UK brings in new exceptions for private copying, quotation and format shifting
Copyright / November 2014

COPYRIGHT All areas   Revisions to the UK’s copyright law means that consumers can now make back up copies of CDs, MP3s, DVDs, Blu-rays and e-books on local storage or in the cloud – but only of their own copies. The exception to copyright is for personal use, it must be non commercial, and it remains an offence to share the data with friends or family – and the exception does not extend to computer programmes.  It’s still not allowed to circumvent any copy protection on music, movies and ebooks. Recording of streaming media is also forbidden along with making copies of movies or music consumers have rented or borrowed There is a second new exception for quotation that permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). The change to…

SiriusXM gets more bad news
Copyright / November 2014

COPYRIGHT Broadcasting, recorded music   SiriusXM have had some more bad news: A California federal judge had already delivered a “legal earthquake”by finding that SiriusXM had violated the claimant’s (sixties band the Turtles)  pre-1972 master copyrights by playing their music without licensing it or paying performance royalties and now another fesderal judge who had indicated some support for SiriusXM’s decision has now had a change of heart and now is minded to follow the Carifornian court.  Los Angeles Superior Court Judge Mary Strobel is presiding over a similar case brought by Capitol Records and other record industry giants; Judge Strobel had previously expressed her inclination to reject proposed jury instructions offered by the record companies, but now she had a change of heart by granting what the record companies were seeking. “Plaintiffs ask the court to take judicial notice of the order granting summary judgment in Flo & Eddie Inc. v. Siruis XM Radio, Inc,” she writes. “While a federal trial court opinion is not binding on this court, the court finds the logic applied in that order interpreting Civil Code §980 to be persuasive.” A new bill in Congress to apply federal protection for per-1972 sound recordings, called the Respect…

Eminen takes aim over political use of Lose Yourself
Copyright , General / November 2014

COPYRIGHT Music publishing   After the National Party of New Zealand used the Eminem song Lose Yourself  as part of their political campaign, Eminem’s publishers, Eight Mile Style LLC, and Martin Affiliated LLC  filed proceedings for copyright infringement in the High Court of Wellington, seeking damages. Under s.29 and s.32 of the Copyright Act 1994 of New Zealand, copyright in Eminem’s song would have been infringed if the political party played the song in public without having an adequate licence agreement. Joel Martin, a spokesperson of the publishers, said that nobody had contacted them to use the song. If they are found liable for copyright infringement, the National Party risks paying a five-figure sum to Eminem’s publishers. However, the National Party argues that they purchased the appropriate rights to use the music. They bought them from Beatbox (a music supplier based in Australia and Singapore), through APRA AMCOS. APRA AMCOS is the Australasian body that acts as local agents for music licensing companies around the world and is a reputable body. Chris Hocquard, a copyright lawyer from Auckland, said that if the National Party were found to have infringed copyright, they may be able to go back to Beatbox and…

Grooveshark plans appeal
General / November 2014

COPYRIGHT Internet, recorded music   In September 2014 a federal judge in New York ruled that Grooveshark, the controversial online music service, had infringed on thousands of their copyrights. Grooveshark (Escape Media Group) streams music uploaded by its users and Grooveshark’s defence has long been that this is legal under the U.S. Digital Millennium Copyright Act, the federal law that protects websites that host third-party material if they comply with takedown notices from copyright holders. The company relies on advertising for its revenues. Granting summary judgment in a case filed in 2011 by the three major record companies, Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because it was it’s own employees and officers — including Samuel Tarantino, the chief executive, and Joshua Greenberg, the chief technology officer — who uploaded a total of 5,977 of the labels’ songs without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act –  with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.  According to Reuters, evidence against the executives included a 2007…

