Do we still have blurred lines in the conflict between inspiration and appropriation?
Copyright / May 2020

COPYRIGHT: From Hell to Heaven? Readers will remember that Led Zeppelin had asked the US Ninth Circuit appeals court to reconsider the original ruling in the “Stairway To Heaven” copyright lawsuit ‘en banc’ to determine some key elements of US copyright law,  in the case that involved the  allegation that the 1971 classic was a rip-off of the 1968 instrumental song “Taurus” recorded by Spirit and written by the late Randy “California” Wolfe in a case brought by his estate in 2016. This was always a difficult case, and here the courts have battled to differentiate between the actual song – and the basis of the claim was that the song was copied – as opposed to the two sound recordings which were never part of the case – but of course to most people were relevant to the case.  One key facet of the case was that under US copyright law a songs is only protected in the form it is  registered with the US Copyright Office. And for older works, that would be the sheet music representation of the song – and so it’s the sheet music representation that matters. At the time of the initial decision in this case,…

MAJOR LABELS: 1 (BILLION) v COX: 0
General / May 2020

COPYRIGHT: We have written about this ongoing litigation for a while now. In case, like us, you don’t want to scroll through the website to find it the background is: EMI, Warner Music Group, Sony Music and Universal Music (the majors) sued Cox Communications last year. The suit claimed that Cox had shoddy systems in place to deal with piracy. It was claimed that Cox’s subscribers were engaging in mass scale piracy and the majors sent “hundreds of thousands” warning letters about the piracy with no resolution. Following this lack of success on part of the majors, they embarked on this piece of litigation in the US District Court for the Eastern District of Virginia. This decision follows the earlier case between BMG v Cox. In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers:  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label – but many said at the time that a careful look at the judgment, which…

Agent of change principle applied as court overturns noise abatement order
Live Events / May 2020

PLANNING: A long standing venue in Guildford venue has successfully appealed a noise abatement order after a court applied the “agent of change” principle.  Guildford Borough Council (GBC) had issued the noise abatement order last October against the Star Inn, a pub in the town that stages live music. The Council acted after receiving a complaint from the developer of a new block of flats nearby. The pub’s owner, the Shepherd Neame brewery, appealed the order, arguing that complying with it would cost a significant portion of the business’s revenue and could therefore potentially force the venue to close. The property developer, Neil Young, who had converted an office block next to the existing music venue into a residential property had filed the complaint. Explaining the decision, the the Magistrates Court said “The Star was said to have only been a nuisance because of [the new flats] existing. It wasn’t a nuisance before the conversion of the office building into flats. The venue has a useful or reasonable use. Matters in the venue are carried out in a lawful way. The venue is no greater nuisance now than when the building was first converted”. Thew decision highlight the problem with the way…

The Copyright in songs II – Ed Sheeran copyright case postponed pending Led Zeppelin ruling, but Katy Perry found liable for plagiarism
Copyright / May 2020

COPYRIGHT: The ongoing litigation between Ed Sheeran and Ed Townsend has now been postponed pending the outcome of the ‘Stairway To Heaven’ litigation. Sheeran was sued in 2016 over allegations that his 2014 hit ‘Thinking Out Loud’ lifted “melody, harmony and rhythm compositions” from the Marvin Gaye song ‘Let’s Get It On’. The lawsuit was filed by the estate of Townsend, who co-wrote the 1973 Gaye classic – with another Gaye track, ‘Got to Give It Up‘ already at the centre of another major copyright case, the ‘Blurred Lines’ litigation. The Ninth Circuit appeals court covers the Western states of America, and whilst the Sheeran v Townsend case  had been filed in New York, Judge Louis L Stanton has acknowledged that the appeal judges will be considering some copyright technicalities that are very relevant to the ‘Thinking Out Loud’ action, even if not binding,  and concluded that to proceed with the Eds case in “wilful ignorance” of their conclusions would be “folly”. According to Law360, the New York judge mused that “whatever the Ninth Circuit says, it’s going to be damned educational” although the Led Zeppelin case may then proceed to the US Supreme Court. Judge Stanton acknowledged that that was a further possible outcome and if that happens,…

