INFORMATION FOR READERS:
This resource aims to give a brief overview of developments in Intellectual
Property law and other areas of law relevant to the music and entertainment
industries. Each item is categorised according to relevant areas of the
music or entertainment business, and by the date of uploading. Uploads
are undertaken regularly and are organised on a monthly basis. These updates
are designed to give general information for music and entertainment industry
professionals and students interested in these areas. These Law Updates
are not law reports or detailed references. Users who would like further
information should research the relevant area thoroughly. Relevant references
and links are therefore provided.
Law Updates also provides hyperlinks to other sites which may be of use or interest to legal professionals, academics, students and those involved in the music industry. These are provided at the end of Music Law Updates Archive under 'Music Business Law Links'. You will also find all of these links and other hyperlinks on the links page.
This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate in law from Kings College London and The City University. He also holds the degree of Master of Arts in Mass Communications from the University of Leicester. Ben is a fellow of the Royal Society of Arts. Ben acts as General Counsel for 3A Entertainments, one of the UK's leading concert promoters, and is Executive Producer for television of the Glastonbury Festival. Glastonbury is the UK's leading music and arts festival attended by over 150,000 people. For Glastonbury, Ben combines the role of managing the Festival's broadcast and other media rights alongside acting as General Counsel for the Festival. Ben's other clients have included the Prince's Trust, the Granada Media Group, Pioneer LDCE and British Telecom. Ben regularly writes articles and other material on music business and intellectual property law, contributes to books and is a regular conference speaker in particular on the live music industry. Ben is a Visiting Professor in law at Buckinghamshire New University.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
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CONTRACT
Artists
Sly Stone sues manager of twenty years
Recording star Sly Stone filed a lawsuit in Los Angeles Superior Court Thursday, claiming that his former manager committed fraud and breach of contract for more than twenty years. The lawsuit also accused Jerry Goldstein of breach of fiduciary duty and conversion for diverting, converting and misappropriating Stone's royalties and assets, and demands a full accounting from royalty collection companies to determine actual amounts taken, but they are estimated to be in the $20-30 million range. Robert J. Allan of Allan Law Group, who represents Stone, said in a statement. "Not satisfied with the royalties he diverted from Sly Stone, Goldstein, without Stone's knowledge or consent, registered his trade name -- Sly and the Family Stone -- with the U.S. Patent and Trademark Office as owned by a Goldstein company and borrowed millions of dollars secured by Sly's future royalties."
http://www.upi.com/Entertainment_News/Music/2010/01/28/Sly-Stone-suing-his-former-manager/UPI-78131264717313/
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CONTRACT
Artists
Dre looks for the Death Row money
Dr Dre has launched a lawsuit against Death Row Records claiming that he is owed royalties by the company. In legal documents filed in february he claims that he has received no payments from the company since 1996 and that the label's re-release of a collectors' edition of his 1992 album 'The Chronic' and a greatest hits package were without his consent. Dre’s lawyer Howard King told a judge at the Los Angeles Federal Court "When it came to paying artist royalties and honouring limits on Dr Dre recordings that could be released, the 'new' Death Row Records, to quote our client, 'forgot about Dre'. This lawsuit will make sure they remember". The hip hop star is seeking unspecified damages for breach of contract, false advertising and trademark infringement. Death Row was acquired by media company WIDEawake last year. http://www.dispatch.co.za/article.aspx?id=380461
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COPYRIGHT
Music publishing
Black Eyed Peas face Boom Boom bust
The Black Eyed Peas have been accused of plagiarism by rapper Phoenix Phenom who along with songwriter Manfred Mohr, have launched a lawsuit claiming that the Black Eyed Pea’s track 'Boom Boom Pow' is "virtually identical" to their song 'Boom Dynamite' which they say they had already submitted to the Pea’s Interscope label. Artists in the USA are increasingly facing claims both of unlicensed sampling and all out plagiarism – Britney Spears faced a succession of claims and recently Coldplay faced a claim from Joe Satriani over alleged plagiarism in Vida la Vida. You can view Boom Dynamite here: www.youtube.com/watch?v=0O0q_xBu2IQ – and make up your own mind. Me, I think it could be an interesting case!
