Archive for Ben Challis

Viagogo faces Australian investigation

Live events sector


 The Australian Competition & Consumer Commission has begun legal proceedings against the secondary ticketing website Viagogo, accusing the controversial ticket resale platform of making false or misleading representations, and of engaging in misleading or deceptive conduct, joining a number of actions that Viagogo is facing in different countries around the globe.


In the UK, Viagogo has faced growing complaints, not least because it re-sold tickets for the Teenage Cancer Trust charity concert, because not one representative of the now Swiss based company turned up for the investigation into ticketing by the Parliamentary Culture Select Committee despite Viagogo having a UK office, and has faced a furious backlash from consumers, most noticeably from the Victims Of Viagogo campaign on Facebook.


The ACCC is claiming in the filing with the Australian Federal Court that the secondary ticketing company breached Australian consumer rights law between 1st May and 26th June this year. Among the specific complaints made by the ACCC are that:  Viagogo failed to disclose upfront significant booking fees, estimating that these average 27.6% for most events; that it misled consumers about ticket availability by making statements like “less than 1% of tickets remaining”, without explaining that that only referred to Viagogo’s own supply of tickets; and that it used the word ‘official’ in Google adverts, implying it was an approved primary ticket seller (issues that have been raised in other jurisdictions).


ACCC Deputy Chair Delia Rickard said: “We allege that Viagogo failed to disclose significant and unavoidable fees upfront in the ticket price, including a 27.6 per cent booking fee for most events and a handling fee. [And] Viagogo’s statements such as ‘less than 1% of tickets remaining’ created a sense of urgency for people to buy them straight away, when tickets may have still been available through other ticket sources”.


She added that her organisation also alleges that “by using the word ‘official’, Viagogo represented in [its] ads that consumers could buy official original tickets, when in fact Viagogo is a platform for tickets that are being on-sold by others”. The ACCC had received 473 customer contacts about Viagogo this yearn and Rickard said: “The ACCC expects all ticket reselling websites to be clear and upfront about the fees they charge, the type of tickets they sell and the nature of their business”.


In Queensland, the state’s Attorney-General and Minister For Justice Yvette D’Ath specifically advised consumers to “think twice” before buying tickets off the Viagogo site, reporting that the Queensland Office Of Fair Trading had received 43 complaints about the tickets site in the last year. The minister added that to date Viagogo had refused to engage with both Queensland’s OFT and its own aggrieved customers.


the Minister For Better Regulation in New South Wales, Matt Kean, has also spoken out against Viagogo, reporting that NSW Fair Trading had now made over 194 attempts to contact the ticket resale company, and that those communications “had gone vastly unanswered”.

Ticket touts and secondary re-sellers face increased scrutiny across Europe

Live events sector


Spain and Italy are taking the lead on clamping down on ticket touting and some of the less savoury activities of some players in the secondary ticketing market, and now some of the biggest ticketing companies and concert promoters in Spain and Italy are facing prosecution.


In Milan, state prosecutor Adriano Scudieri has accused promoters Di and Gi, Live Nation and Vivo of misleading consumers the actual reality of a ‘sell out’ for some shows – panicking fans into hasty purchases at over inflated tickets prices for shows they were told were about to sell-out. Scudueri also claims that a number of companies signed “hidden agreements” with secondary ticketing site Viagogo to supply tickets to Viagogo from the primary market for sale at “unreasonably” high prices, netting €1.4 million in the process.


The State Prosecutor has announced that there will be two charges brought against the secondary ticketing companies.  The first will be for defrauding the State of 1.4 Million Euros, as a result of artificial price-rigging. The companies have further been accused of conspiring against the Italian music collection society, SIAE, and will be charged with defrauding the State of 150,000 Euros, which is related to unpaid royalty payments.  However the companies have not been found guilty of defrauding consumers.

In Spain, Madrid’s City Council has called on the region’s Department of Consumer Affairs to take action against Live Nation owned Ticketmaster, accusing it of “misleading advertising”. It alleges the firm fraudulently told customers that concert tickets were sold-out, then directed them to its resale site Seatwave, where the same tickets were on offer at inflated prices.


