Thanks to a burgeoning work load, we’re looking for two litigation solicitors with between two and five years’ PQE and relevant experience of the media and entertainment industries.

The successful candidate will join our litigation department handling the full range of IP and contractual issues which arise in the entertainment industry including employment disputes as well as privacy and libel work.

Please send your CV to:

Taran Wiseman
Lee & Thompson
Greengarden House
15-22 St Christopher’s Place
London
W1U 1NL

Email: taran@leeandthompson.com

Lee Stone of Lee & Thompson’s Film Department lead the team advising Vertigo on all of the financing, production and distribution agreements for the film (Vertigo Distribution acquired all UK rights) and, together with Will Everitt from Lee & Thompson’s Music Department, continues to advise Vertigo on all ancillary deals relating to the film, including the soundtrack album, the facebook app and various merchandising and licensing deals.

We would like to wish Vertigo continued success with this breakout hit and hope and expect Vertigo to go from strength to strength.

Lee & Thompson partner, Mike Brookes, who acts for both Ms Powell and Mr Andre, told the Court that Price had libelled Ms Powell whilst a guest on the Graham Norton Show, by alleging that she and Mr Andre had had an affair, even though Ms Powell was engaged to Neville Hendricks, the father of her child. The BBC  had quite sensibly edited the accusation from the broadcast however the story was quickly picked up by various tabloid newspapers.

“To be accused of infidelity, with one of her longstanding and high-profile clients, was obviously very damaging and distressing for Ms Powell – the most obvious reason being that the allegation was completely untrue,” the Court was told.

Price, who was not in court, but had a statement read out by her solicitor, accepted that the allegation was completely untrue, apologised unreservedly and had agreed to pay substantial compensation and Ms Powell’s legal fees.

Produced by Kees Kasander, for Kasander Films, and executive produced by Paul Trijbits (Ruby Films) and Christine Langan and David M Thompson for BBC Films, Fish Tank was shot entirely on location in the UK. The film was financed by BBC Films, the UK Film Council, Limelight and Soho Images.

Lee & Thompson advised Kasander Films and ContentFilm International and also represents Ruby Films.

JLS took home two awards, for Best Breakthrough Act and Best Single, while the Spice Girls won Best Moment in Brits History with their 1997 performances of Wannabe and Who Do You Think You Are.

Lee & Thompson would like to congratulate both the boys and the girls on their continuing success.

The full text of the speech is reproduced below.

MIDEM UK LEGAL UPDATE SPEECH 2010

I am going to give you a quick overview of what’s happened in the legal arena in the UK in 2009 and then I am going to focus on the most important case of the year.

So anything new on the statute books?  Well, not yet, but the Digital Economy Bill is wending its painful way through Parliament, with the House of Lords currently discussing as many as 300 amendments.  The most contentious provisions are about how to deal with online copyright infringement by peer to peer file sharers.  No ‘three strikes’ policy for the UK but instead what’s proposed is for ISPs to have to send notifications to subscribers alleged to be infringing copyright and to record the number of notifications which each subscriber is sent.  This information is then to be passed back to rights holders on a no names basis who can then apply to Court to get the subscribers’ names and addresses so that they can take legal action.  If this does not reduce piracy by 70% then the Secretary of State will have the power to instruct the regulator OFCOM to introduce technical measures against infringers, with suspension of their internet connection a possible last resort.  Note suspension rather than permanent disconnection.  As the bill continues to be debated in parliament all sides are on tenterhooks as to whether it will actually make it into law before we have a general election this Spring.

At a European level, the question of the extension of the duration of sound recording copyright is being keenly watched from the UK as with the current 50 year term, for example, early Beatles recordings will shortly start to fall out of copyright, and it looks like the term will be increased to 70 years shortly.

