THE LAW BEHIND… Music

Think something so simple and pure as music is light on law? Think again Jodi Bartle and Gemma Charles report on a sector that is more heavily regulated now than ever before


Busking

Remember the days when walking around old London Town meant being serenaded/accostedbysome tambourine-wieldingsongster attempting to sing some half-forgotten classic in exchange for your hard-earned cash? Well, those carefree days are gone. Busking has gone all official.

This time-honoured tradition of the medieval and romantic wandering minstrel is now subject to some rather unromantic licensing laws. Potential warblers willing to ply their trade on the streets must now adhere to some basic licensing rules. In a nutshell, a busker may not: cause or promote a public disturbance; block pathways or fire exits or impede traffic; play louder than the volume limit set by the local authority; hinder or prevent the passage of any emergency service or personnel; or actively request money by asking for a donation or shaking a collection box. Some councils and railway stations even require a busker to audition before a permit to sing or play is granted, as seen in a recent London Underground busking trial.

Since the busking scheme got off the (under) ground, some 2,000-odd sessions of vastly improved melodies now emanate from the Tube stations per week.
According to Jerry Smith,spokespersonforLondon Underground, the legal team behind the initiative had to meet health and safety requirements before the auditioning process could be approved. The buskers have to sign a terms and conditions form, which says they agree they will only play on designated pitches. They also agree they will not solicit, drink or smoke while on the pitches. These terms are all in line with basic bylaws, says Smith.

And it is not just the Tube travellers who are benefiting from the scheme. According to Smith, the British Transport Police have spent much less time ensuring buskers are towing the line. Now they can concentrate on catching pickpockets. So, everyones a winner.

Forbidden fruit

Apple Computers is facing down The Beatles record company Apple Corps in the latest episode of their long-running trademark dispute.

In the early 1990s they came to an uneasy truce: Apple Computers was allowed to use the Apple name for computers, while The Beatles could use it for music.
However, the launch of the US computer groups internet-based iTunes music service, which allows users to buy songs online, has sent Maccas lot into a strop. The service was due to be launched in the UK this year and Apple Corps says this amounts to a breach of their earlier agreement and is suing the computer company and seeking an injunction.

So far it is 1-0 to The Beatles. Apple Computers applied to have the case heard in California, its home territory, but this was thrown out by the judge, Mr Justice Mann.
The proceedings kicked off in a merry vein. At the start of the hearing at the High Court in London, Judge Mann owned up to having an iPod and asked whether it disqualified him from hearing the case.

Lord Grabiner QC, for Apple Computers, replied that he was delighted,adding:Wewould perhaps have sent you one free if that would not have been improper.

Censorship in the US

The issue of censorship in music has hovered around the periphery of pop since Elvis and his gyrating pelvis were cut from view on The Ed Sullivan Show in the mid-1950s. Cut to 2004. The US is still reeling from the Janet Jackson boob-flashing mishap, and censorship, never far from the upstanding right-wing US psyche, has re-entered popular culture with all the force of a ripped corset.

One week after the Jackson/Justin Timberlake debacle, the NFL pulled NSYNC member JC Chasez from a half-time performance at a Pro Bowl all-star football game in Honolulu. Chasez was originally going to sing his latest single, Some Girls (Dance With Women), but the nervy NFL asked him to change the song to the presumably tamer Blowin Me Up (With Her Love). Not content with the change of plans, the NFL then asked the brackets-loving Chasez to change the words horny
and naughty, which are contained in the song, before finally pulling the performance altogether.

A slightly different scenario recently played out in the Arizona branch of Tower Records. Maricopa County Sheriff Joe Arpaio asked the music giant to pull a locally-produced rap CD from its shelves because it contained anti-police lyrics and a drawing of the sheriff in a compromising position with a dog. In a letter to the retailer and obviously hitting a raw nerve Arpaio accused the company of aiding in the distribution of a CD that promotesmurderandgross behaviour. Tower Records removed the two remaining discs from its shelves.

Niri Shan, media and entertainment lawyer at Taylor Wessing, was amazed that the JC Chasez performance was pulled. The UK is much more broadminded than the US. Any real risqu短usic in the UK is simply subject to the rating system, with warnings on the label, he says. As for the sheriff, Shiri notes that the US has rights of personality, allowing protection of a persons image; while in the UK, the sheriff would have recourse to a defamation charge. That rapper certainly wouldnt get on Top of the Pops here, as he would be breaching standards of taste and decency, he says.

Passport to play

To host a live event, it is necessary to gain a public entertainment licence. For the last three years Burges Salmon has been in charge of this task for its client Bristol City Football Club, which began hosting annual gigs at its Ashton Gate ground three years ago.
Chris Pritchett, now an assistant at the firm, helped to organise the licence as a trainee for the first event, called The Big Gig at the Gate, which was a pop fest featuring the likes of Liberty X, Blue, The Commitments and Atomic Kitten.

The licence covers everything from noise control and nuisance to public safety and traffic management, and it must also be compatible with the artists show contracts.

It can be quite difficult, as everyone wants to fight their own corner and they have their own things that theyre concerned about, but the overriding factor is safety, then that its good and makes money, says Pritchett.
As well as meeting all the stars backstage, Pritchett actually had an influence over the music. A hapless roadie for The Commitments forgot half of the bands drum kit and, following a fruitless search around Bristol for a replacement, Pritchett, who himself is in a band, persuaded his drummer to lend his drums to the band.
That wasnt in the job description, he comments.