In April, the Italian Competition Authority (AGCM) levied fines totalling €1.7 million on five ticket agencies: TicketOne, owned by Germany’s CTS Eventim, was fined €1m for failing to take adequate measures to prevent tickets getting into the hands of touts. Four secondary ticketing sites,  Viagogo, MyWayTicket, Live Nation’s Seatwave and eBay/StubHub’s Ticketbis,  were hit with a collective €700,000 fine for failing to provide complete ticket information to customers “concerning several essential elements which potential buyers need to make their transactional decisions”.

A court of first instance has found against CTS Eventim Austria, ruling that the practice of charging delivery fees on tickets printed at home is illegal. The case, brought by the Consumer Information Association (VKI), related to tickets sold via CTS’s oeticket website, which charges €2.50 for ‘print @ home’ and mobile tickets and €1.90 for those picked up from branches of Libro or oeticket’s own box offices. The Handelsgericht (commercial court) of Vienna, such charges are “unusual and disadvantageous” for consumers and inadmissible under Austrian law. CTS faced a similar decision in Bremen, Germany, which was upheld on appeal.

A recent YouGov poll which received widespread coverage in the UK revealed that half of Britons feel that the Government should intervene to do something about secondary ticketing sites, whilst 48% of Britons want secondary ticketing sites banned outright.


The UK Culture Minister, Matt Hancock, has signed the Commencement Order for the Digital Economy Bill, which will include measures to combat ticket-touting. “We are criminalising misuse of bots by ticket touts to stop sale of tickets at inflated prices,” Hancock tweeted on 17th July. A recent investigation by Which? discovered “first-class confusion” over the state of the secondary ticketing market – as many as one in four tickets to popular music, theatre and sporting events are for sale on secondary ticketing websites, often at a huge mark-up over the original face-value price. 


Viagogo has been placed under investigation by the Irish Advertising Standards Authority for potentially overstepping advertising rules through its ticket promotions on Google. They’ve been accused by Fanfair of ‘confusing’ fans who may not grasp the difference between listings on Google because Viagogo use the word ‘official’ in adverts for the re-sale of tickets.  The site justifies the term by stating that the link goes through to the ’official’ Viagogo website.

Potential sale of Isle of Wight Festival opens up competition issues

Live events sector


The UK’s festivals trade association, the Association of Independent Festivals (AIF) has written to the Competition and Markets Authority (CMA) urging the CMA to widen its investigation into Live Nation’s acquisition of Isle of Wight Festival to include an inquiry into US promoter’s “position in the [UK] market overall”.

The 60 festival strong group made the recommendation after publishing research that showed that Live Nation either owns or holds a majority stake in nearly a quarter (23%) of all UK events with a capacity of over 5,000. In total, Live Nation controls 28 UK festivals, including eight of Britain’s largest outdoor events (Download, V Festival, Reading/Leeds, Parklife, Creamfields, Lovebox and Wilderness) and whilst this excludes Glastonbury, it is almost three times more than its nearest competitor, Global, which AIF says has a  8% marketshare. Rival AEG promotes the 65,000 capacity British Summer Time shows in London’s Hyde Park.

Live Nation has divisions operating in tour and festival promotion, venue management, primary and secondary ticketing, and artist management, and continues to be acquisitive, not least in the UK where it has bought into a number of touring, festival and venue companies in recent years.

AIF’s general manager, Paul Reed, said: “For the sake of its future health and diversity, it is vital that the UK’s live music sector remains open and competitive. We continually need new artists to break through and entrepreneurs to launch fresh and exciting events” adding  “The live music sector is fiercely competitive, but data we have published today rings several alarm bells – highlighting that a single transnational corporation is fast headed towards widespread dominance. For independent festival operators, a Live Nation monopoly would quite simply be a stranglehold with profound and serious consequences.”

AIF has significant concern over “Live Nation’s “deep-rooted influence across the live music sector, from venue and festival ownership” (LNE also owns the network of small and mid-sized venues through Academy Music Group and the former MAMA & Company venues and of course is dominant in ticketing “through to control of ticketing with Ticketmaster, ownership of two of the ‘big four’ secondary ticketing sites and security and management businesses”.

