More on US copyright and retransmissions
Copyright , Internet , Music Publishing / December 2014

COPYRIGHT Internet, sound recordings   The introduction of so-called geo-fencing technology has become the next technological development to call into question the meaning behind US copyright law. This time, the question is whether webcasts which are limited in transmission area by geo-fencing, are subject to licence requirements or royalty payments for performance of sound recordings under the US Copyright Act. Confirmation is sought by Verstandig Broadcasting – the owner of several FM stations in Virginia. Under the Copyright Act, a webcaster is bound to pay royalties for sound recordings performed in their webcast. Although broadcasters are exempt from paying these royalties in relation to their broadcast programming, they are not when retransmitting the performance over the Internet. Under a narrow exception at s114(d)(1)(B)(i) of the Act, retransmissions are also exempt, if the radius of the transmission is no further than 150 miles from the broadcast transmitter. Geo-fencing allows a webcaster to set boundaries on the accessibility of their webcast depending on the physical location of the recipient (based on the recipient’s computer’s IP address, WiFi, GSM access point and GPS coordinates). The technology was largely developed to help internet gambling operators, as individual US states gradually liberalise gambling within their…

Turtles’ pre 1972 copyright victory opens up a can of worms for broadcasters

COPYRIGHT Internet, broadcasting, recorded music   The Turtles, the 1960s pop band,  have  won a second victory against SiriusXM Holdings Inc. U.S. District Judge Colleen McMahon in Manhattan rejected Sirius’ request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band, best known for the hit “Happy Together” without permission or paying royalties. She said that unless Sirius raises any factual issues requiring a trial by December 5th, she will rule outright for the plaintiff, Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman, and begin to assess damages. The Judge said “Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed…. That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded…

Marvel man wins against Killah

COPYRIGHT Recorded music,   Jack Urbont, who created music for ‘The Marvel Super Heroes‘ television show in the ’60s has won a lawsuit over sampling. The three-year-old copyright infringement lawsuit brought by Urbont against rapper Ghostface Killah ended with a New York judge entering a default judgment in favour of the plaintiff. According to Urbont’s 2011 lawsuit, Ghostface Killah (real name: Dennis Coles) sampled the “Iron Man Theme” on two tracks of the rapper’s second album, Supreme Clientele. It was no easy matter suing Wu-Tang Clan member Coles – initially he could not be located and the court allowed service by a publication notice – and then his lawyer requested permission to withdraw from the case on the grounds he hadn’t been paid and that his client refused to communicate with him. Ghostface then failed to show up for a deposition, which led to a warning from the judge about sanctions and a default judgment. With Coles still AWOl,  Urbont sought a default judgment as well as fees and expenses, and this was granted by U.S. District Judge Naomi Buchwald. Urbont’s attorney Richard Busch said “As far as Mr. Coles (Ghostface) is concerned, we will now submit evidence on damages to establish…

TPB’s Fredrik Neij finally detained
Copyright , Internet / December 2014

COPYRIGHT Internet   The Times reports that one of the world’s ‘most wanted hackers’ has been arrested. And who is it? Well none other than Fredrik Neij, one of the four men who created The Pirate Bay. Neij was arrested crossing from Laos into Thailand, seemingly by Thai immigration officials responding to an Interpol arrest warrant. Local reports say that whilst living in Laos with his wife, he also had a home on Phuket and had financial assets of £95,000 as a cash balance. He was the last remaining convicted Pirate Bay man at large. He and his co-founders Gottfrid Svartholm Warg and Peter Sunde were found guilty of multiuple contributory copyright infringement in the Swedish courts in 2009. After a lengthy appeals process (with Svartholm not even showing up for appeal hearing) all but Carl Lundström – the fourth member – went on the run –  Lundström having negotiated down his sentence to house arrest. Svartholm Warg made it to Cambodia, but was recently extradited to Denmark on serious hacking charges (against the Police) and sentenced to three years and a half in prison.  In June Peter Sunde was arrested in southern Sweden. Sunde had been living in Berlin, Germany, seemingly without a…

