Monthly Archives: April 2009

Beyond The “Pale”?

Copyright in music is a very topical issue against the backdrop of the music industry losing money at a terrifying pace and moves to extend the duration of musical copyright beyond 50 years to allow artists such as Cliff Richard to continue making royalties from their earliest work, and it is about to be brought into the public eye again in the wake of what could be a landmark case on the ownership of copyright in one of the most played pop songs of all time – Procul Harum’s “A Whiter Shade Of Pale”.

The song was first released in 1967 to immediate critical and commercial success and has been covered over 800 times is perhaps best known for its surreal lyrics and signature Hammond Organ melody, which are two of the main sticking points in the hearing taking place today at the House of Lords. The hearing is the latest development in the claim against Gary Brooker, Procul Harum’s lead singer and lyricist and Matthew Fisher, the band’s keyboard player who claims that he wrote the main melody of the song and as such is entitled to a share of its copyright. This is the first time that the House of Lords has been asked to been asked to decide who owns the copyright in a pop song.

 

Fisher’s case began in 2005, with the Court originally ruling that he had made a “significant contribution” to the song was in fact a 40% joint composer long with Brooker, meaning that he was entitled to a considerable share of the huge amount of royalties generated since its release. However, the Court of Appeal overturned this ruling last year on the basis that it had taken Fisher nearly 40 years to bring his claim to Court and not taking any action against Brooker in the meantime. Fisher, on the other hand, claims that he spent the intervening period meeting with Solicitors, all of whom told him he stood no chance of successfully claiming for back royalties on the song until 2002, when a case involving the Bluebells Hit “Young At Heart” changed the legal landscape by awarding Robert Beckingham, who came up with that song’s iconic Violin melody, a share in the copyright of the hugely successful song on the basis that he had made a similar “significant contribution”.

 

“The Lords are dealing with an issue which is potentially huge for the music industry, and could set a very dangerous precedent. The normal rule is that whoever composes a song becomes the owner of the copyright in it. However, many songs tend to be written in jam sessions with input from more than one musician, and sometimes from session musicians who aren’t members of the band. Fisher eventually left Procul Harum, who have always claimed that he was happy for his distinctive organ riff to be used on the song.

  

What’s interesting is that Fisher’s melody was itself inspired by Bach’s Air on a G String, but is still arguably the most recognisable element of the song. Over the past few years, the Courts have dealt with a number of cases where session musicians who are only expected to come into a studio, contribute to a recording and leave after being paid their session fee have successfully claimed a share in the final song’s copyright and have been awarded substantial damages to cover the royalties they would have made had they been credited as a composer when it was released.

 

Artists will probably now be looking over their shoulder, especially if the most distinctive parts of their most popular songs were created by session musicians who now feel as if they never got the recognition they deserved. Musical copyright is big business as songs can be sold over a much greater number of formats than at any time over the past 50 years, such as MP3s – Coldplay are currently involved in a case brought by Joe Satriani over the copyright in “Viva La Vida”, and the Verve famously lost pretty much all of the money they ever made on “Bittersweet Symphony” to the Rolling Stones, who came up with the melody line around which the song was based.

  

Brooker has always claimed that Fisher always appeared to be happy with the arrangement he made with Procul Harum, but it looks as if the Lords are going to have the final say. The lesson for any artist here has to be to sign a contract with any session musicians you use to ensure that you have set out any arrangement on copyright and royalties in the final song. The vast majority of modern artists will be well aware of the risks, but we could see a great number of cases over older songs flooding the Courts.”

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Red Leicester – How to drive a Wedge between Cheesemakers

Trade Marks are becoming more and more important to businesses, as highlighted by the Times’ report on an attempt to secure a protected “appellation of origin” for a traditional version of Red Leicester cheese.

Appellations of origin are nothing new, and are perhaps best summed up by the fact that “Champagne” may only be used to describe a sparkling white wine produced in certain areas of France on the basis that the word itself is a special “mark” which can only be used by producers in a certain locality, with Parma Ham and Melton Mowbray pork pies being other examples. The idea behind obtaining an appellation is to render production of a product outside a certain location illegal. 

Based on these decisions, a number of Leicester Cheesemakers have applied for recognition of the tem “Red Leicester”. However, one major issue is driving a wedge between them; they can’t agree on what the recipe for the cheese should be. Long Clawson, one of the Country’s biggest producers of cheese, add a “starter culture” to the cheese based on a Swiss method, whilst David and Jo Clark – the producers of Sparkenhoe Leicester Cheese – only use a traditional method utilising raw milk which has seen their product become very popular in specialist delis and with gourmets around the country.. The Clarks claim that the additive makes the final cheese sweeter and nuttier.

After a surge in popularity, local Councillor Matthew O’Callaghan championed the joint application for the appellation, however he now admits that the inability to agree upon the recipe has proved impossible to overcome.  