Reed highlights exclusivity deals with artistes as a major issue: “The complaint we hear privately from a growing number of AIF members is about the collateral damage caused by the imposition of hugely restrictive exclusivity deals …. by their nature, these deals are anti-competitive, restraining when and where even the smallest artist can perform and significantly diminishing the pool of talent that non-Live Nation promoters can draw upon. On this basis, we have urged the CMA to extend their investigations beyond acquisition of the Isle of Wight Festival and into Live Nation’s position in the market overall.”

In turn, Live Nation has filed a complaint with the Competitions & Markets Authority against its rival AEG Live. The complaint relates to a dispute between AEG Live and Azoff MSG Entertainment that has seemingly forced global touring acts to choose sides, and may have prevented certain acts from appearing at London’s O2 Arena. The underlying battle  is US based, and seemingly began when Azoff MSG reportedly refused to book acts into its prestigious Madison Square Garden venue in New York unless they also played the company’s Los Angeles venue, The Forum, in preference (or to the exclusion of) AEG’s Staples Centre.


In response, AEG stated that its “hand has been forced” and it planned to “level the playing field” and that acts that chose Azoff’s Forum over the Stales Centre would apparently not be booked into its London venue, The O2. 

“The UK Competition & Markets Authority has advised us that they have received a complaint from Live Nation,” said a spokesman for AEG Live. “We will meet the Authority to discuss the matter and we believe our responses will satisfy them.”

Azoff has now told Billboard that there is “no mandated booking link between his group’s venues, the Forum and Garden”.

Sweet home truths for Artimus Pyle



You might have thought that having an ex-member of a legendary band involved in a film bio-pic would be an asset, but a new Lynryd Skynryd biopic has been blocked because of ex-drummer’s Artimus Pyle’s involvement. 

Initially producers Cleopatra Records said that the biopic, Street Survivor: The True Story Of The Lynyrd Skynyrd Plane Crash‘ was not an authorised project, and that it should be free to make the film – arguing that under its First Amendment free speech rights, it was allowed to make a film about the band and the 1977 plane crash in which two band members died. Initially US District Court Judge Robert Sweet agreed that Cleopatra was free to make the film in its own right, but then found that the involvement of Pyle in the movie venture violated the agreement (a’consent order’) he had reached with his former bandmates back in 1988. In that agreement, Pyle was given permission to tell his own life story, but he couldn’t use the band’s name or exploit the rights of the two band members killed in the 1977 crash, Ronnie Van Zant and Steve Gaines.

Granting an injunction, Judge Sweet said: “Cleopatra is prohibited from making its movie about Lynyrd Skynyrd when its partner substantively contributes to the project in a way that, in the past, he willingly bargained away the very right to do just that; [but] in any other circumstance, Cleopatra would be as ‘free as a bird’ to make and distribute its work”.

The legal action against the biopic has been brought by the estates of Van Zant and Gaines, as well as current Lynyrd Skynyrd members, Gary Rossington and Van Zant’s brother, Johnny. Cleopatra have said they will appeal the decision.

Live on stage: Avenged Sevenfold face jury trial in battle with Warners

Recorded music, artistes


Metal band Avenged Sevenfold’s troubles with Warner Bros continue, stemming from a legal action brought by the major label in January 2016. The action began when the label sued the band over the band’s failure to deliver a new album. In response, Avenged Sevenfold cited the “seven-year rule” set out in the California Labor Code which allows parties to leave personal service contracts under certain circumstances after seven years have passed. 

The Hollywood Reporter reports that intense record industry lobbying had meant the the Code was amended in the 1980s to allow record companies to claim lost profits on uncompleted albums. Record companies, though, only have 45 days to do so when an artist exercises the right to terminate.

At the heart of the didpute is Avenged Sevenfold’s album The Stage which was released via Capitol Records, and at the same time Warner Bros. put out a Avenged Sevenfold ‘Greatest Hits’. Most commentators then presumed the legal dispute had been settled – but not so – and now the “seven-year rule” will be tested before a jury. The Hollywood Reporter estimate that if Avenged Sevenfold (ultimately) lose the court battle, it could cost them between $5 million and $10 million. A victory for the band would substantially strengthen the position of artistes tied to long term exclusive recording agreement. Avenged Sevenfold vocalist Matt Sanders (M. Shadow) has now said “We’ve realized this battle is bigger than just us” and “We’re fighting so that all musical artists have the same rights everyone else has. It’s not like we wanted to be here, but we are down for the fight.”