Back to file sharing, and the UK saw its first criminal prosecution against the host of a BitTorrent file-sharing community.  This was about Oink, the invite-only file-sharing community set up in 2004 by the then 20 year old computer programmer Alan Ellis which was closed down in 2007 following an investigation by British and Dutch Police working with UK and global record label trade bodies the BPI and the IFPI.  Users of the service were invited to make donations ostensibly to cover server hosting expenses and with a view to purchasing a server, and by the time of its closure in 2007 these amounted to about £180,000 which apparently Ellis had not spent but had just left sitting in an account.  Four users had pleaded guilty to copyright infringement charges in 2008 but Ellis was prosecuted for the more serious charge of conspiracy to defraud which could carry a jail sentence.  However, much to the trade bodies’ annoyance, the jury found Ellis not guilty on the basis of his defence that he had set up the service as an exercise in computer programming, that he had not been aware that the service, as opposed to its users, could be guilty of copyright infringement, and that he had not intended to defraud anyone.  There appears to be a general consensus that a claim for authorising copyright infringement as opposed to conspiracy to defraud would have been successful and there is now talk of that being run against him as a civil claim.

As to other disputes, we had the spat between PRS and YouTube which briefly led to premium UK video content being taken off the site until a deal was done, the details of which remain confidential.

And how is the UK music industry bearing up in the global recession?  Well the live industry continues to thrive, with London’s O2 arena proving the world’s most popular music venue for the second year running, the music publishing industry is bearing up well and even the record industry is not suffering as much as had been feared with album sales only down 3.5% at 129 million and with the silver lining of the revival of the singles market to the point of overtaking album sales for the first time since the heyday of the single in 1967.

Which brings me nicely on to my case as 1967 was the year Procol Harum’s “A Whiter Shade of Pale” was released.  Yes that’s 43 years ago.  How can that possibly be relevant at a legal conference in 2010 I hear you ask. Well the fact that, according to the collection society PPL, it is the UK’s most performed recording ever might have something to do with it, and sure enough issues as to who owns the song were up before the highest Court in the land last July, the House of Lords, since re-branded the Supreme Court by the way – no idea where they got that name.  To recap, this was a claim against the lead singer and writer Gary Brooker and the publisher and record company Essex Music by the organist Matthew Fisher for a share of the copyright in the song by virtue of his writing the organ part.  The claim started in 2005 when the song was 38 years old and it is that delay which is the principal point of legal interest as your instinctive reaction is to say “surely he’s left it too late”.

The delay was raised in the defence in two ways:-

Firstly, that it was too late to have a fair trial, the witnesses won’t remember and some of them are dead, but the dispute wasn’t really about who wrote what but whether the organ part was sufficient to qualify for a copyright interest, so that didn’t work.

Secondly, it was said that the delay itself should deprive Fisher of a remedy and that was the key issue as it played out.

As I reported here 2 years ago, at first instance the Judge found that Fisher’s organ part merited a 40% share of the music, and so a 20% share of the song.  The UK limitation period for damages for copyright infringement is 6 years so Fisher was claiming damages for the previous 6 years’ exploitation of the song, but the Judge used his discretion to refuse Fisher any damages for the past because of his delay.  But for the future, the Judge made declarations giving Fisher 20% ownership of the song going forward and a 20% entitlement to future income. So at that point the delay was held to be enough to deny Fisher any damages for the past but not his claim to ownership for the future.  For that to have happened the Defendants would have had to show that the delay had caused them some detriment, which of course they couldn’t because they had been receiving more royalties than they should have done for the 38 years.

In the Court of Appeal, the Judges were more troubled by the delay and, while they recognised they could not overturn the lower court’s finding of fact that Fisher was a 20% author of the song, they decided they had a discretion to overturn the ownership declaration because of the delay and promptly did so.  This left a mess, with Fisher acknowledged as part-author but with no claim to any ownership or royalty entitlement.  Quite how PRS was supposed to deal with registration of the parties’ interests in the work at that stage is anyone’s guess.

Then came the House of Lords to put matters right, stressing that there is nothing so sacred in law as a right to ownership of property, be that real property or intellectual property, and such a right cannot be extinguished by delay alone in the absence of the delay causing some form of detriment to the Defendant. So the House of Lords restored Fisher’s 20% ownership for the future.  The press then proceeded to cause considerable confusion by reporting the decision as a finding that there is no limitation period on copyright claims in the UK.  The actual position, and this case did nothing to change it, is that there is a 6 year limitation period for claims to damages for copyright infringement and there is no limitation period for claims to ownership of copyright.  Detriment caused to a Defendant by a Claimant’s delay can prevent a claim to ownership of copyright succeeding, but what this case highlighted is that it will be hard for a Defendant to prove detriment when he has been receiving more royalties than he should have during the period of delay. So it may just be worth another look at those old copyright ownership claims you had assumed were past their sell by dates.