The copyright in songs I – Stairway To Heaven case to return to Ninth Circuit appeals court
Copyright / May 2020

COPYRIGHT: The Stairway To Heaven case will return to Ninth Circuit appeals court, with the court now sitting en banc to hear the plagiarism case. Led Zeppelin are facing a legal action from the estate of songwriter Randy Wolfe (aka Randy California) that alleges that ‘Stairway To Heaven’ copies off a song written by Wolfe. In June 2016 Led Zeppling prevailed, with a jury concluding that ‘Stairway’ wasn’t sufficiently similar to Wolfe’s song ‘Taurus’. The Wolfe estate then appealed that ruling arguing that the jury had been been misdirected on copyright law the judge and last year the Ninth Circuit concurred with the estate, overturning the original judgement and ordering a retrial. However the new decision means that rather than a retrial, the case will go back before a extended panel of judges in the Ninth Circuit, with oral arguments set to begin on 23 Sep. One important point the appeal will be asked to determine is to establish the correct position in US copyright law should when two songs contain one or more of the same elements, but those elements are (arguably) common features in a genre of music. CMU Daily opines that it’s generally agreed that those common elements are not protected by…

European Court Of Justice sides with Kraftwerk in sampling case
Copyright / May 2020

COPYRIGHT: The European Court of Justice has sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around a two-second snippet of Kratfwerk’s “Metall auf Metall” used as a loop. CMU Daily reports that In 2012, Germany’s Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of ‘Metal On Metal’ was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham’s “artistic freedom” had to be considered – and that the negative impact on Kraftwerk caused by the uncleared sample wasn’t sufficient to outweigh the sampler’s artistic rights. The case was then referred to the CJEU. Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General…

A ‘sample’ of the music industry’s issues ?
Copyright / May 2020

COPYRIGHT: This week it has been reported that Ernie Hines, the American soul musician, has filed a lawsuit against Sony Music and Roc-A-Fella Records, whom published Jay-Z and Timberland 1998 track ‘Paper Chase’ and Timbaland’s 1999 track ‘Toe 2 Toe’. Uproxx reports that the claimed value of the suit is $2million. The allegations stem from Hines’ 1970 track ‘Help Me Put Out The Flame (In My Heart)’, a sample of which has allegedly been used in ‘Paper Chase’ and ‘Toe 2 Toe’. Hines claims that, whilst the tracks were released nearly two decades ago, he has only just heard them, the Blast reports that the complaint explains that “[Hines is a] senior citizen, does not listen to rap music and was unaware [that the songs contained his music and composition.” It is claimed that in both matters the sample was used without consent of Hines, and in the case of Jay-Z it is claimed the infringement was wilful due to the fact that the TIDAL music streaming service lists the sample. But this is only one sample of an issue in the music industry, for example in 1999 Produce Records sued BMG Entertainment over a 7.5 second sample, this case…

Were Ultra’s counter drone activities in violation of federal law?
Licensing / May 2020

LICENSING: Were the counter-drone company who had been brought in by Miami Police for the Ultra Music Festival actually operating in contravention of federal law? The FAA has now said that by jamming drone signals in the Festival’s Virginia Key’s home may indeed be a problem The FAA said in a statement that the agency had “looked into a report that the Miami Police Department (MPD) hired a company to provide counter-drone services during a recent music festival in Key Biscayne. MPD stopped the operations after the FAA advised the department that the use of counter-drone technologies may create possible conflicts with federal law.” The jamming of drone signals can only be legally performed by government agencies such as the Department of Homeland Security and the Department of Defense. Miami Police did not want to respond on camera to questions from the news organization but stated that: “After extensive research, we have learned that Vigilant Drone Defense, Inc. was at the 2019 Ultra Music Festival for a demonstration of drone technologies.”  The Police said that they were unaware that such counter-drone jamming activities would be against federal law. Reports said that the FAA is looking into the matter and the FCC is likely to get…

Spotify beware – Indian broadcasting licensing scheme may not cover streaming
Copyright / May 2020

