Royal Albert Hall 1969 : CD, DVD, procès...

Un sujet qui remonte à l'avant-dernier forum...

Il reste l'un des sujets les plus débattus de l'ancien forum !

Les deux articles qui suivent sont particulièrement intéressants : ils révèlent les véritables raisons du report de la sortie officielle du RAH !

Sunday Times faces £150,000-plus payout over Jimi Hendrix CD

US companies linked with musician's estate win ruling that paper did not obtain proper copyright clearance for giveaway disc



Times Newspapers is understood to be facing damages of about $250,000 (£156,000) after losing a high court copyright infringement case over a Jimi Hendrix CD given away with the Sunday Times.

The Sunday Times covermount CD, given away in September 2006, featured 10 tracks from a live performance by the late rock guitarist's group The Jimi Hendrix Experience at London's Royal Albert Hall in February 1969, including Purple Haze, Sunshine of Your Love and Foxy Lady. US-born singer and guitarist Hendrix died aged 27 in London in 1970.

Two US companies associated with the Hendrix estate, Experience Hendrix and Last Experience, launched legal action three years ago claiming the newspaper, published by News International subsidiary Times Newspapers, did not obtain the proper copyright clearance for the giveaway.

Footage of Hendrix's 1969 London concert recording was due to be released as a film by the claimants, along with accompanying DVDs, CDs and merchandising, and two companies claimed that this had been delayed in part by the Sunday Times's free CD and the negative impact it would have on UK earnings.

In May 2008 the claimants chose to pursue a claim for damages relating to loss of earnings from the delay to the concert film project.

High court judge Sir William Blackburne last Friday ruled that the Sunday Times covermount had delayed by a year the receipt of $5.8m in earnings to Experience Hendrix and Last Experience from the Hendrix concert film. He ordered Times Newspapers to pay damages equivalent to one year's interest on that sum.

The exact damages figure is still being worked out by the two sides' legal teams, but MediaGuardian.co.uk understands it will be just over $250,000.

News International and law firm Eversheds, which represented the claimants, declined to comment.

Experience Hendrix, a company owned by Hendrix's family, had claimed $8.9m in lost earnings, while Last Experience claimed Times Newspapers owed the company $17.4m.

Times Newspapers disputed the sums claimed for by both companies, saying compensation should not be awarded for loss of earnings outside the UK.

Blackburne estimated Times Newspapers to have paid between £50,000 and £100,000 for the covermount CD, conceding there was no industry standard to judge it against.

The CD giveaway, on 10 September 2006, coincided with the Sunday Times's cover price increase from £1.80 to £2. More than 1.3m copies of the CD were given away.

Eversheds said the Sunday Times ignored requests to stop the distribution of the CD before the covermount was given away in 2006.

The high court was told by lawyers for Times Newspapers that the company's promotions team said that, when contacted days before the planned CD giveaway, it was too late to withdraw the covermount from the newspaper.

Victoria Silberbauer, a senior lawyer at Times Newspapers, told the high court: "I was told by I believe Nathan McPherson [former employee at The Sunday Times dealing with promotion and brand management] that there was no way in the world that it would be possible at this late stage just to remove the CDs from the polybags and continue to distribute the Sunday Times as normal.

"Our only alternative to distributing the newspapers with the CD would have been to withdraw distribution of the polybag. This would have disappointed over a million of our regular readers in the United Kingdom.

"We would also have had to cancel planned TV and radio advertising as by this point it would have been far too late to change them. The TV and radio advertisements that had been created for that week only mentioned the Hendrix CD as an incidental to the main advertisement but if the advertisements had been cancelled, this would have affected marketing for The Sunday Times generally."

When the original legal action was launched in 2007, a spokeswoman for Times Newspapers said: "we licensed [the CD] in good faith from our regular supplier."

Source: http://www.guardian.co.uk/media/2010/aug/06/sunday-times-jimi-hendrix-cd

Sunday Times avoids punitive damages over unauthorised Hendrix CD

Pays interest on $5.8m

When an edition of the Sunday Times newspaper included a free CD of a Jimi Hendrix concert without the permission of Hendrix's estate it deprived the estate and two film-makers of potential profits for a year, the High Court has found.

The paper believed it had permission from the concert's rights holder to distribute the CD but the musician's estate said that it had not. The paper will not have to pay additional damages, though, because it had genuinely attempted to licence the music, the Court said.

Two filmmakers had filmed the concert and, in partnership with Hendrix's estate, were planning to release it to cinemas then on CD and DVD. When the newspaper distributed the CD they put their plans on hold, the court heard. It ruled that they were entitled to interest on the sums they could have earned had the film been released.

Hendrix shot to fame in the late 1960s, playing with English musicians Noel Redding and Mitch Mitchell in The Jimi Hendrix Experience. Though he played with other musicians after that group disbanded, the Experience played their last ever UK concert in 1969 at the Royal Albert Hall.

