Entertainment and Media Law Update - Jan 2012

04-Jan-2012 Here we give you a glimpse of the recent developments in the entertainment, media and creative fields. If any of the issues raise concern for you or your business contact our IP, entertainment and media lawyers.

Local TV Framework -‘Local TV Licenses /Services’

The Government plans to announce the findings of a consultation into the framework for local TV. This will represent a step-change for the media market however it is hoped the new framework will create sustainable local TV services.

Google v Apple - What are the implications for the digital entertainment industry?

Google’s purchase of Motorola means that it will hopefully level the playing field in terms of competition within the digital retail arena. The deal represents Google’s biggest challenge yet to Apple, which has led the way in smartphone and tablet markets. Real competition ensures content owners and consumers as well as digital entertainment services are all better served.

Live Music - The new Live Music Bill

The Bill, which is currently going through parliament procedure, seeks to cut red-tape around staging live performances in small venues. The Local Government Association (LGA) had raised concern concerning the impact on local residents, however, in a surprising move the LGA now supports the bill after some important amendments. The LGA continues to be wary over the prospect of smaller venues exploiting a licensing loophole by letting audiences bring their own alcohol.

 

The Bill is now just one step away from the consideration of amendments, after which it should be given Royal Ascent and passed into law.

Neighbouring Rights for Concert Promoters

A German lawyer has identified a neighbouring right for concert promoters under the German Copyright Design and Patents Act, which will provide a new source of income for concert promoters all over the world, provided that the income is collected by a society on their behalf. Promoters will have a right to participate in the revenues made by the commercial exploitation of recordings of their concerts in the German market, regardless of where in the world the concert was performed.

Streaming – Good or Bad for Artists?

The Black Keys have joined Coldplay and other artists who have spoken out against streaming music services, saying the business model ‘isn’t feasible’. It’s a point that has been expressed by other artists in the past few months, with one artist making a more strikingly clear point when he claimed that he was paid under £10 for almost 100,000 streams. This is not sustainable for any artist hoping to make a decent living from their creation. It will however, be good for new artist promoting themselves.

The Cliff Directive

Sir Cliff Richard and other musicians have fought long campaign over many years to extend the copyright protection of sound recordings (namely, master recordings). The campaign has been successful and the European Council has voted to increase the period of protection from 50 to 70 years. The change has been welcomed by many in the industry, including the record companies who own the sound recordings, but more so with the musicians who will continue to receive royalties from the recording they made decades ago.

What’s in a Name and what is it worth?

Thinking of a good band name is quite an important step on the way to fame, fortune and the law courts. The old music industry adage “where there is a hit there is a writ” is sadly very true. So while on the journey to fame and fortune, it’s best to try and stay clear of the law courts. One way of doing this is, after carefully choosing a band name, to take all necessary steps to protect it, because it could be worth a fortune. This is particularly true also for band’s from the 60’s and 70’s who failed to register the band name, who are still playing the live circuit and have had many changes of members, because relationships can turn sour and result in arguments over who is the rightful owner of the band name. The cost of a trade mark application is relatively low and is a very good investment. It should be treated the same as buying a new guitar or drum kit or mixing desk - it is an asset. The same advice applies for corporate entities, athletes, TV and sports personalities.

Woman convicted in Scotland for file sharing

Anne Muir has become the first person in Scotland to be convicted for illegally sharing music files online. Muir pleaded guilty at Ayr Sheriff Court last month to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988. Muir admitted to distributing £54,792 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application. Following an initial investigation by BPI (British Recorded Music Industry) and IFPI International Federation for the Phonographic Industry), a formal complaint was made to Strathclyde Police. Officers subsequently obtained a search warrant for her home at Gordon Street, Ayr, and seized vital evidence, including computer equipment.

Moral Rights and Sampling – The case against Jay-Z

A US judge has allowed a lawsuit against Jay-Z and a number of other entertainment companies including Universal and MTV to proceed in relation to his hit record from the year 2000 'Big Pimpin'. The case is based on elements of Egyptian copyright law, sampling an Egyptian song and the interpretation of moral rights.

 

It appears that Jay-Z had licensed the piece of music in question by Baligh Hamdy, which comes from the 1960 Egyptian film 'Fata Ahlami', but – according to the now deceased author’s family – the licence was to make a mechanical copy of the piece of music (a straight forward sample of the relevant section of the song) not to adapt it. It is considered that the adaptation itself was a 'mutilation' of the original work, and therefore the moral rights of Hamdy's descendents have been infringed.

 

The case was brought by Osama Ahmed Fahmy, a nephew of Baligh Hamdy. Judge Christina Snyder did not concur with the defense arguments that principles of Egyptian law had no place in a trial, and let the case proceed stating Hamdy’s family had a strong enough case under US law. US copyright law does recognise the concept of moral rights but, as in the UK, it is a weak part of the copyright which has not been applied to sampling. The key point here however is the US court must recognise and apply Egyptian law under international copyright Berne convention rules.

Alone Again - Sampling

In the early days, hip-hop music was a sampling free-for-all where everybody took whatever they liked from other artist recordings. But things changed after the release of Biz Markie’s “I Need A Haircut” LP. On the track “Alone Again,” Biz sampled Gilbert O’Sullivan’s 1972 hit “Alone Again (Naturally)”, so the publishers, Grand Upright Music Ltd, sued Warner Bros. Records for copyright infringement. The U S Court in New York ordered an injunction against Warner, and from that day forward, all samples used in hip-hop and any other songs had to be cleared for use in new songs by granting permission, and in most cases paid for before being used.

Truth Hurts - Sampling

Released in 2002 “Addictive,” a song produced by Static Major and DJ Quik, was actually a rip off of a Bollywood film soundtrack titled “Thoda Resham Lagta Hai,” released in 1981 by Indian singer Lata Mangeshkar. As Truth Hurt’s song rose up the charts (to no 9 on the Billboard Hot 100 and no 3 in the UK charts), the owner of the original sample, Saragama India Ltd. sent a cease and desist to Aftermath Entertainment, the artist’s record label. It was ignored, so Saragama filed a $500 million dollar lawsuit against Universal Music Group to prevent further usage of the tune.

 

Alas I had a hand in bringing this case, memories of flying into Houston, Texas sat up into the small hours in a hotel room going through evidence, while Houston was having one of its rare nights of rainfall.

The reality of sales on iTunes

In a report Digital Music News revealed that a Universal Music Group artist makes roughly 8% of the revenue generated from their music sales on iTunes. This means selling 1000 records would land the artist $80 (approx £52). Sure, artists make a larger proportion of their money on the road as opposed to in record stores nowadays, but this low payout is going to hurt everyone including megastars like Jay-Z and Adele. Maybe now it's easy to see why so many indie bands that went major didn't do so well for themselves.

To find out more about our IP, entertainment and media, and sports law services contact Rudi Kidd

---