Dancing Jesus pair receive prison terms

COPYRIGHT Internet, recorded music   The two men behind the Dancing Jesus file sharing forum have been sentenced to prison terms. Kane Robinson, 26, of North Shields, the site’s owner and creator, was sentenced to 32 months and 22-year-old Richard Graham, from Leicestershire, to 21 months at Newcastle Crown Court. Graham, who uploaded 8,00 songs to the site, had earlier pleaded not guilty but changed his plea to guilty when the evidence was presented.. The two men were subject to a private prosecution led by record industry trade body the BPI after an investigation by the City Of London Police. Robinson pleaded guilty to copyright crimes before trial. Of the 8000+ tracks Graham shared via the Dancing Jesus site, about two-thirds were pre-release.  Commentators said that the sentences were similar to those found in criminal copyright convictions relating to the manufacture and sale of bootlegged CDs or DVDs. Commenting on the sentences, David Wood, Director of the BPI’s Copyright Protection Unit, told reporters: “Today’s sentencing sends a clear message to the operators and users of illegal music sites that online piracy is a criminal activity that will not be tolerated by law enforcement in the UK or overseas. Piracy –…

Oister Oi! A small episode of infringement
Copyright / December 2014

COPYRIGHT Recorded music, advertising   This update comes from the 1709 copyright blog and examines litigation in Denmark before the splendidly-named Maritime and Commercial Court in which a production team and reggae band sued an advertising agency and a mobile broadband provider for copyright infringement involving a very short snippet of work. The defendants initially asked the claimants to produce both text and music for a commercial. This was done; the defendants approved the material and a deal was struck between them which expired in February 2013. Some time after the expiry of the agreement, the defendants produced a new commercial which, said the claimants, used a three-note music sequence and the words “oister oi” which infringed copyright in the work originally produced under the agreement. The defendants denied any infringement, saying that the text merely consisted of the broadband provider’s name, Oister, and the word ‘oi’ [apparently ‘hello’ in Portuguese: can someone verify this?], and the music was only three notes taken from a whole piece. The court ruled that, when assessing whether the fragment “Oister Oi” was protected by copyright, the text and music must be evaluated as a whole and had to have an overall level of…

Space oddity back online
Copyright , Music Publishing / December 2014

COPYRIGHT Music publishing   Astronaut Chris Hadfield’s “goosebump-inducing” cover of “Space Oddity?” which had amassed 23.4 million hits before it was taken down from YouTube is back online after  Hadfield secured fresh permission from Mr Bowie’s representatives to use the extra-planetary recording, which was made aboard the ISS at an elevation of 250 miles (400 km), after a five month hiatus. Bowie himself loved it, posting on Facebook that it was “possibly the most poignant version of the song ever created” and an initial one-year agreement which has now been extended after a “careful and exacting” legal process with Hadfield saying “And now, we are so happy to be able to announce that my on-orbit cover of Space Oddity is back up on YouTube. This time we have a new 2-year agreement, and it is there, for free, for everyone. We’re proud to have helped bring Bowie’s genius from 1969 into space itself in 2013, and now ever-forward. Special thanks to Onward Music Ltd, to the Canadian Space Agency and NASA, to musicians Emm Gryner and Joe Corcoran, to videographer Andrew Tidby, to my son Evan, and mostly to Mr. David Bowie himself. For the countless others who have helped work to bring about…

Ek talking up Spotify in battle with Swift

COPYRIGHT Recorded music, internet   Spotify’s Daniel Ek has responded to Taylor Swift and other critics in a lengthy blog post reigniting the debate prompted by Swift pulling her catalogue from free (freemium) streaming services. Ek begins by saying “Taylor Swift is absolutely right” (referring to remarks the singer made in a Wall Street Journal  and Yahoo interview) adding “Music is art, art has real value, and artists deserve to be paid for it. We started Spotify because we love music and piracy was killing it. So all the talk swirling around lately about how Spotify is making money on the backs of artists upsets me big time”. Ek then detailed how the Spotify payment model works and revealed that Spotify has now paid out $2 billion to the music industry since launching in 2008, $1 billion of that in the last year and that Spotify now has 50 million active users, 12.5 million of whom are paying subscribers – an increase of ten million and 2.5 million respectively since the last lot of official figures released back in May of this year. However Ek somewhat failed to address why a relatively small share of these streaming royalties are shared…

Federation of Small Businesses says concerns remain with public performance licensing