Updating the law

In April, the snappily-titled Directive of the European Parliament and of the Council on Measures and Procedures to Ensure the Enforcement of Intellectual Property Rights came into force.

It ensures that in about two years, once the deadline for implementation has been reached, all member states will have a similar set of measures, procedures and remedies available for rights-holders to defend their intellectual property rights if they are infringed.

John Enser, a partner in Olswangs media, communication and technology group, says it was introduced to update copyright law for the digital age.
Its origins go back to a 1996 World Intellectual Property Organisation (WIPO)treatyonperformers copyright, he says. The US brought in its directive in 2000.
The main driver is to update ambiguities and deal with electronic on-demand downloads. The second thing its done is to introduce a whole lot of rights and remedies to protect digital technology through Articles 6 and 7, says Enser.

He adds that the next big challenge for the music industry is to crack down on physical counterfeiting and piracy, such as the illegal pressing of CDs.

Napster

Watch out kids, because the music giants are keeping an eye on you and your thieving downloading ways. Napsters collapse and resurrection is an old story that can be read as a cautionary tale careless downloading of music from illegal MP3 sites might just get you sued.

Created by a US teenager in 1999, Napsters simple concept of file-sharing introduced novel and massive problems for the music industry. Napsters software itself was not illegal, but it did make available an automated way to copy copyrighted material.

Vanessa Barnett, an e-commerce solicitor at Berwin Leighton Paisner, says that people in the UK tend to get confused about the laws surrounding copying CDs. In the US, you can make a music recording for your own personal use. But in the UK, burning a CD is a technical infringement of the law, she explains. If you burn a CD into your hard drive and another into your car, thats a low-risk technical infringement. If, however, you had peer-to-peer software and all your music was on the internet and was accessible to everyone, that would be a much higher-risk infringement.

A risk with teeth, if the US is anything to go by. In September 2003, the Recording Industry Association of America (RIAA) arrested a 12-year-old New Yorker for uploading 1,000 copyrighted music files on the worlds most popular file-share programme and then making them available to other users.

Barnett says it could be just a matter of time before the British Phonographic Industry (BPI), the UK equivalent of the RIAA, follows suit. A crackdown on downloaders has started to happen in Europe. While it hasnt begun in the UK yet, its fair to expect that it will, she warns. If you had thousands and thousands of MP3s available 24 hours a day, then Id suggest you might just want to think about what youre doing. After all, as Barnett says, the illegal downloading of music is the equivalent of walking into a shop and taking CDs off the shelves and out the door.

The Licensing Bill 2003

The Licensing Bill 2003 struck fear into the hearts of many a freewheeling folk singer throughout England and Wales.

Before the bill was passed, it was a widely-held belief that the days of impromptu performances were numbered; that making entertainment illegal unless it took place in a licensed venue would spell the end
of the entertainment tradition in England and Wales. And what, it was asked, would become of Christmas carollers?

The bill was aimed at regulating the entertainment provided in pubs and the prevention of antisocial behaviour, noise nuisance and crowd problems. The licensing reforms meant that all pubs and bars in England and Wales would require a licence for entertainment, even for unamplified music. As the process of getting a licence is not a simple one, it was feared that lots of pubs and bars that currently put on music would not bother any more. People doing small solo or duo gigs would be seriously affected, as singing unlicensed in a pub has the maximum penalty of 20,000 and six months in prison.

In January this year, some 500 musicians wore gags outside the Houses of Parliament in protest against proposals contained in the bill. Protesters pointed out that the bill was drafted in such a way as to cover
just about any live entertainment anywhere, potentiallyincluding performing a play, boxing, wrestling, dance, busking and carol singing.
In response, the Government made some amendments to the bill, mollifying morris dancers all over England and Wales. Essentially, the act has exempted folk dance from the licensing requirements, as well as any accompanying music. Churches are also now exempt from the reforms and village and community halls do not have to pay fees for entertainment licences, although they will still require a licence in order to enable issues of nuisance and public safety to be monitored. The best news, though, is that carollers can continue to spread Christmas joy and fa la las without fear of falling foul of the law.

Trouble in paradise

Where theres a hit, theres a writ, the saying goes. The nature of bands creative types, egos galore, verbal agreements, grasping managers and the like makes an appearance in the High Court almost an inevitability.

Pity poor old Tony McCarroll. The original drummer of Oasis was kicked out by the bands leader Noel Gallagher on the grounds that his drumming was not good enough.

McCarroll was claiming for a 20 per cent share of the bands royalties, which would have been around 18m, and Oasis was happy to see him in court to contest this. Instead, at the eleventh hour, he backed out of a courtroom showdown, settling for a paltry 600,000.
In the case of Tony Hadley, Steve Norman and John Keeble, three former members of Spandau Ballet, they claimed their help in creating the bands new romantic image constituted a right to the royalties, and took songwriter Gary Kemp to court. They were unsuccessful and found themselves saddled with a huge legal bill. Just to rub salt into the wound, in 2002 Hadley et al planned a tour to cash in on the growing interest in 1980s bands and clear some debts, but were prevented by Kemp from using the Spandau Ballet name.

Chris Pritchett, an assistant at Burges Salmon who is the lead songwriter for his band Minerva, says: Bands work well, but as soon as they have some success and theres some money to be derived, friendship and creativity become less important.