The White Stripes have a gripe too …The musician who wrote the music for that US Air Force advert, aired during the US football Superbowl, has issued an apology to The White Stripes after the duo complained that it sounded very similar to their song 'Fell In Love With A Girl'. Songwriter Kem Kraft says the similarity is entirely unintentional. From the CMU Daily www.thecmuwebsite.com 29th January 2010 and see the CMU news Blog at http://newsblog.thecmuwebsite.com/
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COPYRIGHT
Music publishing, record labels
Kookaburra wins down under
More of the same – An Australian Court has found that Men at Work did copy Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. Down Under record company Sony BMG and publisher EMI Songs Australia had disputed the claim but today the Federal Court ruled in Larrikin's favour and Larrikin Music's lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they'd be seeking commenting “It depends. I mean anything from what we have claimed which is between 40% and 60% and what they suggest which is considerably less”. The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's has said that it wasn't ruling out further legal action. In an interview with ABC Australia’s The World Today programme music lawyer Stephen Digby said he was surprised by the court's decision saying “ think it could have gone either way but my initial reaction and also looking at this case my initial reaction following it has always been that this is going to be a very hard case for Larrikin to win” adding “it is certainly an identifiable and discernable piece within the song but as a gut feel, my gut feel was that it was probably not a substantial, sufficiently substantial in the song as a whole. Clearly the judge disagreed with me” and Digby says that he is looking forward to seeing the judgment in full and “I'm hopeful that in that he might give us guidance on what he considers to be a considerable, a substantial part or not.” The judge in the case, Justice Peter Jacobson, ruled on the matter saying: "I have come to the view that the 1979 recording and the 1981 recording of 'Down Under' infringe Larrikin's copyright in 'Kookaburra' because both of those recordings reproduce a substantial part of 'Kookaburra'. I am also of the view that Larrikin is entitled to recover damages ... for the infringements". He added: "I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of 'Down Under' or that it is the 'hook' of the song".
http://www.abc.net.au/worldtoday/content/2010/s2810101.htm
for an interesting opinion by Melbourne writer Helen Razer on the decision see http://www.smh.com.au/opinion/society-and-culture/band-are-victims-of-obstinate-rule-of-law-20100205-niie.html
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COPYRIGHT
Internet, all areas
Australian court holds ‘safe harbour’ for ISPs
Australia's Federal Court has ruled that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers, dealing a blow to content owners in a closely-watched lawsuit against Australian Internet Service Provider iiNet. Justice Dennis Conroy found that whilst it was shown that iiNet had knowledge that its customers were committing copyright infringement, this knowledge did not equate to "authorizing" the activities ruling “While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users”. The case was brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies and centred on the ISP’s liability for illegal file-sharing committed by its customers. AFACT had asked for damages and wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online. The ISP had refused to forward file-sharing warning notices to its subscribers on behalf of the studios, saying they violated privacy provisions in Australian law. Instead, iiNet had taken to forwarding the notices from copyright holders to the police, along with its own terms and conditions showing it prohibited copyright infringement.
In France, South Korea, New Zealand and Taiwan ‘three strikes’ laws are already in place and in the UK a similar regime is planned as part of the new Digital Economy Bill which Culture Secretary Ben Bradshaw believes will become law before the next election. That said, controversy still surrounds the role of ISPs and mobile companies in regulating their customer’s illegal activities, and in the UK Talk Talk’s boss Charles Dunstone has said he might fight the three-strikes law in court if his lobbying efforts to stop the anti-piracy system becoming law fails.