That concert was filmed by Gerald Goldstein and Steve Gold with Hendrix's permission, but when the singer and guitarist died in 1970 the project was put on hold.

In 2003 the two men agreed with Experience Hendrix, the company controlled by Hendrix's family that manages his estate, that they would edit and release the film and its soundtrack.

The film was nearing completion in 2006 and its 'final mix' was scheduled for October of that year. But in September the Sunday Times published the edition carrying 10 tracks from that concert on its 'covermount' CD.

The filmmakers and Experience Hendrix wrote to the Sunday Times just days before publication but the newspaper said that it had licensed the recordings from a company called Charly. An earlier ruling found that the Charly licence was not valid.

The process of putting the CDs in the polythene bags containing some of the Sunday Times supplements was too advanced to reverse by the time the Sunday Times had discovered that its licence may not be valid, the Court heard, and the CD was distributed with the newspaper.

The film project was put on hold and has still not resulted in a release.

Experience Hendrix, Gold and Goldstein sued the Sunday Times, claiming that the distribution of the CD made it commercially impossible for them to release the film. They asked the court to award damages.

The High Court agreed, though it awarded far less in damages than had been claimed. To calculate the damages, Sir William Blackburne tried to work out how much the film would have made the filmmakers and Hendrix's estate.

"I have come to the clear conclusion that it is quite impossible to forecast, so as to provide a reliable basis for computing losses, what the box-office takings are likely to be for a film, whether in the US or beyond, which has yet to be released, which, at the time of the trial, had not even been completed and which none of the independent experts giving evidence before me had seen in any shape or form," he said. "Projections of unit sales of DVDs and CDs (and box sets of each) calculated for the first five years following release seem to me to be just as much a matter of guesswork."

The judge looked at offers of advances from media companies Sony and Universal in distribution offers they made, and used these as the basis of a calculation of likely earnings. He found that the film was likely to earn its makers $5.8m in the first year of its release.

A similar sum to that was still available to be earned by the filmmakers and Experience Hendrix if they released the film, though, so all that happened was that the earning of that money was delayed by a year.

"With the possible exception of the market for recorded music (essentially CDs and CD box sets), there is no reason to think that the box-office and other takings from the Project would be any different merely because it had been delayed by 12 months," the judge said.

The Court awarded them the US rate of interest plus one per cent, when calculated on the sum of $5.8m.

The judge said that this money would be "very substantially less than the millions that they were claiming. But their claims, even the relatively more modest one of [Hendrix's estate], seemed to me, standing back, to be altogether out of proportion to the true scale and effect on the Project of the covermount's appearance".

Sir William Blackburne said that the Sunday Times should not have to pay punitive damages because it had made a genuine attempt to license the recordings for its use.

"It is not correct to say that the defendant was indifferent, let alone recklessly indifferent, to whether it would engage in infringing activities," he said. "The defendant used the services of TCP, a leading, well established and reputable agency with whom it had an established relationship, to supply and obtain all necessary licences for promotional material such a covermount CDs."

"[The Sunday Times] cannot, in my judgment, be criticised for failing to investigate the provenance of the covermount material," said the judge. "Damages, if otherwise appropriate, should not be increased by an award of additional damages, whether by reference to flagrancy or 'moral prejudice' or any other such considerations."

Source: http://www.theregister.co.uk/2010/08/10/sunday_times_hendrix_ruling/

Comme les Stones ont souvent une longueur d'avance sur Jimi, on peut donc logiquement imaginer que Janie va avoir un oeil sur eux à la rentrée au sujet de l'Albert Hall. Pourquoi ? Les fans des Stones sont surexcités et très impatients car ENFIN est annoncée pour octobre la sortie officielle (pour la première fois) en DVD et Blu-ray du film "Ladies & Gentlemen...The Rolling Stones !". Ce documentaire mythique (4 concerts filmés de la tournée "Exile" en 1972) a été projeté dans plusieurs salles américaines au cinéma en 1974 et puis plus rien depuis (si ce n'est une très éphémère sortie VHS en...Australie). Tous les mégas fans connaissent ce document. Un peu comme nous avec l'Albert Hall. Mais là enfin, il est annoncé en sortie officielle (avec des projections cinéma uniques dans plusieurs pays à partir de septembre donc intelligemment juste avant la sortie DVD. Le son est totalement restauré, tout a été retravaillé, bref, un matériel tout neuf avec bonus (interview de Jagger en 72 et 2010 et répétions de Montreux). Ce film est le plus recherché par les fans et est considéré carrément comme le meilleur document live du groupe !!!

Donc vous aurez compris le grand parallèle avec "notre" Royal Albert Hall...

YM

Tout à fait Yazid, on peut facilement comparer ces deux graals des collectionneurs. J'attend aussi un bon CD live tiré de ce film (supérieur au déjà magnifiques boots de cette tournée définitif des Stones).

