Digitally re-mastered tracks are NOT pre-1972 copyrights
Copyright , Music Publishing / July 2016

COPYRIGHT Recorded music   The Turtles may have done well in battering Sirius XM’s attempts to avoid paying royalties for the use of pre-1972 copyrights, but now CBS Radio has advanced an interesting new argument on the same topic – and a California judge has handed down a big ruling that could help “immunize” terrestrial radio operators and others from lawsuits and “upend many preconceived notions about copyright”. The decision from U.S. District Court Judge Percy Anderson comes in a dispute between ABS Entertainment, owner of recordings by Al Green and others, and CBS Radio, and was based on the concept that pre-1972 songs are protected under state law rather than federal law,  and therefore can’t be broadcast without permission (and payment). In reaction to the ABS lawsuit, CBS tried out a new response – it was not performing the original analogue recordings, but rather NEW digitally remastered versions that came out after 1972. Under this argument, the specifically performed works aren’t protected by state law, and CBS doesn’t have to pay. And the court agreed. More on Billboard here

German Constitutional Court sends sampling saga into another loop
Copyright , Music Publishing / July 2016

COPYRIGHT Recorded Music   By Mark Schweizer In 1997, German music producer Moses Pelham took a two second sample from Kraftwerk’s 1977 song “Metall auf Metall” and used it as a continuous loop for the song “Nur mir” performed by Sabrina Setlur. In 2004, Kraftwerk sued Pelham for violation of their phonogram producers’ rights and obtained an injunction against the distribution of “Nur mir”. The case went all the way to the Federal Court of Justice (BGH), which held in 2008 that even sampling the “tiniest sliver” (“kleinste Tonfetzen”) of a record infringed the record producer’s right (§ 85(1) German Copyright Act). The defence of Article 24 Copyright Act (Freie Benutzung) was in principle applicable, but required that it was not possible to recreate the sampled sound without copying from the original recording. The BGH sent the case back to the lower court for the factual determination whether it was possible to recreate the sampled sound in the specific case. The lower court found that it was indeed possible for the average music producer to recreate the same sound without sampling, and in 2012, the BGH dismissed another appeal by Pelham against that decision. It namely held that its interpretation of the law did not violate the constitutional freedom of…

Is music sampling back in Vogue?
Copyright , Music Publishing / July 2016

COPYRIGHT Recorded music   A US Appeals court has decided that Madonna did not violate copyright law when her producer allegedly used a short section of music taken from another recording for her hit song “Vogue”. The split 2-1 decision must  call into doubt the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792 (September 2004). There the court in Cincinnati posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.” But in this new case, the U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit  lasted less than a second and would not have been recognisable to a general audience. Judge Susan P. Graber said for the majority: “The horn hit occurs only a few times in ‘Vogue’ …. without careful attention, the horn hits are easy to miss.” The decision fits in neatly…

Sorry not sorry – Justin Bieber and Skrillex deny copying vocal loop to produce ‘Sorry’
Copyright , Music Publishing / July 2016

COPYRIGHT Recorded Music   By Emma Perot writing for the IP Kat   Justin Bieber and Skrillex have been accused of copyright infringement by artist Casey Dienel, aka White Hinterland. The suit probably does not come as a complete surprise to the duo, as Dienel claimed that she contacted Bieber’s lawyers when “Sorry” was initially released, but did not receive a response.   Dienel alleged that Bieber and Skrillex, whose 2015 hit single ‘Sorry’ has received 1.4 billion hits on YouTube, copied her vocal loop from her 2014 song ‘Ring the Bell’. The allegedly copied segment can be heard in the first five seconds of each song. Skrillex and Bieber have both denied the claims on their Twitter accounts. If this claim goes to trial, it could be the 2016 edition of the infamous “Blurred Lines” dispute, which resulted in Pharrell Williams and Robin Thicke being ordered to pay Marvin Gaye’s family $7.4 million USD for infringing copyright in his 1977 hit ‘Got to give it up’ (discussed on IPKat here). After the ‘Blurred lines’ case, this Kat would be surprised if Bieber’s lawyers took this case to trial, but let’s consider what Dienel would need to prove to win her claim for infringement:…

Sheeran claim puts ‘Blurred Lines’  back in focus
Copyright , Music Publishing / July 2016