COPYRIGHT: A recent ruling against and Indian streaming service could have important implications for Spotify in its battle with Warners in the country and it’s plans to launch in the Indian market. The Bombay High Court (Justice S.J. Kathawalla) has now made its decision Tips Industries Limited vs Wynk Music Ltd with (judgement dated April 23, 2019) and and has found for Indian record label Tips against a local streaming service based, Wynk. The dispute began in 2017 when Tips and Wynk failed to agree new licensing terms. Tips then told Wynk to remove its catalogue from the service, but Wynk responded by saying it didn’t have to because it was covered by a compulsory licence under Indian law that was traditionally intended for broadcasters. Tips then brought a legal action for copyright infringement.  Justice SJ Kathawalla has now ruled in favour of the label, saying that Wynk was “knowingly infringing upon the plaintiff’s copyrights”. He also dismissed claims by Wynk that the label was simply trying to force its hand in licensing negotiations. The judge noted the increase in digital music companies claiming protection under Section 31-D of India’s Copyright Act but ruled that  this “amounts to usurpation of the exclusive rights of the owners to commercially rent,…

Woodstock 50 cleared for the summer – but who will foot the bill?
Contract / May 2020

CONTRACT: A Court in New York has ruled that the Woodstock Festival’s financial backers had no right to cancel the event without the agreement of the organisers of the Woodstock 50, although the court declined to force Dentsu to return $18 million to the Event’s bank account. The 50th anniversary celebration of the original Woodstock which is planned August, was thrown into doubt last month when Amplifi Live, a division of the Dentsu Aegis Network – announced that the event had been cancelled. The Woodstock company rebutted this saying at the time Amplifi had no right to make such a decision and took the matter to th courts for resolution. In what seems to be an analysis of the contract between the two former partners, and in particular what that contract said about cancelling the event and the management of the bank account that had been set up to pay festival costs. CMU Daily reports that  “The agreement did set out quite clearly what Dentsu could do if it thought the Woodstock company was ever in breach of its contract. Basically, the marketing firm could either cancel the deal and walk away from the project, or take control of the festival…

Guns N’ Roses – a trade mark dispute
Trade Mark / May 2020

TRADE MARK: Guns N’ Roses (GNR) are knockin on a trade mark lawsuit against Oskar Blues, a Longmont, US, based brewery. Back in August 2018 Oskar Blues applied to register a figurative ‘Guns N’ Rose’ logo with the US Patent and Trademark Office: the trade mark application ultimately knocked on heaven’s door following objection from GNR. Despite this initial trade mark dispute, and according to the filed complaint, in 2018, Oskar Blues began to sell its ‘Guns N’ Rose’ beer in various outlets in the US. In the complaint, it is claimed that in December GNR’s manager spoke to Oskar Blues’ manager and requested the ‘Guns N’ Rose’ beer be discontinued. When this informal effort failed, various legal letters were exchanged in GNR’s hopes of the putting the matter to bed and avoiding a hangover. Digital Music News, reports that Axl Rose even asked Oskar Blues to stop selling the beer. Essentially, all of GNR’s efforts to have the ‘Guns N’ Rose’ beer discontinued failed. Oskar Blues even went so far as explaining that it was happy to abandon its trade mark application and halt sales of the ‘Guns N’ Rose’ beer….in March 2020! Of course, the next step for…

British Columbia Introduces Ticket Sales Act
Consumers / May 2020

CONSUMER: British Columbia is the latest Canadian province to introduce a Tickets Sales Act, banning bots and enforcing transparency requirements for the secondary market, and intended to “bring more fairness and transparency” to purchasing tickets to live entertainment events. The Ticket Sales Act, introduced by Solicitor General Mike Farnworth to the Legislative Assembly after a 2018 consultation which gathered in some 6,500 responses, would outlaw the use of automated “bot” software programs in the province, as well as introduce requirements involving the disclosure of ticket prices, refund guarantees by secondary sellers, and disclosure that secondary sellers are not the original ticket provider, their name, and their contact information. Franworth said: “By establishing a regulatory framework for the sale of tickets in B.C., we would want to ensure that everyone has a fair chance of obtaining a ticket at a fair price” But the proposed legislation stops short of imposing a price cap on resale tickets. It also fails to tackle what many see are problems in the primary market include any requirement on the part of primary ticket vendors to disclose how many tickets are available to the general public. Ticketmaster and its parent Live Nation have lobbied heavily against the inclusion of…