The lawsuit is expected to go to court this December.

Music not politically correct? Spotify will protect you

Recorded music, streaming


Bands like Rage Against the Machine, Dead Kennedys and Public Enemy exemplify the fact that music is political and vice versa. 

But how political is too political? In 2014 The Sothern Poverty Law Centre published a list of ‘white power’ artists, in which 37 artists including ‘Skull Head’ and ‘Tattooed Mother Fuckers’ were featured. The list was originally intended to target the iTunes store, and at the time Apple did remove many of the artists from download sales.

The list has recently resurfaced, in the aftermath of the race related protests in Charlottesville, Virginia. Spotify has now taken action to remove artists that are identified as white supremacist hate bands. 

Spotify has over 140 million users, but the question should be asked: do these users need to be told what they can and cannot listen to? Well, a spokesperson for the service, which claims to be a champion of free speech, stated that “Illegal content or material that favors hatred or incites violence against race, religion, sexuality, or the like is not tolerated by us.” 

Spotify’s competitor Deezer has also joined in, and has also taken moves to decide what users can and cannot listen to. A spokes person for the streaming platform stated “We are in the process of swiftly and actively reviewing the content on our platform and have begun and will continue to remove any material that is in any way connected to any white supremacist movement or belief system.”

Not long ago Spotify introduced the ‘I’m With the Banned’ project, the project aims to support and promote artists from counties that are affected from the US’s travel ban. Spotify has gone on to compound the ban of ‘white power’ artists with the introduction of the ‘Patriotic Passion’ playlist. The playlist has been described as “a sound track to and America worth fighting for”: But what exactly that? Is that political? Or is that too political? Well with the likes of N.W.A and 2 Live Crew featured alongside Lady Gaga and Funkadelic with ‘One Nation Under A Groove’, it is very hard to tell. 

Whilst Spotify has set out its criteria for offensive music that will be removed, it is hard to see how it will be fairly implemented. Will ‘One In A Million’ by Guns N’ Roses be removed for talking about “Radicals and racists”; will the Sex Pistols be removed for inciting ‘anarchy in the UK’? 

Let’s not forget the Pistols first main ‘Anarchy’ tour was mostly banned when punk was in its infancy and their ‘God Save The Queen’ single was banned from BBC and local radio and controversially never made it to number one in the charts. All but three dates on the band’s tour were cancelled. The first show, which was due to be held at the University of East Anglia, was banned by vice-chancellor Dr Frank Thistlethwaite “on the grounds of protecting the safety and security of persons and property”. After the Pistlos TV appearance with Bill Grundy when they swore, subsequent national newspaper headlines and the ensuing ‘moral panic’ led venues (usually under pressure from enraged local councillors) to cancel dates; the surviving Caerphilly gig was picketed by carol-singing Christian protesters. One local councillor Ray Davies who was a vocal opponent of the concert in 1976 now has a very different view saying “I’ve got some great regrets when I look back at it because [of] who am I, a fuddy-duddy councillor, to tell young people what they should listen to, what they should enjoy and how they should conduct themselves and their lives?”

Bernard Brook-Partridge, a Conservative member of the Greater London Council and chairman of the Arts committee from 1977, declared, “Most of these groups would be vastly improved by sudden death. The worst of the punk rock groups I suppose currently are the Sex Pistols. They are unbelievably nauseating. They are the antithesis of humankind. I would like to see somebody dig a very, very large, exceedingly deep hole and drop the whole bloody lot down it.”

In the UK in the 1970s, Mary Whitehouse initiated a successful private prosecution against Gay News on the grounds of blasphemous libel, the first such case for more than 50 years. Another private prosecution against the director of the play The Romans in Britain, which had been performed at the National Theatre and included a scene of male rape, was withdrawn, but Whitehouse continued to campaign to reform the BBC and what see saw wass the organisations “propaganda of disbelief, doubt and dirt … promiscuity, infidelity and drinking”.