COPYRIGHT Live events sector, retailing, music publishing, recorded music   The Federation of Small Businesses has said that the music industry’s performing right collecting societies still have some way to go in improving the way they work with small to middle sized enterprises, despite acknowledging some improvements in recent years. The UK government has, in recent years, put some pressure on collecting societies including PPL and PRS for to adopt ‘minimum standards’ of service to licensees and both PPL and PRS had already updated their own codes of conduct to bring them in line with post-Hargreaves standards back in 2012. But citing its own research, the FSB said last week that it had found nearly a quarter of its members with a collecting society licence had made a complaint of some sort about the collective licensing system. The Federation added: “The findings also show the lack of progress towards achieving greater transparency and simplicity of charges over the past twelve months. Without such progress, trust amongst small businesses in the current system will be undermined”. FSB National Chairman John Allan told reporters: “Although collecting societies have a strong code of conduct in place, we are not convinced they are making…

Rolling Stone’s Australian tour cancellation claim in dispute
Contract , Live Events / December 2014

CONTRACT Insurance, live events   L’Wren Scott’s tragic and unexpected suicide prompted the Rolling Stones to cancel a number of Australian dates and resulted in a claim against the bands $23.9 million insurance policy. As Mick Jagger’s partner, Scott was named in the policy which would have covered cancellation in the event of the death of close family members of the band and indeed possibly senior tour personnel and the tour cancellation occurred after Jagger was “diagnosed as suffering from acute traumatic stress disorder” and advised by doctors not to perform for at least 30 days. However, reports in early November said that underwriters apparently argued that Scott might have been suffering from a pre-existing but undeclared mental illness at the time the insurance policy was agreed, which would, they argued, render cover in relation to her death invalid. It emerged that the insurers then refused to pay out $12.7 million on the claim – resulting in a further legal claim in the London courts by the band.  However the matter came to wider attention because of legal efforts in the US by the insurers to gain papers relating to Scott’s mental health prior to her death. According to The…

Gaga scout nets $7.3 million
Artists , Contract / December 2014

CONTRACT Artistes   Wendy Starland has won $7.3 million from Lady Gaga’s former producer Rob Fusari after a US court ruled yesterday that Fusari had broken an agreement to split his earnings from Gaga with Starland, the talent scout who discovered the Poker Face star. Starland was tasked by Fusari to find “the female equivalent to the lead singer of The Strokes” in 2005. She eventually discovered 20 year old singer Stefani Germanotta and introduced her to him. The singer and producer then began working together, eventually developing her into Lady Gaga.. Fusari himself sued Gaga in 2010, claiming that he was due a bigger cut of her income than what he was already receiving for production credits on her first album. The pair eventually reached an out-of-court settlement. Some of the details from the current case and Fusari’s own case have been kept confidential by the courts after Gaga asserted that information in papers relating to the case was “sensitive, private and personal” and would “inflict significant personal and professional harm upon” her if it was made public and whilst a partial seal was granted, details of the singer’s deposition in the current case, given in September, were made4…

UK’s anti tout law moves forwards
Consumers , Live Events / December 2014

CONSUMER LAW Live events sector   The UK’s House Of Lords has voted to include a new clause in the Consumer Rights Bill that would force people touting tickets online to provide buyers with  extra information, a move designed to make it clearer who exactly it is reselling tickets, how big a mark-up is being added, and what the risks are to the consumer by buying tickets on the secondary market. The amendment stems from a report published by the All-Party Parliamentary Group On Ticket Abuse back in April, which hoped to speed up the prospect of some ticketing touting regulation by amending the in-development Consumer Rights Bill, rather than having to promote bespoke ticket touting legislation to government or via a private members bill. The amendment, which was approved by a small margin – 183 votes to 171 by the Lords with cross party support  – would oblige a ticket seller using a resale site like Viagogo, Seatwave or StubHub to reveal their identity, declare the face value of tickets they are selling, provide seat numbers and booking references associated with the ticket, and state whether the terms and conditions of the ticket being sold give the promoter the…

Tennessee’s anti scalping laws have never been used
Competition , Live Events / December 2014

