National Trading Standards takes action over alleged ticket touting
Consumers / December 2018

CONSUMER: The UK’s National Trading Standards authority has begun legal action against nine alleged ticket touts on charges of money laundering and breaches of consumer rights law following an investigations. The nine are split between three secondary ticketing organisations – Connoco, BZZ and Ticket Queen. National Trading Standards is one of two UK government agencies that have been investigating the secondary ticketing market and compliance with consumer rights law, including the specific ticket resale regulations introduced by the 2015 Consumer Rights Act. The Competition & Markets Authority focused on the main ticket resale platforms including Seatwave, Get Me In, StubHub and (in particular) Viagogo. National Trading Standards has investigated individuals and companies using these platforms to re-sell tickets. The accused include Timothy Connor, who has been charged alongside his girlfriend and his parents (they are ‘Connoco’), and who allegedly used multiple names, addresses, credit cards and bespoke “sophisticated browser software” to acquire substantial numbers of tickets from primary ticketing sites. NTS say that, between June 2015 and December 2017, together they bought £2.3 million in tickets which they resold for £4.5 million. At a hearing at York Magistrates Court, the defendants indicated they would enter a not guilty plea. Two other defendants, Peter Hunter…

Good news for snappers – an update on Photo Authorisation Agreement for Taylor Swift’s latest ‘Reputation’ stadium tour
Contract / December 2018

CONTRACT: Three years ago in June-July 2015, Taylor Swift was the subject of a controversial boycott by newspapers in Ireland and Canada as a result of the Concert Photo Authorization Form for The 1989 World Tour, which photographers were required to sign prior to taking photographs at concert venues.  Photographers and publishers objected to Clause 2 which limited photographs taken to one-time use only. Clause 5 was particularly offensive as it was an express consent to the confiscation of/destruction of camera equipment and the ensuing likelihood of bodily injury; including an indemnity against liability for any loss or injury suffered by the photographer.  The issues were freedom of the press to publish, criminal damage to property and agreement to bodily injury. Following discussions between Ms Swift’s representatives and the National Press Photographers’ Association representing fourteen professional photographers’ bodies including the Associated Press and the American Society of Media Photographers, the agreement was re-named ‘Photo Authorization Guidelines’ and re-worded to address the concerns. In Clause 2, the previous restriction on one-time use was lifted but limited to the reviewing publication only, and an express ban on the use of photographs for commercial purposes which met the artist’s concerns.  The offending Clause…

For ‘substantial similarity’ a song has to have at least a spark of similarity
Copyright / December 2018

COPYRIGHT: US District Judge Dolly M. Gee has thrown out a plagiarism lawsuit, giving summary judgement to Gwen Stefani and Pharrell Williams, who had been accused of infringing copyright in their song “Spark the Fire”. Stefani and Williams were sued last year by Richard Morrill, a hairstylist, singer/songwriter and Korn member, over allegations of copyright infringement. Morrill contented that the Stefani and Williams’ song “Spark the Fire” was too similar to Morrill’s “Who’s Got My Lightah” brining claims for (1) direct copyright infringement and (2) contributory copyright infringement and (3) vicarious copyright infringement against Williams and Interscope Records only and (4) a conversion claim under California state law against Stefani only (Interscope Records is Stefani’s record label and perhaps Morrill thought she would hide behind it should the claim succeed) For those not familiar with the US concept of conversion, it can simply be described as theft. However, I will not consider it further as it was dismissed in November 2017. Morrill claimed that Stefani came in to his salon where he played the star his song. As a result of this ‘preview’ Morrill claimed that Stefani took parts of Morrill’s original and created “Spark the Fire”.  In November 2017 Stefani…

Spotify still face legal action in US mechanicals lawsuit
Copyright / December 2018