But back to Spotify and the current removal of tracks: How far will this go? And who decides?  What about older historical records? There is a playlist for Nazi marching band songs – how would that be treated? It’s not a ‘hate band’ is it? Should the tracks be removed or ‘banned’ because of their association with the far right –  or should they be treated as being part of a historical collection with a relevance in describing the Nazi regime? 

Music distributor CD Baby has encouraged members of its community to get in touch if they find there is music on its platform that constitutes hate speech.

One thing is for certain, for now Spotify will be in charge of determining where the line should be drawn, but in the longer term it may become increasingly difficult to determine exactly where that line will be. 

By Sam O’Toole

Filmchella faces Coachella complaint

Live events sector


Goldenvoice, the organizers of the Coachella Valley Music and Arts Festival, one of the world’s leading music festivals, have filed a trademark infringement lawsuit over the planned “Flmchella” film festival, arguing that the new event has refused repeated requests to change its name. 
The complaint, filed by Coachella Music Festival LLC in the US District Court for Central California, says that Filmchella founder Robert Trevor Simms and twenty other defendants are using the similar-sounding name to their name and trade mark for their multiday outdoor film festival. To add to this, the complaint says that both events feature numerous forms of entertainment and camping, are held in Southern California and that Simms has pitched his planned festival as “Coachella for movies”. The film festival is scheduled to run from the 29th September to the 1st October in Joshua Tree, California.

Coachella Music Festival LLC owns several trademarks and servicemarks associated with the festival, including the Coachella servicemark and “Chella” for use on shirts and T-shirts; However the trademark for use of “Chella” in “musical” and “cultural and arts events”, “campground facilities”, “hotel accommodation services”, drinks, transportation and other clothing has not as yet been registered.

The suit says “Trading on the goodwill of plaintiffs’ famous ‘Coachella’ festival, defendants are attempting to operate a directly competitive festival which they have named ‘Filmchella'” ….. “Despite repeated requests from plaintiffs asking them to change the name … to one which avoids confusion, conflict and false association … defendants have failed to do so.”


The new law suit extends to servicemark infringement, false designation of origin, brand dilution, cybersquatting and unfair competition over “attempts to operate a directly competitive festival” close to the Coachella festival site and Filmchella is “trading on the goodwill of [the] plaintiffs’ famous Coachella festival” by describing its event as the “Coachella for movies” and “the rock’n’roll festival for filmmakers and fans” and registering the web address (which redirects to


Last year, Coachella took legal action against the organisers of a rival festival called “Hoodchella,” which was set to be held nearby and during same month. Coachella won a settlement in March forcing the new event to change its name to “Noise in the Hood.” In May, Coachella took action against fashion retailer Urnan Outfitters, claiming it was selling clothes marketed under the Coachella name aimed at the event’s concertgoers. The case is pending.


Coachella has said that it has “no objection to defendants’ holding a festival of their own, regardless of whether it features movies, films, music or otherwise” and that “Plaintiffs appreciate the enthusiasm shown by defendants but they simply want defendants to use a distinctive name of their own that does not infringe or trade on the goodwill of plaintiffs’ famous ‘Coachella’ marks”. It appears Filmchella has changed “some of their marketing materials” to read Filmchilla with a ‘I’ but that clearly hasn’t gone far enough and the plaintiffs say that they “simply want[s] defendants to use a distinctive name of their own”.

The promoter is seeking monetary damages, along with a restraining order that prevents the defendants from,  using or registering any name similar to Coachella or engaging in “unfair competition” with the Coachella festival.

Grande face new US claim in wake of Cox ruling

Internet, recorded music


US internet service provider Grande Communications is fighting back against the action iy faces which was commenced by the Recording Industry Association of America (RIAA).


Earlier this year, the RIAA sued the Texas internet service provider claiming that “Despite their knowledge of repeat infringements, defendants have permitted repeat infringers to use the Grande service to continue to infringe plaintiffs’ copyrights without consequence”.