COMPETITION Live events sector   For six years, Tennessee has had a law making it illegal to use special computer software – bots – to buy large quantities of tickets to popular concerts and sporting events. But despite the apparent prevalence of the practice, no one has been prosecuted for this hard-to-prove crime in Davidson County according to records obtained by the Tennessean from the Davidson County Criminal Court Clerk. Whilst artists and promoters have to  resort to ticket limits and paperless ticketing, which required the purchasing credit card and matching photo identification to get into some shows, large numbers of tickets showed up on ticket resale sites the. It seems enforcing the law is complicated for a variety of reasons, including highly sophisticated software that scalpers use to crack computer systems that companies such as Ticketmaster use to sell tickets. There are also jurisdiction issues because sometimes out-of-state scalpers will target shows in Tennessee despite a law which says that it is illegal to own, use or share bot software and that violation of the law is a class A misdemeanor punishable by $500 per ticket, or any profits made from each instance, whichever is higher. There have been…

Legal threats to women in Iran for singing and playing music
Censorship , Live Events / December 2014

CENSORSHIP Live events sector Women in Iran are being threatened with legal action for singing or playing music in the latest clampdown on civil liberties within the religious dictatorship. A group of members of parliament in Iran have called for tougher action against women flouting the law. The spokesman for the parliament’s Security Commission Hossein Naghavi said in an interview with the state-run Mehr news agency: “If government officials do not take into account the remarks by the lawmakers, parliament will use its legal powers to address this problem.” “Women singing or playing a musical instrument is contrary to beliefs and religious values and in many cases, these prohibitions are not respected in this country.” The clerical regime has stepped up restrictions against women’s participation in the arts in recent months, cancelling concerts for having women musicians performing or for the use of the term ‘concert’.

Bahrain clamps down on unlicensed music and dancers
Licensing , Live Events / December 2014

LICENSING Live events sector   A total of 28 four-star hotels in Bahrain have had a music ban imposed on them after the Culture Ministry found them to be violating the law that regulates tourism activities. The ban, which also includes hiring dancers and music bands, will be for one month, according to Gulf Daily News. Culture Ministry assistant undersecretary for tourism, Sheikh Khalid said the ban comes after numerous breaches of the law, despite repeated warnings and meetings with representatives of the hotels, according to the report. “The decision was taken after surveying 154 violations at 28 four-star hotels despite repeated warnings since 2013,” Sheikh Khalid said. In a statement to Bahrain News Agency, he said the hotels that breached the law had transformed restaurants and cafes into discos and dancing floors, hired so-called singers without licences and exceeded the legal work timing which represented an affront to the Bahrain’s social traditions.

“Anti lout’ law used to ban gathering
Licensing , Live Events / December 2014

LICENSING Live events sector   A new ‘anti-lout’ law to stop large mobs of people gathering will be used for the first time to ban 500 boy racers from meeting at a retail park. The Public Spaces Protection Order, which became law on 20 October, gives town halls sweeping new powers to outlaw any activity which may have a ‘detrimental effect’ on the quality of local life.  The Daily Mail reports that “Initially intended to clamp down on antisocial behaviour such as begging and spitting, council officers can put up signs banning an activity in a specified area, either round the clock or during specific hours.” Anybody flouting the order will be liable for an on-the-spot fine, normally ranging from £70 to £100, issued by a police officer, PCSO, council worker or private security guard employed by the local Town Hall. Colchester Council, in Essex, plans to become the first to use the law to make the car park at Turner Rise Retail Park in Colchester the subject of the Public Spaces Protection Order. It will be the first time the new order has been imposed, and it will outlaw non-customers from the car park between 6pm and 6am. It…

Police to investigate ‘fake objections’ in cancelled Garth Brooks saga
Licensing , Live Events / December 2014

LICENSING Live events sector   A file has been sent to the Director of Public Prosecutions in Ireland following the cancellation of the series of Garth Brooks concerts at Dublin’s Croke Park. Whilst Dublin City Council were prepared to licence three of the concerts planned for the July 25-29 block, they were not prepared to licence them all and Brooks took a ‘all or none’ stance resulting in the cancellation. The Council had based their decision on the ‘unacceptable level of disruption’ the run of shows would have on local residents and businesses – but it now seems that some of the 384 objections received from local residents may have been fake – with promoter Peter Aiken, who lost over E1 million in the debacle, saying some 40% of the objections were suspect. The Council confirmed that police investigations of a sample of 200 objections showed that 64% were ‘not suspect’.   Audience magazine Issue 178 November 2014

Rappers album content leads to criminal charges
Artists , Criminal Law / December 2014