BMG v Cox principles applied in finding liability for ISP Grande
Copyright / May 2020

COPYRIGHT: The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers:  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label – but many said at the time that a careful look at the judgment, which reversed the jury on a technicality, was actually a win in the battle against piracy.  The 4th Circuit took a long hard look at how and why Cox would be protected by US  “safe harbor” provisions that protect service providers from liability when users infringe copyright. – and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have “adopted and…

Coachella’s “radius cause” is ruled valid
Competition / May 2020

COMPETITION: A US District Judge has ruled that the Coachella festival’s controversial ‘radius clause’ that prevents other festivals booking artistes which it has secured exclusively is valid and does not fall foul of US anti-trust laws, despite the claim that the contractual restriction preventing acts on the Coachella bill from playing at any other festival in North America from 15 December to 1 May, amounts was anti-competitive behaviour on the part of organisers. The clause meant ‘Coacxhella’ acts had to avoid bookings at North American festivals and headline concerts in five states, from announcing plans to play other events until after the Coachella line-up release in January, and from publicising appearances at West Coast festivals until after Coachella closed. Oregon based Soul’d Out Promotions had tried to book Coachella performer, SZA, to their Portland festival only to be turned down, they said, because of the terms of Goldenvoice’s radius clause. The promoters also claimed the funk-soul group, Tank and the Bangas, canceled after agreeing to play their 2018 festival because of a conflict with their Coachella commitment. The Coachella legal team defended the policy, explaining in a court filing accessed by Amplify that “the entire purpose of the radius clause…

Marc Jacobs looks to dismiss Nirvana case
Copyright / May 2020

COPYRIGHT: In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ‘ Redux Grunge’ grunge-inspired collection and seemingly acknowledges the ‘inspiration’ for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis.  At the time of those reports The t-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers. Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that – while its happy face T-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob’s also notes that its products don’t include the text  “flower-sniffin, kitty-pettin, baby-kissin corporate rock whores” which was on the back of the band’s original shirts. And where the Nirvana t-shirts bore the band’s name, Jacobs’ say ‘Heaven’,…

Is Kanye West going to send EMI south?
Contract / May 2020

 CONTRACT: A famous artist is suing a music publisher, again…..not quite. Kanye West v. EMI has all the hall marks of a juicy and exciting case. On one hand we have employment/ contract issues, on the other we have copyright and some very valuable rights at stake and on the other hand (if there is a third hand!) we have a multimillion dollar artist that wants to retire – but EMI are not having it. In January, Pitchfork reported that West filed two suits: one against Roc-A-Fella Records, Def Jam Recordings, UMG Recordings, and Bravado International Group and the other taking aim at EMI. At the time there was not much to report as both complaints had been heavily redacted. On Friday in Please Gimme My Publishing, et al v. EMI April Music, Inc., et al West’s complaint in Kanye West v. EMI was filed as an exhibit in discovery. You can read the document via the link below, but for now here are some comments: Like most good disputes, there is a contract. In 2003 West signed with EMI and granted it the the publishing rights to his songs. The 2003 contract was for a term of three years with an additional optional year. Between…

Marley family triumph in coffee case
Contract , Trade Mark / May 2020

CONTRACT / TRADE MARK: A US appellate s court has upheld an earlier ruling in a trademark dispute between the Bob Marley estate and a coffee company that previously had the rights to sell coffe beverages using the legendary reggae musician’s name. Jammin Java Corp will now have to pay the Marley family estate $2.4 million in damages. Jammin Jave originally had a licence to use the Marley name, agreed with Fifty-Six Hope Road Music (56 HR) and Hope Road Merchandising – who were authorised by the Marley family to grant the right to the coffee company to make and sell a coffee product that utilised the late musician’s name and trademark, with Marley’s son Rhohan involved . However, the two sides in the venture fell out, initially over unpaid royalties and allegations that the coffee firm was unlawfully sub-licensing the Marley brand to third parties. Jammin Java continued to sell its Marley coffee product  once its licences had expired. The Marley companies brought a legal action in 2016, and were granted a summary judgement and were subsequently being awarded $2.4 million in damages. Jammin Java then appealed that ruling,  arguing that the court of first instance had not properly considered…