Appelations of origin can be very important and extremely valuable to local producers in a particular area. Unlike Champagne, however, there are a huge number of ways in which a cheese can be produced and as such it’s very difficult to be completely sure over what you are trying to protect. Appellations come under the remit of trade mark law, which provides that the be granted, an appellation of origin must have “a quality and characteristics which are due exclusively or essentially to its geographic environment”. In this case, adding an ingredient widely used in the manufacture of swiss cheese appears to have watered down the application.

 

Arr, Jim Lad! Pirate Bay founders jailed

The Founders of “The Pirate Bay”  the world’s most high-profile file-sharing website, have been jailed by the Swedish Court for a year following their conviction on charges of criminal copyright infringement in a major landmark verdict. They were also ordered to pay 30m kronor (£2.4m) in damages to, amongst others, Warner Bros, Sony Music Entertainment, EMI, and Columbia Pictures.

 

 

Pirate Bay have almost certainly cost the entertainment industry billions, especially in light of the fact that they were the last major illegal download site left operating after the action taken against Kazaa and Grokster. The verdict is a major victory for the Music Industry and should go some way towards overcoming the public’s attitude that music piracy is acceptable, but the major labels still need to remember that they need to keep CD prices down and back catalogues available for legal download if they intend to change the illegal downloading culture.There’ll almost certainly be an appeal. Half of the original charges were dropped during the Trial itself, with the main offences now relating to assisting in making copyright material available under Swedish Law. The chances are that, if the case were to be run in the UK, the offence would be one of authorising copyright infringement or transmission of copyright material electronically. The law is still untested in the UK, however, and it will be very interesting to see if any appeal or similar case here will be successful as the ruling is a pretty heavy sentence arising from the notoriously lax Swedish Copyright system.

 

Pirate Bay have behaved like the Robin Hoods of the Illegal Downloading Industry and have taken on the record labels very publicly. The difference between them and other file sharing sites such as Napster is that Pirate Bay was never actually used to transfer copies between users – it gave “torrent” links to their users’ computers, which is were the movies, games and music could be downloaded. The Robin Hood image, however, took a serious bashing when it turned out that the site’s owners appeared to be making millions from advertising via a front company.

 

The message to downloaders and anyone running such sites is getting clearer all the time – the music industry is now taking you very seriously.

Do UK Copyright Laws make Criminals out of iPod owners?

A survey by Consumer Focus of Intellectual Property Laws in 16 countries, including the USA, Australia and China, has found that UK copyright laws are the most out of date and claims that they “needlessly criminalize millions of people” as a result.

Ed Mayo, the chief executive of Consumer Focus, said: “UK copyright law is the oldest but also the most out of date. It’s time our copyright law caught up with the real world. “The current system puts unrealistic limits on our listening and viewing habits and is rapidly losing credibility among consumers. A broad ‘Fair Use’ exception would bring us in line with consumer expectations, technology and the rest of the world.”

The survey also found that more than half of British consumers thought burning a CD they had bought to their PC or iPod was legal, though it is in fact a copyright infringement.

Copyright is hugely important for the music industry as it is the main protection for an artist’s work and the main way in which record companies make money. Copyright protects music as soon as it is recorded, and the copyright in a song or entire album belongs to either the Band or their label, and it gives them the right to control if and when their music is copied and made available to the public to allow them to charge fees for doing so, which, so the theory goes, would encourage other artists to carry on making new music.

However, UK copyright law has not been able to keep up with the pace of technology. In the 80s, many LPs carried a piracy warning that “Home Taping Is Killing Music” as cassette recorders allowed copies of albums to be handed out without any control by the Music Industry under the fear that LP sales would fall if people stopped buying LPs that their friends copied for them, which they did. We are in an even worse situation now as the Music Industry is terrified of the impact that illegal downloading is having upon CD sales.

The Copyrights, Designs and Patents Act 1988 states that it is an infringement of the Artist or Label’s copyright if any third party copies a “work” or issues a copy of a work to the public, meaning that anyone who copies a song or an album could not only be sued but could also be prosecuted. This was fine when all we had to worry about were cassettes, but the Act never saw MP3s or the iPod coming, which have seen consumers transfer much of their CD collection onto an MP3 player so that they can carry it around with them.

The public at large thinks that this is perfectly legal, but what many don’t appreciate is that by burning a CD onto your PC or iPod, you are actually copying it, which is illegal even if only you listen to it! The Government did flag this up as an issue as part of the Gowers Report on Intellectual Property a few years ago and has already recognized the need for a change in the law, but that change was due to be ratified by the start of this year. Downloading from iTunes is legal as you’re paying for the copy of the song or album which you download, but when you pay for a CD what you’re actually permitted to do is listen to it in your own home and that’s about it.