Music hits the right notes for business success
General / November 2014

COPYRIGHT Music publishing , recorded music   A lot of us seem to pay twice when we listen to music in the workplace  – once because the broadcaster pays a blanket levy to the PPL and PRS for Music – and then again because the owner of a shop, factory, or garage also pays for music in the workplace – even if it’s just for their own staff and not customers. There have been a number of legal challenges to this over the years in the British Courts, including the leading 1943 judgement in Turner v PRS which seemingly supports PRS’s view that “If your staff or customers are listening to music on your premises, played by any means from live performance through to radio, TV, CD or via the internet, you need our music licence”. The battle has extended to a number of decisions in the European Court of Justice which has managed to come to the conclusion that hotels do have to pay for providing music ti their guests – but dentists don’t have to pay! Case law references below. Musicians and writers deserved to be paid. But paid twice? Well, and no doubt with one eye on this argument and the need to…

Dancing Jesus duo plead guilty
General / November 2014

COPYRIGHT Internet, recorded music   Following news that the BPI was taking a case to criminal trial involving the pair behind Dancing Jesus website, the second defendant involved has pleaded guilty to illegally distributing music. Richard Graham, of Leicestershire, originally entered a not guilty plea, but changed it earlier this week after seeing the evidence against him being presented to the judge and jury. His guilty plea follows that of Dancing Jesus’ owner Kane Robinson, of South Shields, who entered his guilty plea in January this year. The UK-based website was taken offline in 2011 after US Homeland Security seized the server on which it was hosted. City Of London Police arrested both the site’s administrator and one of its most prolific uploaders, known as Trix. Although initially subject to a police enquiry, the case was brought as a private prosecution by the BPI on behalf of the recorded music industry at Newcastle Crown Court for the illegal distribution of music via an internet. Commenting on the investigation, the director of BPI’s Copyright Protection Unit, David Wood, said: “This case is significant. The guilty verdict confirms that posting illegal online links to music is a criminal offence, which economically harms…

xx claim rip off by Hugo Boss
General / November 2014

COPYRIGHT Recorded music   XL affiliate Young Turks has claimed that an advert released by Hugo Boss earlier this year contained a soundtrack that sounded very similar indeed to ‘Intro’, a track by one of the label’s bands The xx. The label took to Twitter to ask the German fashion company: “As a firm built around original design, isn’t it odd that you’d pay for such a poorly disguised fake?” The tweet then linked to the Hugo Boss commercial on YouTube. The link to the advert has now been removed from the below article and has been taken down from YouTube due to a ‘copyright claim by UMPI’. Just a couple of weeks  earlier singer and producer SOHN claimed that car manufacturer Audi had used part of his song “Lessons” without his permission in a commercial for their Audi A3 Sportback – or at least used a sound alike re-recording. Previously Beach House had hit out at Volkswagon back in 2012 for a sound alike track and Tom Waits settled with car firm Opel over a sound alike track used in an advert in 2007. The 1988 case of Bette Midler v Ford Motor Co found that hiring a sound…

Jay Z, Chauncey Mahan and a copyright ownership dispute
Artists , Copyright / November 2014

COPYRIGHT Recorded music, artistes   This from the IPKat.   In July this year, Grammy award winner producer and sound engineer Chauncey Mahan launched legal proceedings in the Court of Judge Schofield (District Court of New York, case 14-cv-5075 LGS) against Shawn Corey Carter known by his stage name Jay Z, an American rapper, and Roc-A-Fella records under the Copyright Act 1976.  Mahan claimed that he should be named a joint author and hence a joint owner of the copyright of six Jay Z albums (45 published sound recordings) including 1999’s “Vol. 3… Life and Times of S. Carter” and 2000’s “The Dynasty: Roc La Familia” on which he worked from August 1999 to October 2000. Mahan said he was instrumental in creating the sounds of the releases since all of them were tracked, recorded, edited, arranged and mixed by him at Sony Studios — where he rendered his technical and aesthetic talents without direct or indirect supervision of other putative joint authors. Mahan brought his own digital audio workstation, i.e, pro-tools system, into Sony Music Studios and interfaced his then state-of-the-art equipment with Sony’s built-in technology. However, Jay Z’s stand on this is that Chauncey is “attempting to use…