COPYRIGHT Music publishing   Two musicians based in California are suing Ed Sheeran for $20m (£13.8m) over alleged copyrigt infringement of one of their songs in Sheerhan’s single ‘Photograph’. Martin Harrington and American Thomas Leonard claim ‘Photograph’ has a similar structure to their song, ‘Amazing’. The two songwriters allege Ed Sheeran’s 2015 ballad has the same musical composition to their track, which was released as Matt Cardle’s winning X Factor track in 2010. Harrington and Leonard say they wrote ‘Amazing’ in 2009. Ciurt filings include musical note comparison and chord breakdowns of the two songs, and the pair claim the chorus of Photograph shares 39 identical notes with their track. The court documents say that ‘Photograph’ has sold more than 3.5 million copies worldwide.   The claim also states that ‘Photograph’ features prominently in Hollywood drama Me Before You, released last week, as well as trailers for the film. Matt Cardle’s version of ‘Amazing’ has more than one million views on YouTube, while Ed Sheeran’s music video for ‘Photograph’ has 208 million Documents were filed on Wednesday at LA’s federal court in the Central District of California. Other named defendants being sued include Snow Patrol’s Johnny McDaid, who is credited as a co-writer on’ Photograph’, as well…

ARTICLE LINKS – the Led Zeppelin case
Copyright , Music Publishing / July 2016

COPYRIGHT Music publishing Led Zeppelin Wins Copyright Infringement Suit Over Opening Lick of ‘Stairway to Heaven’ Led Zeppelin cleared of stealing riff for Stairway to Heaven. Los Angeles jury finds Robert Plant and Jimmy Page did not steal the most famous passage from the 1971 anthem from the band Spirit There may be a lady who’s sure that all that glitters is gold, but Thursday’s verdict from a Los Angeles jury in the “Stairway to Heaven” copyright infringement case says otherwise. Led Zeppelin have won a copyright lawsuit that claimed they had plagiarized the music to their most celebrated song, “Stairway to Heaven.” A Los Angeles jury determined Thursday that the lawyer representing the estate of late guitarist Randy Wolfe, who played with the group Spirit, did not prove that the hard rockers lifted the song’s intro from Spirit’s 1968 instrumental “Taurus.” Led Zeppelin Wins Copyright Infringement Suit Over Opening Lick of ‘Stairway to Heaven’ UPDATE Lawyer Who Sued Led Zeppelin Suspended From Practicing Law

Does Axl’s photograph claim carry any weight?
Artists , Copyright / July 2016

COPYRIGHT Artistes, photography   Guns N Roses and now AC/DC frontman Axl Rose has filed six DCMA take down notices in what is seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. The requests were filed on behalf of Rose by anti-piracy firm Web Sheriff, and all target examples of the same picture hosted on Blogspot and GoogleUserContent domains which have has spawned a series of ‘Fat Axl’ memes relating to the singer’s increased weight with labels such as ‘Sweet Pie of Mine’, ‘Take Me Down To the Bakery City’ and ‘Welcome to McDonalds’.   The original image was taken by Winnipeg Free Press photojournalist Boris Minkevich, who was initially unaware that any action was being taken over the image he snapped – and who is reported byTorrentFreak to have said that the only copyright being infringed is his: “The photo was stolen off our website with no permission granted by the Winnipeg Free Press”. However Web Sheriff told TorrentFreak that all photographers at the concert were said to have been required to sign an agreement passing copyright ownership of images taken to Rose’s company, The photographer cannot remember whether he signed the agreeement…

Slovakian music quotas to be tested
General / July 2016

BROADCASTING REGULATION Broadcasting   Slovakia’s General Prosecutor Jaromír Čižnár has said that he will test the constitutionality of state imposed broadcasting quotas. The obligatory quotas, introduced on April 1, 2016, force private radio stations to play 20 percent of Slovak musi,  which will rise to 25 percent as of 2017. Public radio must offer 30 percent now and 35 percent next year. The Prosecutors’s office say the quotas interfere with the ownership rights of broadcasters and distort the rules of competition. The Culture Ministry has reportedly said that it does not want to comment specifically on the challenge before it has studies the matter in detail. It added that the quotas were in compliance with the Slovak Constitution, and respect all principles of a legally consistent state. The Ministry is also of the opinion that the quota system does not threaten the right to free enterprise, as the law only stipulates the type of music to be played, while leaving the specific selection of individual tunes up to each broadcaster.