Pour ceux qui doutent que ça ne puisse pas être énorme, voici un petit rappel de l'ancien forum :



Source : Guitar World (paru en mars 2010)

Commentaire d'un collaborateur d'Experience Hendrix sur Cross Town : "Those who saw sample clips of the project informed me that the project is fantastic. Cleaned up footage and sound that will "blow away" all those who come anywhere near. The 18th has the single spotlight right on Jimi as you probably know. Lights on on the 24th. Not all of the tour footage was completely usable = no fun watching incomplete angles that may be may be too dark, out of focus or just plain wack. But why the delay? Maybe the scheduling conflicts? Maybe the UK mag situation? Goldstein and the endless legal technicalities that trailed along with him for years and years? Well, that's no secret. He didn't make it easy for EH, that's for sure. But don't worry...it is coming! All explanations why it took so long will eventually surface soon after however it won't even matter by then."

C'est de la torture cette attente.

Il y a des passages qui ne sont pas exploitables ? Pour le le concert du 18 ?

Je n'en sais pas plus que toi. Cela dit, McDermott est plutôt rassurant non ?

Oui mais tellement peur d'être déçu...

Ayler a écrit:

Cela dit, McDermott est plutôt rassurant non ?

Il dit quoi ?

Trouvé sur le site officiel, des questions-réponses (des responsables) :

Question :

-Is there any chance that the famous " Experience Live at the Royal Albert Hall 1969" movie will be released on DVD??
It was that concert that got me in to Jimi's music. My first lP from Jimi was that concert. A room full of mirrors hit me, it hit me hard……..

-We are working on the Royal Albert Hall project and hope to release a theatrical film, DVD and CD soundtrack from this incredible performance in the near future... ”

nicholas a écrit:

-We are working on the Royal Albert Hall project and hope to release a theatrical film, DVD and CD soundtrack from this incredible performance in the near future... ”

Nous sommes bien avancés !!

Ce concert finira par être publié nous le savons tous. Faut juste que Janie trouve le meilleur timing possible car cette cartouche est la meilleure qui lui reste.

YM

Je pensais exactement la même chose.... !

Ce 40ème anniversaire était pourtant un bon timing. RDV donc au 50ème ?

à moins qu'elle arrive à nous sortir une version plus complète de berkeley 1° et 2° concert

Tontonjimi a écrit:

à moins qu'elle arrive à nous sortir une version plus complète de berkeley 1° et 2° concert

Ca aussi ça serait énorme et avec les dernières trouvailles on peut espérer !

Le résumé de la décision de justice qu'Experience Hendrix attendait avant de sortir le DVD du RAH :

Background

In the European Union, questions of copyright protection and infringement are still decided on a country-by-country basis by reference to applicable national legislation, although copyright law is broadly consistent between countries as a result of (mainly non-EU specific) international conventions. However, since April 29 2006 the principles governing the enforcement of IP rights, including the bases on which damages awards should be calculated, have been harmonised by the EU IP Enforcement Directive (2004/48/EC).

Article 13 of the directive states that in awarding damages, judicial authorities in EU member states must:

"(a) take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, other factors."

Alternatively, member states:

"(b) ...may, in appropriate cases, set the damages as a lump sum on the basis of the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question."

In one of the first examples of a reported damages assessment under the directive, the High Court has applied the principles set out in the directive to assess the damages payable following an infringement of copyright in respect of a Jimi Hendrix concert.(1)

Facts

The legendary Jimi Hendrix Experience rock band gave a concert at the Royal Albert Hall in London on February 24 1969. The performance and sound-recording copyrights were owned by the claimants, which were Experience Hendrix LLC - a company owned and controlled by musician Jimi Hendrix's family - and a third-party company that had produced the sound recording.

On September 10 2006 the defendant, Times Newspapers Limited, cushioned a 20p rise in the cover price of The Sunday Times by enclosing a CD containing songs from the concert - this type of CD is known in the publishing industry as a 'covermount'. Times Newspapers had taken a licence from a third party that had falsely claimed to own the sound-recording rights.

At a February 2008 hearing the court awarded summary judgment to the claimants and ordered Times Newspapers to pay damages. On July 30 2010 the court considered the size of the damages award.

The claimants told the court that they had been planning to use the recordings of the concert in a feature film to be released internationally in March 2007, but Times Newspapers' infringement had caused them to delay the project and the film's release.

The claimants argued that damages amounting to $30 million should be assessed on the basis of Article 13(a) of the directive, based on the worldwide losses that they had suffered through release of the covermount. Moreover, flagrancy damages should be awarded because Times Newspapers had been reckless in proceeding with the covermount's circulation, despite a warning letter from the claimants.

