It seems that Britney Spears, when she recorded a phonogram of the song "I Love Rock 'n' Roll never thought that one day she would be protected by Russian court. The rights for that song are owned by a US company Sony Music Entertainment, which licensed the rights to its offspring in Russia with the same name Sony Music Entertainment Ltd. This company has the rights for the song on the Russian territory and on the territory of the CIS countries. It monitored TV shows and noticed that TV channel "Friday" ran a show "Heads and Tails" dedicated to Shanghai. That show included the disputed phonogram. Besides, that show was also placed on the Internet at the address www.friday.ru. Sony Music Entertainment Ltd did not authorise broadcasting the song in that show and sued the TV channel.
It transpired during the court proceedings that the show was provided to the TV channel by another company, Trevano Pictures Ltd. The TV channel, though, could not provide evidence to the effect that the phonogram had been included into the show by Trevano Pictures Ltd. Trevano Pictures Ltd was summoned to court but did not appear, perhaps judging that it did not have interest in the proceedings. The plaintiff providently secured notarial evidence to prove that the show had been showed on TV and the Internet site.
The court of first instance found that the TV channel, respondent, did not obtain permission from the licensee to include the disputed song in the show and satisfied the plaintiff's claims. The claims were compensation in the amount of approximately $10,000. Russian law provides several options to restore justice. These are damages, compensation or double cost of a licence normally given in such circumstances. In order to claim damages, the plaintiff should prove the damage he sustained as a result of infringement. The courts are quite attentive to submission of proper evidence. Proving damages in a case like this is not easy, therefore the plaintiff chose compensation. In case of compensation, the damage should not be proved and the amount which may be claimed ranges from $300 to slightly less than $200,000. The court has the right to moderate the amount if in its opinion the claims are too high. In this case the plaintiff claimed $10,000 only, which was considered by the court as adequate compensation. The respondent did not agree with the judgment and appealed it. The appeal court, however, did not find the arguments of the respondent convincing and sustained the judgment of the first instance court.
The respondent stubbornly continued offering resistance and appealed the judgment to the cassation instance of court. In its complaint the respondent argued that the previous court instances had not properly applied the relevant laws and that conclusions of the courts of lower instances did not agree with the facts on file and evidence provided by him. It should be noted that the cassation instance of the court cannot re-appraise the circumstances established by the lower courts and only incorrect application of laws may help the complainant to reverse the judgment in his favour. The cassation court examined the explanations of the parties, checked correctness of application of laws in accordance with the Code of Commercial Procedures and the conclusions of lower courts with regard to proper facts funding and came nevertheless to the conclusion that there were no grounds to reverse or change the judgment of lower courts. Hence, broadcasting of the song "I Love Rock 'n' Roll" proved to be costly for the TV channel.
Most probably, Britney Spears did not even learn about these judicial battles about her song in Russia.
Vladimir Biriulin |
Gorodissky & PartnersRussia 129010, MoscowB. Spasskaya Str25, stroenie 3Tel: +7 495 937 6116 / 6109Fax: +7 495 937 6104 / 6123pat@gorodissky.ru www.gorodissky.com