The move comes in the wake of the recent ruling in the dispute between music rights firm BMG and internet service provider Cox Communications, in which the court found that internet service provider Cox was liable for the copyright infringement of its customers.  The judge held this because Cox Communications operated a (deliberately) poor system for dealing with copyright infringing customers, Cox could not rely on the safe harbour defence in US law.


Now the RIAA is looking to have Grande Communications held liable for the copyright infringement of its customers. The RIAA plans to do this on the basis that Grande Communications isn’t doing enough to deal with said infringers, and therefore will not be able to rely on the safe harbour defence. In 2014 Cox was accused of repeatedly refusing “to terminate the accounts of repeat infringers“and that ”The reason that Cox does not terminate these subscribers and account holders is obvious – it would cause Cox to lose revenue.”  


Cox Communications were ordered to pay a $25 million dollar penalty for copyright infringements by a federal judge, following the earlier jury decision which found Cox liable for illegal movie and music downloads by its customers. why? Well the company’s behaviour amounted to wilful infringement of copyright in the eyes of the jury. The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay up and at the time commentators said that the ruling was likely to have widespread repercussions for online copyright infringement in the US and where a internet service provider might fail to qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. The RIAA say that Grabde was “refusing to take meaningful action” against users who repeatedly download music illegally.


Unsurprisingly, Grande Communications doesn’t like the sound of this latest claim. It is arguing that whilst the labels have sent the internet service provider a number of takedown notices (well the anti-piracy agency Rightscorp has) for alleged copyright infringement, the take down notices themselves users of its network have been partaking in copyright infringement.


It has been reported that lawyers for Grande Communications said “Importantly, plaintiffs do not allege that Rightscorp has ever recorded an instance of a Grande subscriber actually distributing even one of plaintiffs’ copyrighted works. Plaintiffs certainly have not alleged any concrete facts regarding such an act. Plaintiffs cannot allege direct infringement without alleging concrete facts which show that a Grande subscriber actually infringed one of plaintiffs’ copyrights”.


Grande Communications is also not happy with the fact the RIAA has referred to all of the takedown notices that Rightscorp has issued to the ISP, rather than the specific takedown notices from the specific recordings from labels that the RIAA represents. Grande Communications has stated that “It is incredibly misleading for plaintiffs to repeatedly refer to Grande having received ‘millions’ of notices of alleged infringement” says the ISP, “as if those notices all pertained to plaintiffs’ asserted copyrights”.  However, the RIAA is maintaining that the evidence it provided is enough to exemplify the fact that Grande Communications has not been in line with its safe harbour obligations, and it should therefore be liable for its customers’ copyright infringement.


Grande Communications is arguing that if the RIAA is successful it may set a dangerous precedent, putting a huge burden on internet service providers.


By Samuel O’Toole

Quincy Jones wins $9.4 million in Jackson claim

Recorded music


Quincy Jones has won a jury decision in the case he brought in the Los Angeles Superio Court against the Michael Jackson Estate, winning $9.4 million in what he alleged were underpaid or unpaid royalties.

Jones had accused Sony Music and MJJ Productions (one of Michael Jackson’s companies, now controlled by the Jackson Estate) or depriving him of some $30 million in royalties, almost all from the period following Jackson’s death in 2009 and the utilisation of recordings which Jones had produced for Off the Wall, Thriller and Bad in projects such as the This Is It film and two Cirque du Soleil shows. At the trial Jones admitted he had not focussed on the contracts he signed in 1978 and 1985, but said the recordings had been re-edited and re-mixed to deprive him of an equitable share of income and that he had a contractual right to be offered and undertake at any re-edit or remix.

MJJ had countered that Jones was incorrectly interpreting contracts he signed with Jackson on which the royalty claims were based and the Estate argued that the unpaid sums came to less than $400,000. 

After the decision Jones commented: “As an artist, maintaining the vision and integrity of one’s creation is of paramount importance. I, along with the team I assembled with Michael, took great care and purpose in creating these albums, and it has always given me a great sense of pride and comfort that three decades after they were originally recorded, these songs are still being played in every corner of the world”. The statement went on to say : “This lawsuit was never about Michael, it was about protecting the integrity of the work we all did in the recording studio and the legacy of what we created. Although this judgement is not the full amount that I was seeking, I am very grateful that the jury decided in our favour in this matter. I view it not only as a victory for myself personally, but for artists’ rights overall”.