Juicy J and Columbia face challenge over ownership of video
Artists , Copyright / November 2014

COPYRIGHT Recorded music, artistes   A photographer and a video production company involved in producing Juicy J’s “Bandz A Make Her Dance” music video are seeking damages from the rapper and his record label, Columbia Records. Photographer Mahad Dar and Creative Dream Productions (CDP) have filed a suit alleging copyright infringement. The background shows a somewhat confused filming circumstances environment – there were a number of occurrences that halted and disrupted filming and although CDP secured extras, trailers for artists, and ‘craft services’ for the video in 2012 a misunderstanding over the cancellation of a guest appearance by  Lil’ Wayne, who was to also star in the video, meant that the preferred venue for filming was cancelled. Dar, who was the principal photographer for the video, claims no arrangement was ever made for the use of his images. According to Dar, he is the sole owner of the video footage.   The claimants are seeking injunctive relief and all profits from both the song and the music video which has had over 34 million hits on YouTube.

Music creator group calls a ‘fair trade’ in music streaming

COPYRIGHT Internet, recorded music, music publishing, artistes   A new report launched by the International Council Of Creators Of Music, or CIAM, has called for a more equal distribution of streaming royalties between the respective music rights owners – overhauling of the streaming royalty system which is increasingly seen as favouring record labels above music publishers, songwriters and artistes. CIAM is a global body that sets out to “protect the rights and assert the cultural aspirations of music creators”, while its report also has the backing of CISAC, the global grouping of music publishing collecting societies, as well as Music Creators North America and Canadian collecting society SOCAN. The report was written by Professor Pierre-E Lalonde, and it says: “The split in revenues between the different sets of rights holders is imbalanced. A combination of regulatory constraints, market imbalances and situations where major record labels negotiate with digital services for all categories of rights holders, has led to a significant disparity between the revenues paid to record labels and to creators”. He goes on: “In the business of streaming, the split of monies from streaming platforms is geared more favourably towards record labels and performers vs songwriters and music publishers”,…

EMI Publishing faces another lawsuit on foreign royalties from ‘Daydream Believer’ songwriter whilst War declare, well, war.
Contract , Music Publishing / November 2014

CONTRACT Music Publishing   Last month we commented on the how the estate of Duke Ellington is hoping to resurrect a royalties lawsuit against EMI Music Publishing, (now controlled by Sony/ATV)  after a lower courts sided with the music company in the legal dispute – seeking to establish that EMI had artificially reduced the royalties received by the entity Ellington had signed to as a songwriter by using its own subsidiaries to siphon off royalties. That claim has now failed again after an appellate court held that the copyright renewal that Duke Ellington signed in 1961 does not unfairly deprive his heirs of a portion of foreign royalties on works such as “Mood Indigo” and “Sophisticated Lady“. In Ellington v EMI Music, The New York State Court of Appeals ruled 5-2 that while changes in the music industry over the past 53 years have tended to make the contract and others signed in that era by artists like Ellington more favourable to music publishers, “clear and unambiguous” provisions govern EMI’s obligations to Ellington’s grandson Paul Ellington and the composer’s other survivors. Judge Sheila Abdus-Salaam, writing for the majority, said a plain reading of the contract says Ellington or his heirs are…

Toto lose digital royalty battle
Artists , Contract , Copyright , Music Publishing / November 2014