COPYRIGHT: It seems that so called ‘mechanical licensing’ is still haunting Spotify, despite the probgress of the new Music Modernization Act which will almost certainly soon become law. Now a federal court in Tennessee has denied Spotify’s bid to dismiss a copyright infringement lawsuit brought in July 2017 by Bluewater Music Services Corporation, the independent publisher and copyright administration company in the US District Court for the Middle District of Tennessee against the streaming music giant. Bluewater allege that Spotify wilfully infringed on 2,339 copyrighted works, including Sam Gay’s ’10,000 Pieces’ and Bob Morrison’s ‘You’d Make An Angel Want To Cheat.’ Bluewater says it had terminated the company’s license to reproduce and stream the works in November 2016 after discovering Spotify hadn’t paid any mechanical royalties and had also failed to negotiate a direct mechanical license: “Bluewater put Spotify on notice that ‘[f]failure to timely serve or file a valid NOI forecloses the possibility of a compulsory license, and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under and fully subject to the remedies provided by the Copyright Act.” Spotify defended itself by claiming it didn’t have data to track the compositions and sound…

Europe’s songwriters seek to block Sony Music takeover
Competition , Copyright / December 2018

COMPETITION / COPYRIGHT: The European Composer & Songwriter Alliance has joined the increasing clamour urging the  European Commission to block Sony’s plans to take complete control of EMI Music Publishing. The organisation -says that Sony’s proposed deals would “threaten competition in the licensing market, endanger music authors’ revenues across the EU and ultimately jeopardise cultural diversity in the European music landscape”. Other vpices who have argued against the merger include UK songwriter organisation BASCA and pan-European indie music companies trade group IMPALA  Under the proposed new deal, Sony would have complete control of the EMI repertoire and could fully merge the Sony/ATV and EMI music publishing businesses into its own, making Sony the biggest music publisher in the world – sitting alongside the second biggest recorded music company, (Sony Music). The ECSA’s President, Alfons Karabuda said: “We believe that allowing such a major and dominant publisher in the market is not only detrimental to a competitive market place but will also lead to a net loss for Europe’s culturally diverse music landscape. If approved, such a deal can only further exacerbate the domination of the top Anglo-American repertoire to the detriment of millions of music authors’ works that are very…

EU approves Sony takeover of EMI Music
Competition , Copyright / December 2018

COMPETITION / COPYRIGHT: Songwriters and independent music publisher have criticised the decision of the EU’s competition regulators to approve Sony’s deal to take complete ownership of EMI Music Publishing. Sony made no concessions to the European Commission who in turn said the deal “raises no competition concerns”.  Sony will become the world’s biggest music publisher and the World’s second biggest recorded music rights-holder. Sony originally led a consortium of investors to buy EMI Music Publishing in 2012 and  Sony/ATV has been the administrator of the EMI catalogue since then.  Sony is now clear to complete a $2.3bn deal where Sony will buy a further 60% of EMP from the Mubadala Investment Company, adding to the 30% it already owns. A $287.5m deal for the remaining 10% has already been agreed with Michael Jackson’s Estate. The takeover double Sony’s catalogue of songs from 2.16m to 4.21m compositions. Figure from pan-European indie label trade group IMPALA  (who opposed the deal) suggested that once complete, Sony’s catalogue of recordings released or distributed by Sony Music and the song catalogues of Sony/ATV and EMI would give Sony control of over 50% of chart tracks in seven key European markets in 2017. In the UK, Sony had control over an…

US Congressman calls for Ticketmaster investigation
Competition / December 2018

COMPETITION: Representative  Bill Pascrell, who helped instigate the planned Federal Trade Commission “workshop” to examining live event ticketing which is set for spring of 2019, and who was a critic of the 2010 Live Nation-Ticketmaster merger, has now asked the US Department of Justice to investigate the activities of Ticketmaster in the US. In a letter to Attorney General Jeff Sessions, Pascrell highlights “The concentrated market power of Ticketmaster has made it a behemoth with little incentive to protect consumers in the live event industry,” and adding that the “DOJ can, and should, thoroughly investigate and take strong steps to address any and all consent decree violations and anticompetitive practices of Ticketmaster/Live Nation.” The full letter reads:  The Hon. Jeff Sessions Attorney General U.S. Department of Justice 950 Pennsylvania Ave NW Washington, DC 20530 Dear Attorney General Sessions: I commend the Department of Justice (DOJ) for opening an investigation into Live Nation’s anticompetitive behavior and write to bring to your attention new investigative reporting and further lines of inquiry. The Canadian Broadcasting Channel (CBC) conducted a new investigation that reveals the ways in which Ticketmaster appears to collude with ticket scalpers to sell higher volumes of tickets on its platform…