Live Nation executives cleared of secondary ticketing charges
Competition , Criminal Law / May 2020

CRIMINAL / COMPETITION: A Milan court has acquitted two senior Live Nation Italy executives and three executives from the live sector of any wrongdoing in a secondary ticketing case, which alleged the companies profited from illegally inflating ticket prices. Live Nation Italy’s  president Roberto De Luca and general director Antonella Lodi had been charged, along with Mimmo D’Alessandro, chief executive of Tuscan promoter D’Alessandro e Galli (Di & Gi), Corrado Rizzotto, formerly chief executive of Milan promoter Vivo Concerti  and now head of Indipendente Concerti, and Charles Roest of Viagogo The charges were based on an alleged conspiracy with secondary ticketing platform, Viagogo, to remove tickets from the market and resell them at inflated prices and spreading “false information to cause an alteration of the market.” Prosecutor Adriano Scudieri led the two-year investigation into the inflation of ticket sales for events including Bruce Springsteen and Coldplay shows. The five defendants were also accused of “fraud against the state” for failing to pay taxes and performance royalties in full. The suspected inflation would have resulted in revenues from 2011 to 2016 of more than US$1.13 million. Scudieri called for custodial sentences of up to 16 months. “Two very difficult years have now come to an end, but…

New Zealand’s High Court refuses to grant interim injunction against Viagogo
Consumers / May 2020

CONSUMER: Over the last year or so a number of regulatory authorities have gone after Viagogo, the now controversial secondary ticket resale platform based in Switzerland, over complaints from consumers. Complaints include the use of misleading statements referring to the availability of tickets and the failure to identify seat numbers and seller identities, and notably, the UK Competition and Markets Authority and the Australian Competition & Consumer Commission have filed legal complaints against the Swiss company. In August, last year, it was the turn of New Zealand’s Commerce Commission (Commission), at the time Complete Music Update reported that the Commission was seeking “declarations that Viagogo has breached the [Fair Trading Act], an injunction restraining it from further breaches and corrective advertising orders”. Reference was made to the use of words such as ‘official’, ‘guarantee’ and ‘limited’ when Viagogo was not ‘official’, refunds were not ‘guaranteed’ and tickets were not ‘limited’. Not stopping there, the Commission also referred to an unfair contract term in that any consumer disputes against Viagogo must be heard under Swiss law in Swiss Courts, whereas on the other hand, Viagogo is free to take action against consumers in a jurisdiction of its choosing. Whilst these substantive arguments are…

Rights owners call for a halt to EU Copyright reforms – but the creative sector disagrees
Copyright / May 2020

COPYRIGHT: Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  “regrettably under these circumstances we would rather have no directive at all rather than a bad directive”.  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights – they still see big benefit from the Copyright Directive. The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises – but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text…

What’s going on under the blanket?
Copyright / May 2020

COPYRIGHT: The Music Modernization Act (MMA) was signed into US law on 11 October 2018, it plans to do what it says on the tin, namely the overhaul of how copyright underpins the US music industry. One particular area in need of a revamp is the law relating to mechanical tights and digital streaming. Prior to the MMA becoming law in the US, digital music providers (iTunes, Spotify and Google Play…) would file clearance notices with the relevant publisher of the music being streamed. The publishers would then receive a mechanical royalty based on a relatively complicated formula (see link below) which is set by an authorised body. Under this provision of the Copyright Act, the copyright owner is not able to refuse the grant of a mechanical license providing certain criteria is met e.g. the work has been lawfully recorded and distributed in the US and is a non-dramatic work. The Musical Works Modernization Act section of the MMA creates a new blanket license for the digital use of musical works and, amongst other things, authorises a newly formed Mechanical Licensing Collective (MLC) designated by the Copyright Office to administer mechanical licenses, this will entail the collection and distribution of royalties (much like…