COPYRIGHT / CONTRACT Artists, recorded music   Sony Music Entertainment does not owe digital music royalties to the rock band Toto, best known for its 1980s pop hits “Rosanna” and “Africa,” a federal judge ruled. Toto was dissatisfied with the terms of a $8 million class action settlement that their fellow bands The Allman Brothers Band, Cheap Trick and other recording artistes reached with Sony two years ago over digital music download and streaming royalties, Rolling Stone reports.  Its auditor claimed that Toto deserved “50 percent net receipts” on digital downloads. The band reunited in 2010, and two years later sued Sony in the federal court, seeking $605,000 in compensatory damages for breach of contract and other claims. During discovery, the parties “put music executives on the hot seat”, but also reportedly quibbled over whether a “lease” and “licensee” agreement applied to their contract. Toto contended that the words meant the same thing, but Sony disagreed. U.S. District Judge Richard Sullivan turned to Black’s Law Dictionary and Webster’s Dictionary before ultimately siding with Sony on this issue. “[T]he dictionary definitions of the terms reflect that they are not synonymous, with ‘lease’ generally pertaining to rights in real or tangible property, and ‘license’…

Heartbroken – without your cash. Big hit helps Judge make decisions hitting big topics
Artists , Copyright , Music Publishing / November 2014

COPYRIGHT Recorded music, artists This update By Leeza Panayiotou, LLB(Hons)   In Henderson v All Around the World Recordings Ltd [2014] EWHC 3087 (IPEC), the Claimant Jodie Henderson’s damages were assessed to be a total of £35,000.00. But it’s the result of a fairly long process and  it’s interesting to see how the court reached this decision and quantum. The year was 2007 and Jodie Henderson (aka Jodie Aysha) and Tafazwa Tawonezvi (aka T2) charted at No.2 in the Singles Chart for 5 weeks and stayed in the Top 40 for over 40 weeks with the track ‘‘Heartbroken’’. Despite such success however, Henderson was never remunerated for her performance on the track, her appearance in the music video or for the use of her name. Though Henderson penned the lyrics herself several years before the tracks release (and she is now signed to Sony ATV music publishing), it was Tawonezvi who remixed the track into its ‘Bassline’ state (arguably the reason for the track’s mainstream success at the time). Tawonezvi had signed a deal with 2NV Records Ltd, presumably in recognition of his talents as a producer and DJ, and this paved the way for 2NV Records to sign a…

Newstead Town Ordinance shuts rock venue
Licensing , Live Events / November 2014

LICENSING Live events   “All is quiet in the rural community of Newstead, but this past summer, the rural, Western New York community served as a battleground in what has become a war on noise.” A fascinating battle has evolved in a war between local residents, and a local bar and grillw hcih opened a new music venue, Braun’s Concert Cove. The outdoor stage, in a structure said to resemble an aircraft hanger, has put on shows from several hard rock acts with audience numbering in the thousands for Ted Nugent, Yngwie Malmsteen, Pop Evil, Sebastian Bach and  Jackyl. But.on September 6th this year,  Winger played Braun’s last concert. It was under a contract already negotiated before “Braun’s Law” was finally passed by a rather split Town Board – and Newstead brought in a noise ordinance outlawing noises louder than 80 decibels after 9 p.m., and 65 decibels after 11 p.m.   More from Michael Hallisey on UpstateLIVE here

Japan to lift notorious “No Dancing” law
Licensing , Live Events / November 2014

LICENSING Live events sector Japan’s law, which prohibits dancing in clubs and bars (or any public venue, really) has unless they have a (still limited) dancing license were allowed to carry on, and even then, doors had to close by midnight or 1AM. The law, called fueiho in Japanese, will now be revoked. Their decision comes on the heels of a committee recommendation earlier this year, and will need to be ratified by Japan’s parliament – but in plenty of time for the 2020 Tokyo Olympics! And see MLU July 2014

Date set for fresh Citigroup – Terra Firma battle over EMI
Music Publishing / November 2014

CORPORATE LAW Recorded music   The battle over Citigroupo’s role in Terra Firma’s takeover of EMI is set to head back to the courtroom. The legal dispute went before a court in New York in 2010 and Citigroup prevailed but the appellate court ordered a new trial on the basis that some specifics of English law – which governed the acquisition – had not been properly explaining in the New York courtroom. It was (finally) agreed by both Terra Firma and Citigroup to move the dispute to the London courts and a date has been set for that hearing in June 2016. Confirming the trial date, Judge Julian Flaux said: “Serious allegations of fraud are made against the defendant and against three individual bankers”.