Modern Talking take action to protect their name
Trade Mark / December 2018

TRADE MARK: Thomas Anders and Dieter Bohlen formed German duo Modern Talking in 1984 and they became a worldwide sensation with their hit “You’re My Heart, You’re My Soul”. They followed this up with a string of other worldwide hits, including “You Can Win If You Want”, “Cheri, Cheri Lady”, “Brother Louie” and “Atlantis Is Calling (S.O.S. for Love) before dissolving in 1987. In 1998, they reunited and produced several more worldwide hits including  “You Are Not Alone”, “Win the Race” and “TV Makes the Superstar”, before dissolving again in 2003. The duo sold 120 million records worldwide. Move on 15 years, and now Anders has won a case in the District Court of Hamburg against “playback act” Modern Talking Reloaded (MTR) after being repeatedly contacted by fans of the original band who had thought MTR WAS the original duo – with Anders seemingly taking action after it transpired MTR were not a tribute band or even a covers band – but a ‘full-play-back show’ where performers would dance moves whilst miming to Modern Talking’s original sound recordings. Having concluded that MTR had used photos that could be easily confused with those of the original Modern Talking, the court found…

Getting to grips with the MMA
Copyright / December 2018

COPYRIGHT: Hailed as a major milestone and major opportunity for the music industry, the Music Modernization Act (MMA) of the USA was signed into law by President Trump on  the 11th October 2018.  The MMA also has a global impact due to the USA being a signatory to the Berne Convention which dictates that the copyright law of the country where music is played, performed, streamed, downloaded, etc regardless of the country in which it was created; is the applicable jurisdiction. The MMA comprises three Bills previously introduced to the US Congress, which were enjoined and finally passed: Title I: Music Licensing Modernization  This part of the MMA dictates how digital music providers (DMPs) of on-demand interactive audio streaming services e.g. Spotify, Tidal, Apple Music, Amazon Prime, etc, will in future obtain a blanket mechanical licence for interactive streaming or digital downloads; and the creation of a Mechanical Licensing Collective (MLC) to administer the blanket license.  It also replaces the current legal standard for setting the statutory rate by the Copyright Royalty Board (CRB) with a new standard taking free-market conditions into consideration when determining rates. The MLC will be a non-profit quasi-government agency which will (i) collect, distribute, and audit the…

Led Zeppelin’s Stairway leads to the Ninth Circuit Appeal Court
Copyright / December 2018

COPYRIGHT: From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the “Stairway To Heaven” copyright lawsuit ‘en banc’ to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song “Taurus” recorded by Spirit and written by Randy “California” Wolfe’s whose estate brought the claim in 2016. The group’s representatives argue that by overturning the original judgement, the appeals court could “cause jurors to find infringement just because the same unprotected elements are present, upsetting the ‘delicate balance’” between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music”. In June of 2016 year a Californian jury was asked to consider the claim. The jury noted that there was a good chance Robert Plant and Jimmy Page had heard the Taurus song before they wrote Stairway to Heaven, but found the two songs not to be sufficiently similar. Subsequently the jury found in favour of Led Zeppelin, holding that there was no infringement.   In March 2017, the Estate of Randy California went on to appeal this ruling. In the Estate’s appeal it…

Italy’s competition regulator demands changes are SIAE
Competition / December 2018