Times Newspapers argued that damages should be assessed on the basis of Article 13(b) and should be based on the amount that the claimants could legitimately have charged in September 2006 for a notional licence to make and issue the covermount, which it said would not have exceeded £100,000.

Decision

The judge accepted that the film's release had been delayed (and 'caused', in a legal sense) by the distribution of the covermount, and that it was appropriate to base the damages award on loss suffered by the claimants, rather than a notional licence fee. The judge stated that the latter approach:

"would require the court to assess what would have been a reasonable licence fee to permit the defendant to make and distribute a vast number of CDs containing very poor quality, illicitly obtained recordings which the claimants, as I accept, would never have permitted, not least because to do so would have upset their own plans for the exploitation of the… material."

However, it was difficult to assess what loss, if any, the claimants had actually suffered. The judge noted that the claimants produced no evidence to demonstrate that box-office and other takings from the film would be affected merely because the film had been delayed by 12 months. The judge noted that:

"there was no evidence of any complaints to Experience Hendrix, the zealous guardian worldwide of the Jimi Hendrix musical legacy, by any recipient of the CD or by any Jimi Hendrix enthusiasts. There was not one single document commenting in any way on the fact or impact of the covermount distribution. There was nothing."

If this were true, the only damage suffered by the claimants was the loss of interest on earlier receipt of the profits expected from the release of the film. On the evidence, the judge accepted that the profits were likely to be around $5.8 million. Damages would therefore be awarded on the basis of a complex formula that referenced merely the interest rates on that amount over the previous years - the judge deftly left the calculations to doubtless horrified counsel. This would result in a damages award representing a minute proportion of the $30 million or so claimed.

The judge refused to award flagrancy damages. He held that Times Newspapers had engaged a reputable agent to obtain all necessary licences. Therefore, it could not be criticised for failing to investigate the provenance of the material in advance of receiving the letter before action.

Comment

The court was satisfied that the 'notional licence fee' approach should be adopted only in cases where the licensor might realistically have licensed that material to third parties. This sounds right in principle: either the material is sometimes licensed to third parties, in which case evidence of licence fees is useful, or the material is not licensed, in which case the debate is purely theoretical and does not help the court. Nonetheless, it seems overly dogmatic to maintain that since such poor-quality material would not be licensed, evidence of licence fees is not useful. Should evidence of licence fees for good-quality recordings not at least have been used as a backstop or minimum for considering what the proper level of damages should have been in this case? It would be regrettable if Article 13 of the directive required the court to adopt a binary approach to assessing damages, choosing either one or other of the two limbs, rather than being influenced by both.

Apart from this point, and for UK practitioners at least, the case appears to confirm that the directive has no material impact on the methods of assessing damages for copyright infringement established by the House of Lords in General Tire and Rubber Company v Firestone Tyre and Rubber Company Ltd.(2)

The case also emphasises the obvious need for a claimant to advance compelling evidence to support a damages claim. The directive may well operate to harmonise the general approach to damages awards across the European Union, but without evidence of real damage being suffered, there is no reason for the damages awarded to be at all substantial.

For further information on this topic please contact Jeremy Drew or Paul Joseph at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (jeremy.drew@rpc.co.uk or paul.joseph@rpc.co.uk).

Endnotes

(1) Experience Hendrix LLC v Times Newspapers Ltd [2010] EWHC 1986 (Ch), July 30 2010.

(2) [1976] RPC 197.

Source : http://www.internationallawoffice.com/newsletters/detail.aspx?g=2be7674b-af99-4f20-a2f5-f3b6d3be3162

interessant tout ca ...
si j'ai bien compris , dès 2006 LLC experience avait "prévu de sortir" le dvd...
donc si on ne l'a toujours pas c'est la faute au Sunday Times Newspapers...
mais oui....
donc, jani$, maintenant que tout semble réglé, ce serait bien d'envisager ( ! ) de le sortir non ?

longue vie au forum

jmarshallh a écrit:

donc si on ne l'a toujours pas c'est la faute au Sunday Times Newspapers...

La faute à Charly plutôt qui avait authourisé le CD du Sunday Times (mais ils ne possédaient pas les droits !).

exact !

longue vie au forum

Pas de RAH avant 2012 ?

To mark Hendrix's 70th birthday in 2012, fans may get "the Holy Grail, a film of Jimi performing at (London's) Royal Albert Hall," says John McDermott, catalog director for Experience Hendrix.

Source : http://www.usatoday.com/life/music/news/2010-11-02-jimihendrixstrip02_st_N.htm

de mieux en mieux ... jani$ tu me saoules !!!

je garde quand même le sourire quand je vois la qualité du travail de Mandrake et son dvd que j'ai maté aujourd'hui

longue vie au forum

Encore et encore....

On a de la chance que ce ne soit pas pour les 50 ans de sa mort !! un peu moins de deux ans à attendre, trop long !!