In all the countries where the new system is in place it has been brought in by the legislature but significantly the US has no such system. What the US does have is the decision in A&M Records, Inc. v. Napster, Inc (2001) where the United States Court of Appeals for the Ninth Circuit agreed that the defendant, the peer-to-peer file-sharing service Napster, could be held liable for contributory infringement and vicarious infringement of the plaintiffs’ copyrights and the decision of the Supreme Court held in MGM v Grokster (2005) which held that that those who induce infringement are liable for the resulting acts of infringement by third parties - "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
In Australia it seems that the content industries were hoping that a successful civil action, against an internet provider over the issue would set an important precedent – which the legislature could then formalize. There was, of course, no guarantee that the claim would succeed and it hasn’t. In the UK the BPI have been hesitant to take a civil law action against the organisers of the Oink file sharing service, accepting a case would probably have to go to the Supreme Court for a final ruling. Indeed precedents from jurisdictions around the world are mixed. In the UK itself, criminal charges against Oink founder Alan Ellis failed in the Crown Court and a prosecution of TV Link’s organisers Dave Rock and David Overton was thrown out by a Judge Ticehurst in Crown Court who allowed a ‘mere conduit’ (E-commerce Regulations 2002) defence and ruled that allegations under the Copyright Designs and Patents Act failed because there was no evidence that TV-Links made available to the public the films and shows they linked to. A recent claim by the IFPI against Baidu in China for providing links to infringing sites failed in the Beijing No. 1 Intermediate People's Court. In Norway in Bonnier Amigo Music Norway AS v Telenor Telecom Solutions AS, the District Court of Asker og Baerum was asked if ISP Telenor should block customer access to The Pirate Bay but held that an internet service provider was not liable as a contributory copyright infringer, since its role is not an "unlawful contributive" one, contributing in a "merely physical" manner only.
Conversely, back in 2005 the Higher Regional Court in Munich, in an action against Heise.de, upheld the Munich court of first instance which had ruled that creating a link to another website which offered the illegal Slysoft software for download could lead to prosecution for complicity; in 2008 a Danish court ruled in favor of the IFPI, and ordered the ISP Tele2/Telenor to block all access to The Pirate Bay although this decision is being appealed to the Danish Supreme Court; in 2009 a court in Holland ruled that access to the Pirate Bay should be blocked to all domestic internet users in an action brought by anti-piracy organisation BREINagainst The Pirate Bay.
Perhaps the January 2010 decision of the Italian Supreme Court illustrates just how difficult the issue is for the courts – here the court reversed its own decision and upheld the Court of Bergamo’s decision of 2008 saying that ISPs in the country must block access to The Pirate Bay, finding that sites that offer torrent files that link to copyrighted material are illegal. Now a Belgian appeals court is referring the question of whether ISPs should be compelled to filter file sharing traffic on their networks to the European Court of Justice and one can only hope that some sort of definitive ruling will come out of this. Belgian copyright society SABAM sued Internet service provider Tiscali (now Scarlet) several years ago, asking a court to force Tiscali to use a filter to screen out file-sharing traffic. This decision was then reversed after confusion over the purported effectives the filter. The Brussels Court of Appeal now has referred the matter to the European Court of Justice with some critical questions about how courts should deal with the tensions between content owners, infringers and ISPs and other intermediaries (see http://ipkitten.blogspot.com/2010/02/sabam-v-tiscali-goes-to-ecj-on-isp.html).
AFACT and iiNet had both presented their arguments in court last October and a ruling on the matter was not expected until later this year but the decision was fast tracked. Following the court hearings last Autumn, iiNet's CEO Michael Malone told reporters he was confident his company would win the case, saying: "We do not, and never have supported, encouraged or authorised illegal sharing or downloading of files in breach of the copyright laws".
In light of iiNet’s win, it is likely the Australian government will now give some time to reviewing copyright rules, which might result in a three-strikes system being introduced in all events – something content owners would surely prefer to a court precedent - although I imagine Australian ISPs and mobile companies will be just as vocal as Dunstone has been in the UK, telling reporters that if the Digital Economy Bill does become law his company will refuse to send out warning letters and will consider "all options" for challenging three-strikes through the courts saying "I think there is a problem if an industry thinks its business model will be saved by legislation. While the music industry focuses on getting these laws through, it won't be concentrating on reinventing its business - which it obviously needs to do as its model is out of date. Its customers have gone on strike and turned to piracy because the old model doesn't work. There is no need to pursue this letter-sending and disconnection policy, when [record companies] can just individually prosecute people who have violated copyright rules".