NFL bans Beats on the box
Trade Mark / November 2014

TRADE MARK Branding   In the USA the NFL has announced that it is banning football players from wearing Beats headphones on camera during broadcasts of its American football games. The announcement follows a new sponsorship deal with rival hi-fi equipment manufacturer Bose. A NFL spokesperson told Re/code: “The NFL has longstanding policies that prohibit branded exposure on-field or during interviews unless authorised by the league. These policies date back to the early 1990s and continue today. They are the NFL’s policies – not one of the league’s sponsors, Bose in this case. Bose is not involved in the enforcement of our policies. This is true for others on-field” although the NFL confirmed that under terms of its agreement with the league, Bose received a broad set of rights that entitle it to prevent players (or coaches) from wearing any other manufacturer’s headphones during televised interviews. The first fine has been handed out:  49ers quarterback Colin Kaepernick, who is paid to endeorse Beats by Dre, wore his Beats headphones during a postgame press conference, and the league punished him with a $10,000 fine.

Is This Henley a Shirt or a Musician?
Artists , Trade Mark / November 2014

TRADE MARK Artistes, merchandise By Marie-Andree Weiss writing on the IPKat   Don Henley, a member of the Eagles music band and also a solo musician, is suing clothing retailer Duluth Holdings in the CentralDistrict Court of California, alleging that an advertisement created by Defendant is an infringement of his trade marks and right of publicity and is also false advertising. The advertisement at stake shows a drawing of two tee-shirts known as “henley,” side-to-side, with the phrase “Don A Henley AND Take it Easy” printed on the left of the ad. A henley tee-shirt is a tee-shirt which does not have a collar but has a front placket closing with several buttons, generally three. I read on the Web that the term “henley” originates from the town of Henley-on-Thames, as rowers practicing there in the 19th century sported such shirts, but I cannot assert that this really is the origin of the term. “Take It Easy” is a colloquial expression, often used in the U.S. as a way to say good bye and is also the title of the Eagles’ first hit single. It is featured on the Eagles album Their Greatest Hits 1971-1975, which is, according to the Complaint, the bestselling album of all time in…

Security man sues Kiss over concert slip
Health & Safety , Live Events / November 2014

HEALTH AND SAFETY Live events sector   Timothy Funk, a security guard at the 25,000 capacity Klipsch Music Centre in Noblesville is suing the venue and the rock band KISS , their bassist Gene Simmons, his company and promoter Live Nation over claims that he suffered an injury after the band “foolishly sprayed the stage with water and confetti” on the 1st September 2012. Funk is seeking damages for injury and loss of wages and costs after falling on the ‘slippery, waxy and glassy’ stage.

Ultra security guard sues over collapsed fence injuries
Health & Safety , Live Events / November 2014

HEALTH & SAFETY Live events sector   A security guard injured when gatecrashers pushed down a perimeter fence at the Miami edition of the Ultra festival earlier this year has filed legal proceedings seeking $10 million in damages. Defendants include Ultra and its parent company Event Entertainment Group, the city of Miami, the firm handling security at the festival, and one of the concession operators at the event. Erika Mach suffered two skull fractures and a broken leg when fencing was pushed over. City officials subsequently said they’d warned festival organisers that the particular area of fencing that Mach was guarding was in risk of collapse if targeted by gatecrashers, leading to Miami mayor Tomas Regalado threatening to block future Ultra festivals in the city. According to Billboard, Mack alleges that inappropriate fencing had been used in that zone because the concession company also targeted in the lawsuit had requested a less severe kind of barricade to make it easier for them to access the festival site.