COMPETITION: Italy’s Competition Authority AGCM had demanded that Italian music rights collection society SIAE  deal with monopoly concerns and to end what it calls proven market distortion tactics and to ensure such tactics are not employed in the future. SIAE has been given 60 days to comply.  Readers will note that the European Union has sought to make the European collecting societies more competitive, both in terms of recruiting members and licensing rights and indeed responding to those moves two new licensing organisations, Soundreef and Innovaetica, launched Some 8,000 rightsholders have left SIAE in recent years, mostly for Soundreef. SIAE was alleged to have spent €400,000 to investigate Soundreef – including by hiring Black Cube, a private intelligence agency founded by ex-Mossad agents – following the high-profile defection of Fabio Rovazzi and Fedez in January. Now Italy’s competition authority says SIAE has employed various tactics in recent years to “impair the right” of songwriters to choose alternative societies to represent their rights. To that end the regulator has demanded that the society “immediately end the proven distortion of competition and refrain from behaving in [that way in] the future”. AGCM says that SIAE has, since 2012, embarked on a “complex exclusionary strategy” designed to…

Cheltenham Racecourse gets court backing to ban touts
Competition , Criminal Law / December 2018

COMPETITION / CRIMINAL: The UK’s Cheltenham Racecourse has been granted a landmark ruling by the High Court to ban ticket touts from the track, The injunction will run until  June 2019, covering the full rac season. Cheltenham boss Ian Renton hailed the verdict as a “landmark decision” for sport saying “We welcome the judgement of Mr Justice Nugee at the High Court today, when an injunction was granted against ticket touting at Cheltenham racecourse” adding “This prohibits the selling and buying of tickets by touts on racecourse property, and we welcome this landmark decision” adding “It’s the first time any such injunction has been granted to prevent touting at a racecourse.” Up to 1,000 fake badges were said to have been sold by touts this year at Cheltenham, with 200 racegoers having been denied entry to the racecourse after purchasing invalid tickets. The Jockey Club, the UK’s largest commercial body for horseracing and operator of Cheltenham, estimates that ticket touting costs it an estimated £1m (€1.13m/$1.3m) per year across its 15 racecourses. This is then said to have a £10m estimated cost to racing as a sport. The racecourse last year attempted to combat touts by partnering with Cheltenham Council to issue public space protection orders…

Michigan moves to legalise scalping
Consumers / December 2018

CONSUMER: Whilst many countries around the world are re-examining their laws as consumer pressure grows to ban ticket touting, a Bill in Michigan could legalize ticket scalping in the state if  passed in Senate.  Michigan law currently prohibits a person from reselling an event ticket above its face value. Sales without the event organisers permission constitute a misdemeanor and penalties may include up to 90 days in jail and a $500 fine. However, the law is rarely enforced  but State Representative Tim Kelly (R-Saginaw) is sponsoring the legislation which has already passed through the Michigan House with a vote of 71 to 36. Kelly said the ticket resale market is dominated by venues and corporations who profit from the practice of ticket reselling, so individuals should be able to do the same without being criminals.

Time to collect your thoughts about the MMA
Copyright / December 2018

COPYRIGHT: The Music Modernization Act (USA) was signed into law just over a month ago on October 11th, 2018 and will globally impact on songwriters and music publishers, irrespective of nationality or country, by providing for the creation of the Mechanical Licensing Collective (MLC), a new digital music licensing entity which will begin operating in January 2021.  As the name indicates, the MLC will be a copyright licensing organisation which will create and maintain the world’s most thorough publicly accessible database of music composition copyrights and their owners; issue blanket licences and collect mechanical royalties from digital service providers (DSPs) – e.g. Spotify, Apple Music, Amazon Music Prime, Google Play, Tidal etc – for digital interactive music streaming and digital downloads in the USA; and pay those royalties to the copyright owners and rights holders anywhere in the world, who will be required to register their compositions and (co)ownership(s) with the database in order to satisfy claims for payment. There is no existing entity pre-designated to become the MLC and the process under which it will come into existence is that:  • No later than three months after the enactment date, the Register of Copyrights will publish a notice in the Federal…