CRIMINAL Artistes   HipHop Dx reports that rapper Tiny Doo is facing criminal charges because his “No Safety” album implies that the rapper has gang ties. Doo (Brandon Duncan) is charged under laws that make it an offence to benefit from the violent actions of fellow gang members. According to ABC 10, whilst Duncan has no criminal record,  he and 14 other members of the gang are being charged for being involved in nine shootings since April 2013. Prosecutors are saying that Tiny Doo’s “No Safety” album sales have been supported by the reputation of the gang. This is the first time the law is being put into effect.  The No  Safety cover artwork features a gun and bullets. The lyrics discuss themes such as selling drugs, killing foes and making a better life for his family. Duncan’s attorney, Brian Watkins, says that there is no reason for his client to be charged saying “He has no criminal record. Nothing in his lyrics say go out and commit a crime. Nothing in his lyrics reference these shootings, yet they are holding him liable for conspiracy. There are huge constitutional issues.” Law professor Alex Kreit added “The Constitution says it can’t…

Universal flexes Motown muscle
Live Events , Trade Mark / December 2014

TRADE MARK Live events sector   At least two Motown tribute acts who perform songs that originated with the legendary label and which use the record company’s name as part of their stage name have been threatened with legal action by Mowtown’s owner, Universal Music, According to The Stage, The Magic Of Motown and Motown Magic have both been told that they must change their names, hand over web domains and meet legal costs, or face legal action. Universal lsay that the acts are infringing trademarks by using the ‘Motown’ word while operating “in the same field as our client and hence there is a commercial conflict”. It is thought that the action has been prompted by the launch of ‘Motown The Musical’ – created by Motown founder Berry Gordy Jr and featuring songs made famous by his now Universal-owned label (and with official show merchandising sold by Universal’s Bravado) – which will arrive in London next year. Ashley Blake of Motown Magic told The Stage: “They have never complained before, but then a musical about Motown is announced and suddenly they are clamping down”. He also claimed that, under the major’s terms, once they’d changed their name the band…

Industry seeks judicial review for new private copy exception
Copyright / December 2014

COPYRIGHT All areas   As expected, the UK music industry is set to fight the private copy exemption added to British copyright law earlier this year through the courts. On 1 October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force. This introduced the UK’s private copying exception, as contemplated by Article 5(2)(b) of the Copyright Directive (2001/29/EC). At its heart, the purpose of the UK exception was said to be to legitimise format-shifting i.e. it allows consumers to copy music from their CDs onto their MP3 players (which, as you may well be thinking, people have been doing for years anyway, regardless of lawfulness) although it also covers cloud lockers and other types of personal copying. The Government now faces judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians’ Union (MU) and cross industry group UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, the government has introduced the exception without means of ‘fair compensation’ for musicians, composers and rightholders, as required by the Copyright Directive….

Power says PRS injunction against him set aside
Copyright , Live Events / December 2014

COPYRIGHT Live events sector   Vince Power has said that the injunction issued against him as a result of legal action by the music publishing sector’s collecting society PRS has been set aside in court. PRS had claimed that Power’s Hop Farm festival operated without a licence from the society between 2009 and 2012. The company that operated the Hop Farm event during that time, Music Festivals plc no longer operates but PRS argued that Power should be held personally liable for the unpaid royalties as the person in control of the company at the time. Power didn’t respond to PRS’s lawsuit and the courts ruled against the promoter by default, ordering him to pay the society’s legal costs and to settle the case against him. It was reported at the time that Power had been banned from playing music in public until he updates his licences. He will also have to cover the £7,987 in legal costs incurred by PRS. Power argued that he had not been aware of the PRS’s litigation against him, and had never been formally served papers and the promoter sought to have the injunction set aside and, according to Power’s spokesperson, that has now…

Eagles take action against unauthorised screenings
Copyright , Live Events / December 2014

COPYRIGHT Live events sector   Don Henley and Glenn Frey of The Eagles have launched legal action against a man they say screened bootlegged live footage of the band at a ticketed event in October without permission. According to New York Daily News, Henley and Frey filed a lawsuit in New York, claiming that Frank Shelley was using the film to “bolster his reputation as a purported music industry ‘insider’ with close connections and ties to many classic rock greats”. They add that they have previously sent cease-and-desist letters, with which Shelley had refused to comply.