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Articles contributed by Harbottle & Lewis LLP
Since 2007, Experience Hendrix LLC(Hendrix) and Times Newspapers Ltd (Times) have been litigating over the intellectual property rights (IPR) in a recording of a Jimi Hendrix concert that took place at the Royal Albert Hall in February 1969. In September 2006 Times distributed a free CD, or covermount, with each edition of The Sunday Times. A claim was issued against Times in March 2007 for infringement of copyright and performers’ rights under the Copyright, Designs and Patents Act 1988. In March 2008 the High Court held that Times had infringed the IPR in the recording and Hendrix elected to have an inquiry as to damages in respect of that infringement. The case has given rise to some complex issues as to the basis for the quantification of damages, and the inquiry is due to be heard next year, but the case is also a reminder of more general considerations in relation to remedies in IPR cases, and why the basis for quantification of those remedies can have far reaching consequences for a successful claimant.
The music industry received an unexpected Christmas present in December, when the Secretary of State for Culture, Media & Sport, Andy Burnham, announced a volte-face by the government in its position on extending the term of copyright for sound recordings. This is a signifi cant development in the debate on how long copyrights should last, an issue that is increasing in importance as more and more ‘modern’ copyright works reach the end of their term of protection.
The trading of information is a key element of the modern media and entertainment industry. But when the information at the heart of the transaction is personal or private, such as revelations of an intimate nature, this gives rise to considerations that do not apply to other transactions. This article explores the interaction between the developing law of privacy and the law of contract, and the issues that arise in practice, both for those participating in the making of productions and for media organisations who rely upon agreements with contributors.
Broadcasting standards are soon going to extend onto the internet. Companies running corporate websites will have to ask themselves over the coming year whether the Audiovisual Media Services (AVMS) Directive (2007/65/EC) will extend to them from 19 December 2009, the government’s target date for implementation.
FOR THE PAST THREE YEARS STAGECOACH THEATRE Arts, the national performing arts school franchise, has been leading a campaign to persuade the government to undertake a review of the entertainment licensing structure for children. The campaign culminated in May this year with Stagecoach’s delivery of a petition to Ten Downing Street. The petition featured more than 10,000 signatures demanding that new guidelines on the child licensing legislation be issued or that the existing legislation be overhauled.
SEQUELS, PREQUELS, REMAKES AND SPIN-OFFS EACH involve the re-use and adaptation of pre-existing characters and/or literary or dramatic plots. The economic potential of such ‘sequel rights’ in the literary and entertainment world (and other ancillary benefits of exploiting sequel rights, such as the increase in goodwill in the original character or plot and the effect on the reputation of its creator), mean that sequel rights can command a high value and are extremely sought after amongst publishers, producers and broadcasters alike.
IN APRIL 2008 THE HOME OFFICE TASK FORCE ON child protection on the internet published a guidance note offering good practice recommendations for the providers of social networking sites. The aim of the guidance is to enhance the online safety of children and young people and was drawn up in consultation with websites, mobile phone operators, children’s charities and academics. As well as providing an educational resource for parents, the guidance seeks to provide service providers with practical advice on how they should operate social networking sites to adequately protect young people.
THE RECENT COURT OF APPEAL DECISION IN BROOKER & anor v Fisher  will undoubtedly have caused a much welcomed sense of relief across the music industry. However, following that judgment, some questions do remain unanswered, and have the potential to cause further problems for those in the music business.
TELEVISION ADVERTISING IS WORTH AROUND £3.5BN annually in Britain. Individual prime-time slots can cost over £50,000, and it is anyone’s guess what fee a 30-second commercial during the Olympics might command. But, despite the scale of the advertising industry, advertising revenues in commercial television have taken a battering in recent years, as advertising spending migrates to the internet, slumping 5% to a five-year low in 2006. It is time to rethink the funding of the commercial channels.
It is a common gripe in the music industry that record companies include seemingly unfair provisions in their recording agreements, apparently to inflate their own profits. The most common of these provisions is the application of a ‘packaging’ or ‘format’ deduction. Whether an artist’s royalty should be subject to a packaging/format deduction, the level of that deduction and the circumstances in which it should be applied have always been contentious issues when negotiating a record deal.
In September 2007 a common position was reached in Europe for an Audiovisual Media Services Directive. Its main purpose was to extend television broadcasting regulation to video on demand (VOD) services and to allow some relaxation of television advertising rules. The final text of the Directive has now been settled with no material changes and was published as Directive 2007/65/EC on 18 December 2007. Its compulsory elements must be implemented by member states by 19 December 2009.
Time runs out for everyone in the end, even 'the boy who wouldn’t grow up'. First performed in 1904, and published as a book in 1911, Peter Pan by JM Barrie remains a major commercial success. On 31 December 2007, however, the copyright in Peter Pan will expire across most of Europe, 70 years after Barrie’s death.
Theatre producers will need to be more careful about misquoting (or at least making selective use of) critics’ reviews on posters, frontof- house billboards, press adverts and other show advertising when the Consumer Protection from Unfair Trading Regulations 2007 (Consumer Protection Regulations) come into effect by April next year. The Consumer Protection Regulations implement the Unfair Commercial Practices Directive and may make illegal the widespread practice in the theatre industry of extracting a positive word or phrase from a theatre review for use in a show’s publicity material even if it paints a misleading picture of the article as a whole.