With Google announcing a new 1 gigabyte per second service optical fibre network in the USA, enabling users to download a high definition feature film in a few minutes (or for rural clinics to send 3D medical images over the networks) and President Obama promising $7.2 billion (£4.6 billion) for broadband infrastructure in the US, this topic is just going to get more and more interesting - and the decisions of the courts and legislation by governments will be critical in underpinning (or undermining) the future business models for record, film, TV and games companies as well as ISPs, mobile companies and other intermediaries.
http://www.telegraph.co.uk/technology/7079982/TalkTalk-would-fight-Digital-Economy-Bill-in-court.html
http://newsblog.thecmuwebsite.com/
http://arstechnica.com/tech-policy/news/2010/01/baidu-cleared-in-copyright-infringement-case-brought-by-ifpi.ars
http://news.bbc.co.uk/1/hi/england/tees/8461879.stm
http://torrentfreak.com/tv-links-triumphs-with-landmark-e-commerce-directive-ruling-100212/
http://www.opsi.gov.uk/si/si2002/20022013.htm
On authorising copyright infringement (UK) see http://the1709blog.blogspot.com/2010/02/let-your-kids-make-their-own-mistakes.html (CDV v Gamecock [2010])
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (Ninth Circuit, 2001)
MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005)
http://www.dmwmedia.com/news/2010/02/04/aussie-court-isps-not-liable-users039-copyright-infringement
http://www.linksandlaw.com/linkingcases-linkstoillegalmaterial.htm
http://www.dmwmedia.com/news/2010/02/08/italian-court-reinstates-isp-block-pirate-bay
http://cyberlaw.org.uk/2009/04/28/danish-pirate-bay-block-sets-sail-for-supreme-court/
http://www.scmagazineuk.com/the-pirate-bay-ordered-to-be-blocked-in-holland-following-court-case/article/140955/
http://www.telegraph.co.uk/technology/google/7207160/Google-to-trial-its-own-ultra-fast-fibre-optic-network.html
And read this interesting blog from Chris Cooke (Business Editor at the CMU Daily) http://www.stuffbyme.co.uk/post/A-long-blog-on-music-copyright.aspx and for more comment see http://www.smh.com.au/opinion/editorial/markets-and-laws-failing-in-face-of-net-piracy-20100207-nkqq.html
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COPYRIGHT
Internet, record labels
Jammie Thomas faces third trial
I imagine the mention of the names Joel Tenenbaum and Jammie Thomas-Rasset, the two high profile and currently convicted file swappers in the USA, probably drum up nothing but despair in the offices of the Recording Industry Association of America (RIAA) in light of the ongoing negative press the record labels face for ‘suing their own customers’ etc etc. Even so, the RIAA has rejected a judge's order reducing the damages awarded against convicted file-swapper Jammie Thomas-Rasset from $1.92 million to $54,000, meaning that the Minnesota single mum will now face a third trial on the issue of damages In her first trial, a jury found Thomas-Rasset guilty and ordered her to pay $222,000 in damages for copyright infringement. However, the judge later said he had erred in his instructions to the jury and ordered a new trial. In the second trial the jury again found Thomas-Rasset guilty, but this time awarded $1.92 million in damages. Then last month the judge from the second trial, Judge Michael Davis, sided with Thomas-Rasset's attorneys and reduced that jury award to $54,000, representing $2,250 for each song that Thomas-Rasset was found guilty of sharing - triple the statutory minimum of $750, but far far less than the statutory maximum of $150,000. To end matters, the RIAA then offered Thomas-Rasset an even lower settlement (thought to be $25,000) provided she ask the judge to vacate his ruling that lowered the damages; she refused that offer. The RIAA have now said that they “find it impossible to accept a remittitur that could be read to set a new standard for statutory damages - essentially capping those damages at three times the minimum statutory amount of $750” saying “this far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact". Let round three (and a half) commence.
http://www.dmwmedia.com/news/2010/02/10/fileswapper-headed-third-trial-copyright-charges
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COPYRIGHT
Internet, record labels
Tenenbaum appeals too!
Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the "severe" and "oppressive" damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a "hardcore" infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes if you are caught’ policy really did strike them as somewhat preposterous – it would be fascinating if Nesson’s defence actually sparks sympathy for the Recording Industry Association of America, routinely reviled and mocked in the blogworld for ‘suing its own customers. Times, they are a changin!
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/23/AR2010022305114.html
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COPYRIGHT
Live events industry, record labels
High Court rejects PPL tariff appeal
Last October the Copyright Tribunal rejected new rates that Phonographic Performance Limited (PPL) wanted to bring in, siding with the British Beer and Pub Association and the British Hospitality Association who were fighting three new tariffs. Somewhat understandably, the collecting society had argued that larger premises should more than smaller ones for use of music. Where PPL had been asking for a hotel or pub of under 400 sq metres to pay a tariff of £464.80 for a licence, the Tribunal stuck at a rate of around £110. Unhappy with that decision, PPL asked the High Court to review and overturn the Tribunal. Mr Justice Arnold has now rejected PPL’s appeal prompting a short statement from PPL which states as follows: "On the appeal, the Judge was limited to considering whether the Copyright Tribunal had erred in law, not whether the decision was one he would have made based on the evidence. Naturally the company is extremely disappointed that the Judge found there was no error of law although he identified some problems with the decision of the Tribunal. This leaves PPL with tariffs that it believes substantially undervalue the rights of its performer and record company members.” PPL also lost an appeal against tariffs set for recorded music played in shops – and will now have to refund retailers who have been overpaying since 2005.
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HEALTH & SAFETY
Live events industry
Four charged in Thai nightclub disaster
Four people have been formally charged over the New Year's Eve nightclub fire in Bangkok that left 67 people dead at the Santika nightclub in Bangkok. Three Santika employees and the lead singer of the band on stage when the fire broke out (Burn) have been charged with various counts of gross negligence. The fire broke out in the packed club as about 1,000 people were celebrating the start of the New Year. Hundreds of people were trapped inside the building, which had no proper fire exits, no sprinkler system, no emergency lights and was registered as a private residence. Witnesses said people were trying to find their way to the single exit using their mobile phones for light. The club was in an area where nightclubs were banned, the owners had failed to get an entertainment licence and the city architect’s signature on the building design approval had been forged according to a Ministry of Justice investigation. Thai police have been criticised for the slow pace of their investigation and there have been many accusations of lax enforcement of fire regulations. Band singer Saravuth Ariya has been charged with setting off the fireworks that police believe sparked the blaze. Three more people have been indicted over the fire but were not in court. Santika's co-owner and the head of the company that installed the pyrotechnics both said they were too ill to attend court, while a third person remains on the run.
Wise advice? "If you go to a nightclub in Bangkok, and you want to be safe, always check where the exit is, and stay close to it” Prasong Tharacha, Engineering Institute of Thailand
See http://news.bbc.co.uk/1/hi/world/asia-pacific/7981841.stm and for more on this topic see “After the Great White Tragedy – where now with crowd safety legislation” at www.musiclawupdates.com (Articles)
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LICENSING
Live events industry
ARTICLE LINK: The everlasting threat of noise
By Peter Coulson in the Morning Advertiser
An [noise] abatement notice is a potent weapon in a local authority’s armoury because the threat it poses is more or less everlasting. It just stays in the background, waiting for something to happen … with news that a number of venues in the UK are facing closure over noise complaints, sometimes from just a handful of people, Peter Coulson’s article is a practical read.
http://www.morningadvertiser.co.uk/news.ma/article/85895
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© 2010, Ben Challis