Theatre fall leads to prosecution and civil claim
Health & Safety , Live Events / November 2014

HEALTH & SAFETY Live events sector   A award winning theatre company faces a ‘substantial’ fine after a stage hand was left paralysed after walking through an unmarked “Juliet” door and tumbling 10ft onto the stage below. Rachael Presdee, 38, spent six months in hospital and was left paraplegic following the accident at Soho Theatre in central London, Westminster Magistrates’ Court heard. She is now wheelchair-bound and, unable to continue her career in theatre, has returned to her native Australia. The Soho Theatre Company Ltd pleaded guilty to Section 3 of the Health and Safety at Work Act for failing to protect the safety of visiting production staff, and to Regulation 3 of the Management of Health and Safety at Work Regulations for failing to identify and manage the risk to which such persons were exposed. The prosecution was brought by Westminster City Council Miss Presdee was working backstage on a 2012 production of Boys. The court heard Miss Presdee was adjusting the stage lights for an evening performance when she walked through the unlocked door – traditionally used for the balcony scene in Romeo and Juliet – into “thin air”. The door had been identified as a potential safety…

Pras sues New York Post over cancelled benefit gig allegation
Artists , Defamation / November 2014

DEFAMATION Artistes   One time Fugee Pras Michael is planning to  issue proceedings against the New York Post after the newspaper accused Pras of bailing on a “9/11 benefit concert” organised by his own charity, the Hope For Them Foundation. The article also apparently claimed that the Foundation had bounced a cheque to the venue, had falsely claimed its event was sponsored by MTV, and isn’t properly registered as a charity with state officials. But it seems the newspaper has added to the confusion as the benefit, whilst on the 11th September, was not actually a benefit related to the attack on the Twin Towers. Lawyers for Pras have also said he was not a board member for Hope For Them Foundation and the charity itself said “Pras is a good friend of the organisation and supports our cause but is NOT a board member”. A claim for $30 million in damages will be filed.

eBay judgment forces a Waken ticket rethink
Live Events / November 2014

TICKETING Live events sector   A decision in a dispute between eBay and German soccer team over the re-sale of personalised tickets which was favourable to the online retailer has prompted the organisers of Germany’s Wacken Open Air heavy metal festival to think again about personalising their tickets in 2015. Waken also had a trial pending with eBay over the re-sale of their own tickets, currently personalised, Lamenting a set back in the fight against ticket touts, Thomas Jensen from W:O:A promoters ICS explained that the same judge was hearing the W:O:A case – and the judge has previously decided  held that platforms such as eBay do not have to delete offers of the sale of personalised tickets from their sites.  Earlier this year secondary ticketing site Seatwave agreed with German promoters association BDV to remove personalised tickets from six Robbie Williams concerts from it’s site. Nick Huper from W:O:A explained that “There´s no law in Germany regarding personalized tickets, reselling personalized tickets, offering personalized tickets or jurisdiction”. W:O:A obtained an interim order against eBay at the District Court in Hamburg to delete all offers regarding W:O:A tickets in 2014 on the basis that personalized tickets aren´t a tradeable good…

Irish minister rejects Irish music quota for radio
Competition / November 2014

COMPETITION Broadcasting   FRENCH-style radio quotas for Irish music could contravene European law, Irish Minister Jan O’Sullivan has insisted. The minister  was responding to Labour colleague Deputy Willie Penrose, who was speaking in the Dail in support of Limerick songwriter Johnny Duhan’s call to set aside a minimum amount of airtime to Irish acts. Deputy Penrose said: “It is well argued by Mr Duhan that we are more vulnerable than any other EU country as we are very near England, and as many of our singers generally sing in English we are more exposed and susceptible to the cultural influence of England and the US than any of our EU partners”. Responding the minister said that while the government supported the promotion of Irish music, its approach had to be “consistent with EU and Irish regulatory structures”.