Director jailed for providing unlicensed security staff to UK events
Health & Safety / May 2020

HEALTH & SAFETY: Lee Szuchnik, The director of Welsh event security firm, LS Armour, has received a prison sentence of two years and three months after being convicted of providing unlicensed security staff at UK music events. The conviction followed an investigation by the Security Industry Authority (SIA) into how Szuchnik supplied unlicensed guards to music festivals in June and July 2017.  The SIA investigation began in July 2017 after a regional investigator stopped two guards with false licences at 2000Trees festival in Cheltenham. The investigator spotted two LS Armour security guards working with fake licences.She then stopped two further operatives who were trying to flee the site. Both of them were also using assumed identities. Unlicensed staff were supplied to events including Download, Glastonbury Festival and two Adele concerts at Wembley Stadium. Szuchnik retained copies of genuine licences and identity details from SIA licence holders he had invited for interview at the LS Armour offices in Barry, South Wales. He later created fraudulent badges for use by unlicensed staff. The badges displayed the name and licence number of official operatives alongside a photograph of the unlicensed bearer. Szuchnik and fellow director Emily Lloyd were consequently summonsed on several counts of providing unlicensed operatives…

The battle over secondary ticketing goes on
Consumers / May 2020

CONSUMER: On the back of successful moves to prohibit Viagogo from re-selling Rammstien and Ed Sheeran concert tickets in Germany, the German promoters’ association BDKV has won a legal victory against Ticketbande, a leading secondary ticketing site, securing a judgment that prevents its listing tickets where the resale of those tickets has been prohibited by the promoter.  Ticketbande is one of three main secondary ticketing platforms along with StubHub and Viagogo. Eventim owns the price-capped fanSALE platform. The BDKV (Federal Association of the Concert and Event Industry) launched its Nein zum Ticketschwarzmarkt (No to the Ticket Black Market) campaign in August, pushing for a price cap of 25% above face value for secondary market tickets. In its 21st January ruling, the regional court of Hanover agreed that any further mark-ups made by the re-seller were anti-competitive, and forbade Ticketbande from reselling tickets where the T&Cs prohibit such a re-sale and where there is a named ticket. The Court ruled that Ticketbande must not list tickets when any one of three scenarios apply: (i) the terms and conditions on the original ticket prohibit resale (ii) when tickets have a box for the buyer’s name (iii) if a seller marks up the ticket by more…

Gone With The Wind – de Havilland loses legal battle
Image Rights / May 2020

IMAGE RIGHT: The US Supreme Court has decided not accept the law the suit brought by actress Olivia de Havilland against the makers of the FX series “Feud“. “Feud” is a TV dramatisation of the real-life rivalry between actresses Bette Davis and Joan Crawford. In the miniseries, de Havilland (now 102) is played by Catherine Zeta-Jones and is a supporting character. De Havilland’s attorney argued that she is incorrectly portrayed as a hypocrite and gossip who spoke casually and disparagingly of friends and acquaintances such as Davis, Crawford, Frank Sinatra, and her own sister, Joan Fontaine. The Gone With The Wind and Captain Blood star’s suit was initially allowed to proceed by a Los Angeles judge, but a California appellate court reversed that decision in March 2018. The California Supreme Court had previously declined to take up the case prior to the application the U.S. Supreme Court. The 2nd District Court of Appeal said in a unanimous decision that the First Amendment rights of the show’s creators clearly trumped de Havilland’s claims that permission to use her likeness was needed, and she should have been compensated In the appellate court Justice Anne Egerton wrote “Whether a person portrayed in one of these expressive works is a world-renowned…

Swedish Ombudsman rules that the ‘man-free’ Statement Festival violated discrimination laws
Discrimination / May 2020