As in all good screenplays, there was however a final twist in the tale for Fisher. One of the arguments raised by the Defendants before the House of Lords was that a clause in the recording agreement which the band including Fisher had signed with Essex Music amounted to a licence for Essex and its licensees to exploit the song in the form of the band’s recording of it. Somewhat unhelpfully, but because the point hadn’t been fully argued before them, the House of Lords made no definitive finding on the point but said that the clause “may” amount to a licence. If it did, while Fisher would still get his 20% of royalties going forward on the 770 cover versions recorded of the song, he would not do so on Procol Harum’s own recording of the song, which, I repeat, has been the UK’s most performed recording ever. So it’s not over yet, and I look forward to bringing you the next instalment in a couple of years time.

© 2010 Gordon Williams

Best film: Fish Tank – Andrea Arnold’s second feature, winner of the Jury Prize at Cannes 2009 and awards for best director and best newcomer (Katie Jarvis) at the British Independent Film Awards 2009. Produced by Kees Kasander, for Kasander Films, and executive produced by Paul Trijbits (Ruby Films) and Christine Langan and David M Thompson for BBC Films, Fish Tank was shot entirely on location in the UK. The film was financed by BBC Films, the UK Film Council, Limelight and Soho Images. Lee & Thompson advised Kasander Films and ContentFilm International and also represents Ruby Films.

Best actor: Andy Serkis – Sex & Drugs & Rock & Roll – telling the story of Ian Dury who became one of the founders of the punk-rock scene in 1970’s Britain and directed by Mat Whitecross. Lee & Thompson advised the financier Lip Sync and the sales agent Odyssey Entertainment in respect of their involvement in the production.

Best actress: Anne-Marie Duff – Nowhere Boy – Lee & Thompson advised financiers North West Vision + Media and Lip Sync in respect of their investments in the production of Sam Taylor-Wood’s feature film debut, Nowhere Boy, based on the early years of John Lennon, starring Aaron Johnson and Kristin Scott Thomas.

Best screenplay: Jesse Armstrong/Simon Blackwell/Armando Iannucci/Tony Roche – In the Loop – Lee & Thompson advised the distributor Optimum Releasing.

John Terry’s lawyers, Schillings, applied to the Court under Article 8 of the European Convention on Human Rights, arguing that publication of the allegations would infringe the right to privacy of certain “interested persons”. The application did not identify Terry as the applicant or any party as respondent and no parties were informed of it in advance.

Mr Justice Tugendhat ruled that a super-injunction was neither necessary nor proportionate in the circumstances, having regard to the likely effect that would be caused to Terry’s private life if the allegations were to become public. His lawyers came in for particular criticism for their failure to inform the News of the World of the application, given that they knew that the paper was intending to run the story. The paper was therefore prevented from challenging the application, unfairly so in the opinion of the judge.

In rejecting his lawyers’ arguments Mr Justice Tugendhat concluded that the application had been made not to protect Terry’s wife and family, but in an attempt to prevent damage being caused to Terry’s lucrative sponsorship deals, for which an appropriate remedy lay in damages rather than prior restraint.

The matter has re-opened the debate on the use of super-injunctions leading to the Ministry of Justice confirming that it was investigating measures to limit their use. The tabloid press, unsurprisingly, has been quick to hail the judgment as a milestone in their fight against the UK judiciary’s comparatively strict application of European privacy legislation, however this decision in no way changes the law and injunctive relief remains available to protect privacy in appropriate circumstances.

This does not, therefore, sound a death knell for super-injunctions, though it may well lead to a different approach from those who seek to benefit from them.

To donate please follow this link to Andrew’s Just Giving page http://www.justgiving.co.uk/andrew-thompson2

Both charities carry out fantastic work in support of disadvantaged children (find out more at www.nordoff-robbins.org.uk and www.childline.org.uk).

All money raised will be divided equally between Nordoff Robbins and Childline and every penny raised will go direct to the charities. Andrew aims to raise a minimum of £10,000 and Lee & Thompson is proud to be his principal sponsor. Every donation, however small, will make a difference and will be greatly appreciated.