Woodstock owner’s objection prompts name change
Trade Mark / December 2018

TRADE MARK:  Jade Presents, the promoters of next summer’s celebration of the 50th Anniversary of Woodstock at Bluestem Amphitheater in Moorhead,  Clay County, Minnesota, have had to make a name change for the two day event after the owners of the legendary music festival’s trade mark objected to the event as it was then named.  In October, and not long after advertising began for the event, the Moorhead event received a letter that made it clear that the name “Woodstock” was a trade mark and the use of the mark in commercial venture by anyone who is not an authorised licensee would constitute trademark infringement. The event is now being promoted as “Bluestem: 50th Anniversary of Peace and Music,” with no reference to Woodstock. It will feature more than 20 local and regional acts and over 100 musicians performing songs from the original Woodstock line-up, along with food and craft vendors. The event is scheduled for August 16 and 17, 2019. 

Swift Swoops for Spotify Shares
Contract / December 2018

CONTRACT: Taylor Swift announced on Instagram on Monday (19 Nov 2018) that she had signed a new label deal – an exclusive worldwide recording agreement with Universal Music Group and with UMG’S Republic Records for the USA.  She was previously signed with Nashville based independent Big Machine Label Group (BMLG) from 2006, aged 16.  Following the release of her last and sixth album for BMLG, Reputation, just over a year ago on November 10, 2017; it was revealed she had one year left to run on her then current contract.  UMG had distributed her albums and singles in an alliance with BMLG, so continuing the relationship developed “over the years” with Sir Lucian Grainge and Monte Lipman made commercial sense for all parties.  In a signed statement, Taylor Swift said she was “ecstatic”, “thrilled” and “incredibly” excited that under the deal she will own all her “master recordings”.  Under her old deal, BMLG will retain ownership of her master recordings now that she has departed.  However, she expressed her “heartfelt” thanks to Scott Borchetta, head of BMLG, for his belief in her and his guidance.  Another major deal clincher she admitted was “one condition that meant more (to her) than…

Skrillex stage dive ends in $3.8 million pay out
Criminal Law / December 2018

NEGLIGENCE: A female fan who was injured by a  Skrillex stage dive has been awarded $3.8 million in damages for the injuries she suffered. Jennifer Fraissl sued the DJ and producer in connection with a 2012 concert in Los Angeles claiming that when Skrillex attempted to crowdsurf at the gig, she suffered head injuries that subsequently led to a stroke. Fraissl also claimed that by urging fans to move forwards before the stagedive, she found it difficult to avoid being injured According to CBS, the jury awarded Fraissl damages of $4.5 million, but these were reduced by 15% due to Fraissi’s contributory negligence . Of the remaining $3.8 million, Skrillex himself must pay $1.6 million, and his touring company, Lost Boys, will have to pay another $1.8 million, while the venue, The Belasco Theater, will pay $450,000. Skrillex said in a statement: “There is nothing more important to me than my fans and their safety at my shows. I want them to have fun and enjoy the music. While I’m disappointed by the jury’s decision, I’m glad this process is over. I look forward to getting back to work and delivering new music to my fans”.

Rammstein block Viagogo
Consumers , Contract / December 2018

CONTRACT / CONSUMER LAW: German industrial metal band Rammstein have secured an injunction from the District Court in Hamburg court that will block Viagogo from reselling tickets from their upcoming European stadium tour. The tour’s official ticket paertner, CTS Eventim, sold more than 800,000 tickets within a matter of hours on the 8th November and tickets are personalised, with promoter MCT Agentur only allowing resale through Eventim’s own fanSALE platform and München Ticket. The tour will support the band’s first studio album for a decade, which is due for release in the spring. Rammstein has long campaigned against the sale of overpriced tickets via resale platforms When the tickets were put on sale MCT confirmed that all tickets resold through Viagogo and other non-authorised secondary ticketing sites will not be valid for entry – something affirmed today by the district court, or Landgericht, of Hamburg. Viagogo is now blocked and cannot “allow the sale of tickets for the 2019 Rammstein stadium concerts in Germany” and/or “assert that they are valid tickets for entry”, according to a MCT release. Rammstein’s legal team described the court’s decision as a “warning signal” to anyone considering touting their tickets to profit from the tour: “The band is pleased that…

