IPC licence are for a producer to use their own commissioned music, use public domain music or use other…

Warner Music’s Tune of Folly

COPYRIGHT Internet, record labels How will record labels monetise copyright in the future? ARTICLE LINK  C/Net News Editor’s note: Music attorney Chris Castle is all for finding a way to boost the music industry out of its current nosedive. But bundling music charges into ISP bills is not the way to go, he says.   And from the glorious IP Kat an update in this area: It looked like Internet service provider and telecom company Virgin Media was going to become the first UK internet company to crack down on subscribers who download music illegally. While record labels are lobbying for a “three strikes” regime that would see those who collect pirated material disconnected from the internet, Virgin has been working with music trade body BPI on a pilot project which could see “dozens of customers” sent warning letters. This trial will go live within months, with the threat (or “option”) of disconnecting customers who ignore the warnings. The trial is also open to film and television studios. Says the Sunday Telegraph (30/03/08): “This would be the first time a British internet company has publicly moved to share responsibility for curbing piracy. Two years of negotiations between record labels and internet service…

New data law could benefit music pirates

COPYRIGHT Internet, record labels ARTICLE Germany ‘s music industry fears that a new telephone data law could become a carte blanche for Internet users, who download tunes illegally. Until now, they’ve traced music pirates with the help of phone records – this Deutsche Welle article explores the ‘privacy vs property’ tension.,2144,3220471,00.html 

Universal brief says throwing away promotional CDs is “piracy”
Copyright , Record Labels / May 2008

COPYRIGHT Record labels A brief filed by Universal Music Group (UMG) in federal court says that giving away or even throwing out a promotional CD is piracy. The brief was filed in the case of UMG against Troy Augusto (Roast Beast Music Collectibles), an eBay based service that sells collectible promo CDs which are brought at used record stores around Los Angeles and resells them on eBay. Although the CDs have “promotional use only” labels, both he and the EFF (who took his case after UMG sued him) feel that he is covered by the “First Sale” doctrine in US law which allows purchasers of copyrighted material to sell that which they have purchased without violating the copyright laws as the copyright owner has derived all revenue from the so-called first sale, and cannot control the future disposition of the article originally sold. the copyright owner only has right to prevent others from copying and distributing (for free or for profit) copies of a work covered by a valid copyright. UMG argue that each promotional item is a copyrighted work and when they initially are distributed they are not sold – so they technically remain the property of the record…

Bollywood filmmaker pays up for plagiarised song

COPYRIGHT Music publishing A Bollywood filmmaker has been ordered to pay 20 million rupees ($5 million) to a songwriter after the Bombay High Court ruled that Mumbai-based Rakesh Roshan’s film production company Filmkraft had copied fromm a sing by composer Ram Sampath. Sampath claimed two tracks and two remixes from Roshan’s latest film “Krazzy 4” were lifted from a jingle Sampath composed last year for a commercial for Sony Ericsson mobiles. Mr Justice D. G. Karnik ruled that Rakesh and his composer brother, Rajesh Roshan (who composed the “Krazzy 4” soundtrack), were “prima facie guilty of copyright violations and plagiarism,” adding that “to my untrained ear, the music (in the two works) appeared to be similar.” Initially the the court had passed a stay order (injunction) blocking the film’s release until the disputed songs were removed. But that order was lifted and the case dismissed after Filmkraft agreed to pay Sampath damages and give due credit.

The music industry responds to the Gowers report

COPYRIGHT Record labels, music publishing The Music Business Group – which represents a number of music industry associations – including the BPI, AIM (independent labels), MU (Musicians Union), MMF (Music Managers), PPL, BMR (British Music Rights) and the MCPS/PRS – is putting together a united response the Gowers Review of UK copyright law which they will present to the UK Intellectual Property Office today. The document will give the collected music industry’s viewpoint on six recommendations made by Gowers in his 2006 review including the suggestion that consumers should be given the right to make private copies of copyright material they have already legally purchased (the private copying exception) which Gowers supports. The various members of the Group seem to have differing views on this although the possibility of a levy to compensate songwriters, music publishers, record labels and recording artists has been forwarded as one solution. BMR, which lobbies on behalf of composers, songwriters and music publishers, has recently commissioned research that shows s that 95% of the 1,158 UK sample group have engaged in some form of illegal copying and amongst 16-24 year olds home copying – transferring tracks from borrowed CDs to a hard drive, CDR or MP3 player, is the…

Australian police bust music piracy ring
Copyright , Record Labels / May 2008

COPYRIGHT Record labels The Australian Federal Police have busted an international piracy ring that produced and sold pirated music in a clandestine manufacture and export operation from Sydney. In a two day operation that involved executing 11 search warrants across Sydney, the police raided private residences, an optical disc manufacturing plant and several retailers. The police seized thousands of pirated CDs and album covers and charged a 36-year-old man with copyright infringement. He was bailed and will appear before the Central Local Court on May 13. The retailers were selling pirate compilations made by “Fresh off the Boat Entertainment”, which included illegally reproduced songs by artists such as Justin Timberlake, UB40 and Gnarls Barkley. The anti-piracy arm of the Australian music industry, Music Industry Piracy Investigations (MIPI ) helped the police with its investigation, said the pirate compilations uncovered in the Sydney raids had also been found in New Zealand and Pacific Island territories such as Fiji. MIPI and the Recording Industry Association of New Zealand, have begun enforcement action against an importer and CD manufacturing plant that are allegedly stocking and distributing the pirate compilations Criminal penalties for copyright infringement in Australia are up to $60,500 and 5 years…

Zappa Estate take on Zappanale Festival
Live Events , Trade Mark / May 2008

TRADE MARK  Live events  The future of a music festival set up in honour of Frank Zappa is in doubt following a lawsuit brought against the organisers by Zappa’s widow Gail. The Zappanale festival has been running in the German village of Bad Doberan since 1990 as a way of celebrating the records of the avant-garde musician whose records had previously been illegal under the East German Communist regime. Gail Zappa, who formed the Zappa Family Trust in 2002, is demanding that she has a say in which Zappa tribute acts play the event, that the festival’s logo – Frank Zappa’s trademark moustache and goatee – be scrapped, that a statue of the musician in the village be pulled down and that the organizers pay £200,000 for the right to use the Zappa name. Festival organisers counter by saying that they registered the Zappanale mark almost 20 years ago. The Dusseldorf court will consider the dispute. From CMU Daily

“Mr Spicy” trade mark case clarifies law on keyword advertising
Trade Mark / May 2008

TRADE MARK All areas ARTICLE  By Laurie Kaye & Yasmin Joomraty, Laurence Kaye Solicitors Trade mark law is really beginning to get its head around the workings of search engine and the Internet. As you’ll read, a search engine isn’t regarded – at least for UK trade mark law purposes – as “using” (and so infringing) a trade mark when a trade marked term is displayed by a search engine as a sponsored link. The case only concerned the position of the search engine. It didn’t look at the position of the advertiser who bought the search term. Here’s the detail. A recent UK High Court decision, Wilson v Yahoo! UK Ltd, has clarified the law on keyword advertising. The use of keywords for sponsored search results does not amount to trade mark infringement. As such, advertisers who sponsor links prompted by search terms are not at risk of infringing a third party’s trade mark, even if the search terms entered (and subsequent keywords displayed) form all or part of that third party’s trade mark. The claimant in this case, Mr Wilson, owned a community trade mark (CTM) for “Mr Spicy.” When users of Yahoo!’s search engine entered the search terms…