In my opinion, changing the law would do an awful lot to clarify the situation and make consumers aware of exactly what is and isn’t permitted. The real problem lies with large-scale downloaders who either download thousands of songs without paying for them or who copy and sell pirate versions of major releases.  The US has a “fair use” exception to Copyright Law where any act which doesn’t actually lead to the Copyright Owner suffering economic loss is generally permitted, and maybe it’s time that the UK looked at something similar sooner rather than later. After all, I’m sure that neither the record companies or the government will want to follow the black letter of the law and take action against an entire generation who is growing up with an iPod rather than a CD player.

Don’t Panic! – Coldplay v Satriani

In December last year, Coldplay, one of the world’s biggest bands, were accused of plagiarism by legendary guitarist Joe Satriani who claimed that the phenomenally successful title track of Coldplay’s multi-platinum album “Viva La Vida” infringed the copyright in his instrumental track “If I Could Fly”.

Satriani claims that the two songs are so similar (in that their melody lines are almost identical) that he should be entitled to damages  amounting to “any and all profits” which Coldplay have made from one of their most successful releases, which was their first UK number 1 single and part of an iconic advertising campaign for the iPod. Coldplay claim that Satriani’s song is not original enough to be protected by copyright and that any similarity is purely coincidental and was “just as much of a surprise to them”.

“Now that Coldplay have filed a defence, it’s much easier to get an idea of how this case is likely to be decided. This is a situation that has come before the court a number of times before, perhaps most famously when George Harrison was forced to pay damages for copyright infringement after a court ruled that “My Sweet Lord” was too similar to “He’s So Fine” and more recently when the Verve were forced to reach a settlement with the Rolling Stones over the use of the melody line from an orchestral version of “The Last Time”, and effectively hand over all of their royalties for their most popular song, which many believe led to their split during the ‘90s.

Copyright protects songs in a number of ways. Lyrics are protected as literary works, and recordings are protected separately. When the Court is asked to decide if two copyright works are so similar that the more recent is an infringement of the original, they will need to consider whether or not a “substantial part” of the original was copied. This is a qualitative rather than quantative test, meaning that the issue of exactly how much has been copied is not always as important as the substance of what has been copied. In the Verve’s case, they used a very distinctive melody line from “The Last Time” and based an entire song around it. P Diddy did the same with “I’ll Be Missing You”, based on “Every Breath You Take”, but he paid a licence fee to use the guitar riff.

Satriani claims that the melody line of “If I Could Fly” has been copied, but it’s not at all certain that the Courts will rule in his favour. It’s entirely possible that the two songs were composed independently, based on the same basic set of chords. Copyright law allows for this, and Satriani will have to prove to the Court’s satisfaction that Coldplay did actually copy the original. If Satriani was to win hands down at trial, he could potentially be awarded an “account of profits” from Coldplay, which would mean that they would have to hand over all of the profits generated by the song. Such awards are rare, but can be made, alongside an additional punitive award of damages if a copyright infringement is seen to be sufficiently flagrant.

However, I doubt seriously whether this case will ever reach trial. The Courts will be very careful not to set a precedent in this case, Satriani has already indicated that he would be willing to settle out of Court and Coldplay seem as if they intend to fight. Whether either would want to take the risk of having this decided by a Judge at trial is the real question. I would imagine that both acts would want to concentrate more on their live performances than having to perform well in the witness box.

X marks the spot

Illegal downloading was taken to a new level this week when a virtually complete DVD-quality copy of one of the summer’s biggest blockbusters was leaked in its entirety over the internet and downloaded over 100,000 times before the involvement of the FBI.

X-Men Origins: Wolverine is the latest in 20th Century Fox’s hugely successful X-Men Franchise and, as well as being touted as one of the year’s biggest movies, is a very important release for Fox, who have not had a major summer hit for the last few years and are banking on the success of Wolverine to fund other projects.

The leak of the entire movie rather than individual scenes or a script is pretty much unprecedented. The movie is protected by Copyright, which will cover the movie itself, its script and it’s soundtrack.

Anyone copying the file and passing it on will infringe copyright and could be liable for damages or even a fine or custodial sentence.

The UK has only seen a few copyright actions being brought by major studios in this kind of case, but this is a very serious matter for Fox, who are afraid that much of the core audience for the movie will now not pay to see it, either because they have read a negative review of the leaked copy (which apparently is missing 15 minutes of footage and has incomplete special effects and music) or because they’ve simply already watched it. This may mean that action being taken against copiers may be more likely in this case.

Many major movies are now released on the same day worldwide to avoid the spread of illegal copies, so this is a major blow for Fox, who could potentially lose millions at the box office as a result of the leak.

The FBI is already working on tracing the source of the leak and are pushing for a criminal sentence, which is believed to be a special effects company.

This will probably lead to even more scrutiny of the average movie-goer, as many cinema chains have already begun searching bags for recording equipment on a regular basis.

If there are copies in the UK, then anyone in possession is at risk. More importantly, this is the nightmare scenario which the anti-piracy advertisements have warned about for some time.

It just goes to show, however, that security in the Movie industry is still perhaps not as tight as the studios would like it to be.”