EQUALITY: Sweden’s Discrimination Ombudsman (DO) has ruled that describing an event as ‘man-free’ is discriminatory, dealing a blow to the ‘Statement Festival which was promoted as a music festival aimed at women in August earlier this year. Statement Festival, which took place in Gothenburg this summer, was organised following multiple reports of sexual assaults at other Swedish festivals including the now discontinued Bravalla. Comedian Knyckare who instigated the festival said at its launch “It felt important when so many people wanted it” and “All men are not rapists, but almost all rapes are carried out by men. We want to create a free space, a cool festival where women can be without feeling worried. A festival is not the solution, but a reaction to the problem. The goal with the festival is that there shouldn’t need to be separatist events.  After questions were first raised about the festival’s definition as ‘man-free’, organizers confirmed they would also welcome trans men and non-binary people. The ruling, issued on Monday, confirmed that describing the festival as “man-free” amounted to “an infringement of discrimination law”. Although the ruling noted that festival organizers did not enforce the “man-free” rule and that “no differentiation based on sex was made…

French Constitutional Council confirms ticket touting ban is legal
Competition / May 2020

COMPETITION: France’s constitutional court (Constitutional Council) has ruled that the country’s 2012 anti-ticket touting laws are compliant with the French constitution, knocking back secondary platform Viagogo’s efforts to have the law ruled unconstitutional on the basis they are  “disproportionate breach of freedom of enterprise” – a move backed by rival platform, Ticketbis, owned by eBay’s StubHub. The secondary ticketing firm argued that the ban “infringes the freedom of trade, challenges the right of ownership which grants everyone the freedom to use their property as they see fit, and consequently grants a de facto monopoly to event organisers”. The resale of tickets for profit,without the permission of a show’s promoter, was prohibited in 2012,  The director of French live industry trade group PRODISS, Malika Séguineau, welcomed the Council’s decision, saying that it “strongly reinforces the French law”, and in doing so “protects the consumers, the fans, the artists and the promoters”. The trade group also confirmed that it and several French promoters have filed a criminal action against Viagogo, which will now proceed after the  Constitutional Council’s ruling saying “We welcome today’s decision, especially as PRODISS, alongside several promoters, have parallelly filed a criminal action against Viagogo. The judge is soon to…

Vinyl pirates face prison sentences
Copyright / May 2020

COPYRIGHT: Vinyl has become so fashionable again its attracted the attention of pirates – and now two UK men have been jailed and two others have received suspended sentences for their involvement in a bootleg vinyl operation that was manufacturing and selling unlicensed copies of mainly Northern Soul recordings. Alan Godfrey, Christopher Price, Robert Pye and Stephen Russell were variously accused of copyright and trademark infringements as a result of their piracy activities.  Explaining that the four men were part of one co-ordinated piracy venture, Alex Greenwood, speaking for the prosecution, told Newport Crown Court that: “All defendants were engaged in the large scale commercial sale of counterfeit goods infringing both trademark and copyright” and  “In many instances identical copies of recordings were found at the addresses of each of the defendants, indicative that they were supplying each other. All defendants’ PayPal records reflected thousands of sales of similarly described recordings over many years”. Greenwood said Price and Russell were involved with the “manufacture and sale” of the recordings, while Pye and Godfrey were involved in their “commercial sale between November 2013 and October 2016”. Analysis of bank accounts in Godfrey’s name showed he made transfers of £101,518 to Pye, and his…

Gig-goers or bootleggers? Are phone recordings an irritant or potential copyright infringement?
Copyright / May 2020

COPYRIGHT Go to any stadium gig and you’ll be met with a forest of arms holding up mobiles and blocking lines of sight, so people behind feel irritated,” says Katie McPhee, Head of Marketing at Eventbrite who commissioned a new report by ComRes – 1,031 adults who attended a live event in the past twelve months were interviewed.  The research found that: • 70% found it irritating when others constantly take pictures or videos during live performances;• 69% would support more than minimal action to minimise the disruption;• 65% said using their phones to capture images could make them feel as though they are missing out on the live experience;• Nearly half (49%) took photos and videos with a clear majority (62% each) among those aged 18-24 and 35-44;• A large majority (81%) understood why an artist might not like videoing and photographing at the event;• A majority (69%) would support measures to reduce filming and photographing with phones. Artists, including Adele, Alicia Keys, Nick Cave, Kendrick Lamar and the late Prince have asked fans to refrain from using their phones during the performance. Rock bands White Stripes and Guns n’ Roses have famously banned mobile phones at their gigs….