New UK review of secondary ticketing leaves some disappointed
Competition , Live Events / July 2016

COMPETITION Live events sector   The much-anticipated independent review of the UK’s secondary ticketing market, commissioned by the British government in October 201, has divided industry figures with its call for greater enforcement of the Consumer Rights Act (CRA) but no recommendation for any new legislation. Some provisions of the Act remain largely ignored, despite the Government introducing amendments to create greater transparency around secondary sales in 2015. The Act stipulates that consumers must be made aware of the original face value of tickets for secondary sale, any restrictions on the ticket and, where appropriate, standing or seating information. However, consumer group Which? had previously uncovered numerous examples where consumers were not provided with this information on al four of the main secondary ticketing sites, Viagogo, StubHub, Seatwave and Get Me In! In his 227 page report, Professor Waterson has rejected the need for further legislation – but called for greater enforcement of existing measures. Management of acts such as Paul McCartney, Arctic Monkeys, Mumford & Sons, Radiohead, One Direction, Ed Sheeran, Noel Gallagher, and agents from CAA, ITB, UTA, Coda, X-ray Touring and 13 Artists have added their name to the statement, which reads: “Professor Waterson exposes a dysfunctional and under-regulated ticketing…

Kanye West’s ‘Famous’ music video: publicity rights vs the First Amendment
Artists , Image Rights / July 2016

IMAGE RIGHTS Artistes   By Emma Perot   Kanye West’s music video for “Famous” has sparked outrage for portraying naked celebrities in bed, in the form of life-like wax figures. It is not simply the nudity, but the individuals portrayed, which has led to criticism; Rihanna is seen lying next to former boyfriend and abuser, Chris Brown, alleged serial rapist Bill Cosby is featured, as well as Taylor Swift, Anna Wintour and Amber Rose. Subsequent to the release of the video, Kanye tweeted, “Can somebody sue me already #I’llwait” but later deleted it.   While Kanye waits, this Kat contemplates on whether publicity rights can help those featured (this Kat thinks specifically of Taylor Swift who, lying next to Kanye in the video, is also mentioned in the song lyrics, ““I feel like me and Taylor might still have sex. Why? I made that b**ch famous.”). It is an unusual issue, as publicity rights are usually invoked by celebrities against companies who use them in unauthorised advertising and merchandising, rather than their celebrity peers. Also, there have been few cases which have been brought to protect moral rather than economic interests. An exception is Waits v Frito Lay, 978 F. 2d…

Roc Nation face claim for cancelled Rihanna show
Contract , Live Events / July 2016

CONTRACT Live events sector   A Nigerian concert promoter is suing Jay Z’s company Roc Nation for allegedly failing to pay back a US$160,000 deposit for a cancelled Rihanna show in Lagos. IQ report that The Barbadian singer is said to have pulled out of a May 2013 appearance in the Nigerian capital, booked by Chris Ubosi’s Megalectrics via Roc Nation, the Jay Z-owned label and production company. According to the New York Daily News, Megalectrics and Roc Nation agreed for Rihanna to perform a 65-minute set for $425,000, for which Ubosi made three deposit payments totalling $160,000. When Rihanna announced she had to postpone, Ubosi says he agreed as long as she listed a rescheduled date in her tour diary and on social media. The new date never surfaced, and Ubosi alleges that Jay Z – real name Shawn Carter – has ignored his repeated requests for a refund. However, a representative from Roc Nation toldTMZ: “Rihanna, Roc Nation nor anyone associated personally or professionally with either party was in contact with this person. Unfortunately this person was scammed. Rihanna nor Roc Nation collected any money for this event.”

Foos fight insurance underwriters and broker for cancellation pay out
Contract , Live Events / July 2016

CONTRACT Live events sector   Billboard reports that the Foo Fighters have accused Lloyd’s of London and insurance brokers Robertson Taylor of ‘despicable’ behaviour in a lawsuit filed in Los Angeles, alleging they have “failed to pay amounts that even they appear to recognize are due and owing” on insurance claims the band made on several shows cancelled during its 2015 world tour. The cancellations resulted firstly after Grohl broke his leg on June 12th, 2015, during a show in Sweden (a show that Grohl finished before going to hospital). The injury resulted in the cancellation of seven shows, three of which are at the core of the band’s complaint — two shows at London’s Wembley Stadium and one at Edinburgh’s BT Murrayfield Stadium. After his leg was treated, Grohl went on to perform 53 shows from the “throne” he designed (or crutches). The complaint says: “After paying certain amounts owed under the Cancellation Policy for four of the cancelled performances, [the insurers] began searching for ways to limit their payment obligations on the other three performances, including the two Wembley Stadium shows, which represented the largest potential gross income” for the band’s tour. The complaint continues,(insurance broker) “Robertson Taylor failed to…

Irish Judge says pop concerts are not ‘teetotaller conventions’
Licensing , Live Events / July 2016