The legal team for the Jackson Estate said they were both disappointed and surprised by the ruling saying: “While the jury denied Quincy Jones $21 million – or more than two-thirds of what he demanded – from the estate of Michael Jackson, we still believe that giving him millions of dollars that he has no right to receive under his contracts is wrong” and that the decision effectively re-wrote the contracts at the heart of the dispute. 

Howard Weitzman for the Estate said they planned to appeal the decision.

Arcade under Fire

Live events sector


The Canadian indie rock group, Arcade Fire, has come under fire for requesting attendees to its Everything Now release show at Brooklyn’s Grand Prospect Hall to wear ‘hip and trendy’ clothes. Apple has plans to live-stream the event on Apple Music and it has been reported that they were the ones to send the notice to ticket holders.


The notice that was emailed to the ticket holders for the intimate gig asked that they refrain from wearing “shorts, large logos, flip flops, tank tops, crop tops, baseball hats, solid white or red clothing,” the notice went on to say “We reserve the right to deny entry to anyone dressed inappropriately.”


The notice did not stop there, ticket holders were asked to make the show a “phone-free experience”. The notice explained that “all phones and smart watches will be secured in Yondr pouches that will be unlocked at the end of the show”.


Now this is Music Law Updates, so naturally the question arises as to the legal standing of the notice. Disclaimer: for the purposes of this article I will pretend that the Arcade Fire gig is to be held in England, and therefore English law is applicable.


As to the notice that was emailed to the ticket holders regarding the ‘dress code’. The key question to ask is when said notice was communicated to the attendees of the gig.  If we go back to 1949 and the case of Olley v Marlborough Court, in this case Mrs Olley booked into a hotel, she made the contract at the reception desk where there was no mention of an exclusion clause. On the back of the door in the hotel room, there was a notice that sought to exclude the liability on behalf of the hotel owners for any lost or stolen goods. Guess what happened, Mrs Olley has her fur coat stolen. It was held that the notice that sought to exclude liability was ineffective, this was because the contract had already been made by the time Mrs Olley has seen the notice and therefore, the notice could not form part of the contract.


If we apply the above to the Arcade Fire gig, if the notice regarding the dress code was communicated before or at the time the contract for the tickets to the gig was made, the notice would likely be found to be effective. However, as it has been reported it appears the notice was communicated to attendees after they became ‘ticket holders’ thus, the notice would likely be found to be ineffective because it was made after the contract was formed.


As to fans being asked to make Arcade Fire’s gig a ‘phone-free environment’, this will likely come down to copyright and the performers’ right found within the Copyright Designs and Patents Act 1988. In short a musical performance is, unsurprisingly I might add, defined a as a performance for the purposes of the Act and it confers certain rights upon the performer.  The rights amongst others include the right not to: be recorded live (except for private use), be broadcast live, and be recorded off a live broadcast.


If we bring this back to Arcade Fire’s attendees being asked to make the gig a ‘phone free environment’, whilst taking into consideration the fact that Apple are live streaming the event (likely for a big payment to Arcade Fire); it appears that perhaps Apple are worried that individuals might be tempted to breach the performers’ right and live broadcast the gig using their phones.  Although very unlikely that a band would ever take a fan to court for breach of their performers’ right, hypothetically speaking it is a possibility.


But back to the Arcade Fire gig, in a recent tweet the band announced ‘Wear whatever you want to any show’ but nothing has been mentioned about the ‘phone free environment’.  Long story very short, I doubt any attendees to the Arcade Fire gig will find themselves in hot water for not following the dress code, but attendees to any gig should be aware about the performers’ right especially with Facebook’s live feature.


By Samuel O’Toole


Olley v Marlborough Court Hotel [1949] 1 KB 532

CMU Daily tries to make sense of the band’s somewhat bizarre marketing plans here  Win Butler replied to a tweet by Brooklyn Vegan directing readers to its report on the dress code by saying, “Hi. Not sure who drafted this email, but it 100% did not come from the band in any form. Not that it matters! Enjoy the clicks”.