Viagogo agrees changes with UK’s competition regulator
Consumers / December 2018

CONSUMER LAW: Another day, another court order against Viagogo. The High Court in London has ordered controversial ticket reseller Viagogo to “overhaul” the way it does business. The Competition and Markets Authority had launched legal action against the company in August over concerns it was breaking consumer protection law. The regulator claimed that unlike its competitors, Viagogo had failed to voluntarily comply with the the law. With that case about to arrive in the High Court, Viagogo yesterday committed to make a series of changes to its website to deal with the CMA’s concerns. The court order makes those commitments legally binding. The Court has confirmed that from January Viagogo must tell buyers which seat they will get and if there is a risk that they will be turned away at the door. The order extends to ensuring Viagogo informs buyers who is selling the ticket, make it easy for people to get their money back when things go wrong, prevent the sale of tickets a seller does not own and may not be able to supply and not  to give misleading information about the availability and popularity of tickets Viagogo will also be compelled to provide more information about who…

Japan votes to outlaw ticket touting
Consumers , Criminal Law / December 2018

CONSUMER / CRIMINAL: Japan’s upper house, the House of Councillors has voted unanimously to approve a new criminal law that will encompass almost all ticket touting, just over two years after the #ResaleNO campaign first brought the issue to public prominence. The new law, which came out of the move to criminalise the re-sale of 2020 Olympic tickets,  comes into effect six months from the day of the vote, on the 8th June 2019. The legislation was approved by Japan’s lower house, the House of Representatives on the 4th December and will  prohibit ticket touting, both online and outside venues, for all shows where the organiser has prohibited resale, a practice followed by the majority but not by all promoters. Anyone who violates the new law, which encompasses both paper and electronic tickets, may be punished with a one-year prison sentence, a fine of up to ¥1 million (US$8,900), or both. The legislation, proposed to ensure the “securing proper distribution of entertainment tickets by prohibiting illegal resale of specific entertainment tickets” (特定興行入場券の不正転売の禁止等による興行入場券の適正な流通の確保に関する件) also outlaws ticket touting as a ‘business’, in effect purchasing tickets for the express purpose of reselling them. Tiketore, Japan’s first face-value ticket exchange, opened in May 2017. Takeo Nakanishi,…

Ticketmaster face a new US action over scalping claims
Business , Consumers / December 2018

A class action lawsuit against Ticketmaster has been launched after a customer, Allen Lee, accused the ticketing giant of intentional fraud and over-charging consumers.The lawsuit was filed in the U.S. District Court for the Northern District of California, claims that Ticketmaster has violated the Cartwright Act, California Penal Code, and a handful of fraudulent business practices: “Have you ever wondered why Ticketmaster has been unable to rid itself of the scalpers who purchase mass quantities of concert or sports tickets from its website and then resell them for much more minutes later?” the lawsuit reads. “The answer: Ticketmaster hasn’t wanted to rid itself of scalpers because, as it turns out, they have been working with them. Taking the same approach as the recent Canadian CBC TV documentary on Live Nation and Ticketmasters’ activities which explained “Beyond running the official box office (and claiming to be anti-bot/anti-scalper), CBC reveals Ticketmaster’s secret program for industrial-scale ticket re-sellers. Our Dave Seglins poses as a scalper and gets a first-hand demonstration of Ticketmaster’s re-seller software, designed to help move millions of dollars in scalper inventories. The suit goes on: “Indeed, on its own website, Ticketmaster refers to the activity of professional scalpers as ‘unfair competition.’ But now it…