It's a truism to say that for many businesses in the media and entertainment industries, their value lies in their content and intellectual property; their copyright in particular. It is uncontroversial to add that successful (old and new) media companies often grow at a pace so rapid that systems, paperwork and housekeeping can get left behind.
Sport and gambling have enjoyed a long and, at times, colourful relationship. With recent transformations in both industries, that relationship is under increasing pressure from outside influences and the impact of new self-regulation proposed by the gambling industry may prove to be crucial to the continued longevity of their association. Whether the outcome of such self-regulation will have the desired effect or will prove to do quite the opposite remains to be seen.
The television production supply market has always operated within a regulated framework. The establishment of Channel 4 in the early 1980s as a 'publisher broadcaster' encouraged the development of an independent production industry. Although the Broadcasting Act 1990 provided preferential terms for those dealing directly with ITV, under most commissioning agreements the broadcaster took a complete assignment of copyright in the programme (in exchange for cashflowing most or all of the budget), with producers being left with a small share in net revenues, and no real influence on the distribution of their programmes.
Publishers and authors may be breathing a collective sigh of relief following the recent confirmation by the Court of Appeal in Baigent and another v The Random House Group Ltd (the Da Vinci case) that The Da Vinci Code does not infringe the copyright in an earlier work, The Holy Blood and the Holy Grail.
Many publishers of fictional books assume that the classic phrase 'any similarities to actual persons, living or dead, or to any actual events, firms, institutions or other entities, is coincidental and unintentional' will protect them if a claim of defamation is made against them. This is not correct. The simple fact of the matter is that if members of the public associate a character in a book with a real-life person, even if that is not the intention, then they may be subject to a claim if an association can be made and defamatory allegations are published. Below are two examples of publishers that have faced such claims.
Recent decisions in the High Court and Court of Appeal reveal a judiciary keen to address the current gap in the law relating to the protection of private information. The decisions will no doubt send a shiver down the spines of the editors of tabloid newspapers and celebrity magazines as well as book publishers because they will have an impact on the type of material that can be published in the future. No longer will publishers be able to seriously claim that information that is simply gossip can be considered to be in the public interest.
The Charities Act 2006 received Royal Assent on Wednesday 8 November. The Act has many important provisions and makes welcome changes, especially of a technical nature. There are a number of areas where its provisions are of particular interest to arts charities, and these are outlined below. Although making welcome changes, the Act does fail to address some important issues at large in the sector and in that respect it is a missed opportunity.
Over the past year there has been a noticeable change in attitude by many tabloid newspapers and ‘celebrity' magazines towards the publication of photographs of the children of famous people. As a result, fewer photographs of children are being published and many of those that are published have the children's faces pixellated.
A new tax relief for British films came into force on 19 July 2006 and will apply to films that commence principal photography on or after 1 April 2006.
Bluetooth was the name of a Viking king who was best known for his diplomatic skills. Although his efforts have done little to soften the image of the Vikings, they have been belatedly recognised through the adoption of his name for the short-range communication technology that enables wireless devices to exchange messages and content.
Scotland's smoking ban caused controversy at the Edinburgh Festival Fringe this August when actors, producers and theatre managers threatened to rebel against it, claiming that it limited their freedom of artistic expression.
When in 1942, some three years into the Second World War, Churchill was asked whether the end of the conflict was in sight, he answered:
'This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.'
With analysis predicting that by 2010 Europe will have a 3G handset penetration in excess of 50%, what does the future hold for rights owners and operators alike in the febrile markets of mobile TV and video?
The Gambling Act 2005 (the Act) received Royal Assent on 7 April 2005. Implementation began in October 2005, when provisions introducing the fundamental concepts used in the Act and creating the Gambling Commission came into force. The full effects are not yet in place - the government aims to implement the Act gradually until September 2007, when the old legislation will be repealed.
The rise and rise of reality television has once again put the issue of format rights into the spotlight. The most recent dispute concerned Simon Cowell's show, The X Factor. 19TV made Pop Idol with FremantleMedia Ltd, a production company that also worked on The X Factor. It issued proceedings for copyright infringement against FremantleMedia Ltd, Simon Cowell and his production company, Simco Ltd, claiming that The X Factor was a blatant copy of Pop Idol and American Idol. In the UK, Pop Idol was a huge hit for two series and, in the US, American Idol, which is now into its fifth series, has had the highest ever ratings on Fox Television. The case settled before trial and so the precise ambit of format rights remains untested in an English court since the 1989 case of Green v Broadcasting Corporation of New Zealand.
Immigration has always been a political animal. Only three years after the Nationality, Immigration and Asylum Act 2002 was introduced the Home Secretary, Charles Clarke, announced yet another overhaul of UK immigration in February 2005 as part of the government
Artist's Resale Right Regulations 2006: justice for artists or a devastating blow to the British art
The new law on resale rights, which came into force on 14 February, is one of the most controversial pieces of legislation to hit the art world in recent years. The Artist's Resale Rights Regulations 2006 implement an EC directive, requiring the payment of royalties to artists when their work is resold.
It is hard to escape the changes that have taken place in the music industry over the last 20 years or so, both in terms of how music can be delivered to consumers (for example on-line and via digital means), and also in terms of the availability and diversity of the music itself.