LICENSING Live events sector   An judge has rejected calls for alcohol to banned at a number of high-profile summer concerts in Ireland, saying that local residents must realise that concerts by the Stone Roses and Kodaline would not be a “teetotaller convention”, and that to consider a ban there would have to be specific incidents of alcohol-related criminal damage in the past or evidence of inadequate policing. Twenty-five residents from  the South Dublin suburb Rathfarnham had objected to the application for the alcohol licence by Events Bars and Catering for three MCD-promoted events in Marlay Park, saying there had been underage drinking, public urination and antisocial behaviour at previous concerts in the 300-acre park. But Judge Michael Coghlan in the Dublin District Court denied their objections, saying: “I was interested to hear if there was a prevalence of public-order breaches, antisocial behaviour or violent incidents and the sergeant [Michael Phelan, who is co-ordinating the policing of the events] suggests that on the Richter scale things it was well down [at previous concerts].” Five Rathfarnham residents gave evidence, highlighting problems with a Swedish House Mafia concert in Dublin’s Phoenix Park in 2012, when nine people were stabbed in a series of…

Wireless wins High Court victory against local residents’ group
Licensing , Live Events / July 2016

LICENSING Live events sector   A High Court judge has dismissed a bid to have Wireless Festival removed from Finsbury Park. A local residents’ group, The Friends of Finsbury Park,  had requested a judicial review of the Local Authority’s decision to allow the festival to go ahead, arguing that that Haringey Council “does not have the power” to approve the Live Nation event for the grade II-listed public park, which is classified as Metropolitan Open Land. The group, which raised over £11,000 on crowdfunding website CrowdJustice towards its legal costs, contended the council’s decision was illegal under the Greater London (Parks and Open Spaces Act), which allows a maximum of the 10% of the park to be shut off for a private event (Wireless takes up 27%). Wireless Festival faced criticism in 2015 after serious security problems when the 45,000-capacity festival featured acts such as Drake, David Guetta, Avicii, Kendrick Lamar and Nicki Minaj in 2015. Video footage emerged showing chaotic scenes after a crowd forced open a security gate to gain access to the site during a performance by Lethal Bizzle. The Friends Of Finsbury Park group said a the time: “There were serious safety issues when hundreds of…

Japan’s late night dancing ban finally waltzes away
Licensing , Live Events / July 2016

LICENSING Live events sector   For the first time since 1948, Japanese club-goers can now legally dance after midnight. Whilst the ban on post midnight dancing was rarely enforced, a 2010 crackdown as well as the the looming 2020 Olympics prompted a change in the law and now clubs can apply for a license to operate as a Night time Entertainment Restaurant Operator, meaning that a club can offer entertainment (including a DJ and music), alcohol and food until 5am – with one condition: that the place be lit to a brightness greater than 10 lux. The old law was designed to deter prostitution in clubs.

Gambia outlaws music for Ramadam
Censorship , Live Events / July 2016

CENSORSHIP Live events sector     The government of The Gambia has outlawed music for Ramadan, warning citizens against engaging in “morally obscene” activities during the holiest month in the Islamic calendar. The Gambia has been an Islamic state since December, when President Yahya Jammeh declared the Islamic Republic of The Gambia. On 2 October 2013, The Gambian Interior Ministry announced that The Gambia would leave the Commonwealth of Nations with immediate effect, ending 48 years of membership of the organisation. The Gambian Government said it “decided that The Gambia will never be a member of any neo-colonial institution and will never be a party to any institution that represents an extension of colonialism”.[15]   In a press release, The Gambia Police Force listed “music, dancing and drumming” as activities that “Allah frowns on during the Holy Month” and said Gambians should “desist from such acts, otherwise they will be eventually apprehended and face the full force of the law without compromise”. The state-owned Daily Observer welcomed the diktat as “wholly reasonable as it is sensible”, opining “the ban should be seen through the lens of guiding Muslims to the respectable, honourable path during a month that Allah dishes infinite blessings…

Russian collection society chief arrested on fraud charges

CRIMINAL LAW Music publishing, recorded music   Sergei Fedotov, head of the Russian author’s rights collecting society RAO, has been arrested on suspicion of fraud.  Russian news service RIA Novosti said that Fedotov has been accused of funnelling assets worth of over ₽500 million rubles ($7.7 million) out of the organisation. RAO’s office and Fedotov’s home were searched by police on June 27th after which Fedotov was brought in for questioning. On June 28, The Tagansky court in Moscow sanctioned Fedotov’s arrest, rejecting his lawyer’s plea for bail. RAO issued a statement saying: “RAO’s general director Sergei Fedotov and the organization’s other employees are fully cooperating with the investigation, helping it to find out the truth” adding “We are sure that a qualified investigation will lead to establishing no wrongdoing in Sergei Fedotov’s action.” The move comes AFTER rumours of corruption involving real estate surfaced in the wake of the 2015 announcement that RAO would merge with two other collecting societies, VOIS, which deals with neighbouring rights, and RSP, which collects a one-percent tax on imports of electronic devices that can be used for copying content. That merger was seemingly supported by the country’s communications ministry but VOIS objected. This time Nikolai Nikiforov, the communications minister, was quoted…