The Ivors 2019 – Nominees

Russells would like to congratulate Arctic Monkeys, Ben Howard, Jamie Scott and Dan Caplen for their nominations at this year’s forthcoming Ivor Novello Awards.

• Arctic Monkeys and Ben Howard are nominated for best song musically and lyrically for their tracks “Four Out Of Five” and “Nica Libres at Dusk”, respectively. 

• Jamie Scott and Dan Caplen who co-wrote the song “These Days” which is nominated for the PRS for Music Most Performed Work.

The Ivors celebrate, honour and reward excellence in British and Irish songwriting and composing. Presented and judged by music creators, they represent the pinnacle of musical achievement and peer recognition.

The winners will be announced at a ceremony at London’s Grosvenor House on 23rd May.

Article: Change is on the way!

Parliament is at last going to debate changing the divorce process to reflect views long-held by many family lawyers. Whilst this debate is long overdue, it is welcome.

Current basis for divorce

At present in England there is only one ground for divorce – that is that the marriage has broken down irretrievably. In order to prove this ground to a Judge, the petitioner (the person who starts the divorce) was to rely on one of 5 “facts”:

  1. Their partner has committed adultery and they find it intolerable to live with them;
  2. Their partner has behaved in such a way that they cannot reasonably be expected to live with them;
  3. The parties have not been living as husband and wife for a period of 2 years or more and their partner consents to the divorce;
  4. Their partner has a deserted them for a period of 2 years;
  5. The parties have been separated for 5 years.

Nearly 60% of all divorce petitions issued in 2016 relied one facts 1 and 2 above. In other words, in nearly 60% of all petitions issued, one party took the blame for the breakdown of the marriage.

The issue

Currently, when everyone is hoping to resolve matters amicably in what is often the first formal contact made by one party or their solicitors, they are forced to suggest almost immediately that one party takes the blame for the breakdown of the marriage.

Problems arise from a combination of 2 factors. It is very rare that one party is entirely to blame for the breakdown of the marriage and in many break-ups; both parties accept that fact. However, making an amicable decision to end a marriage where neither party takes the blame would involve waiting for two years.

This may not seem like a great hindrance to the lawyers since the divorce is (normally) just an administrative process, however, it can be a difficult concept for the clients to accept or understand. The decision to end a marriage is, in almost every case, a difficult and fundamental step and having to revisit that decision and all the attached emotions in order to complete paperwork is simply not palatable. Many couples have been ruminating on a decision as to the future of their marriage for a considerable period of time, the idea of finally reaching a decision and being able to take no action is, understandably, difficult.

Married couples are faced with an unenviable choice: wait for a number of years before making any progress towards a legal separation or force blame on one party at the risk of adding acrimony to what is already a tense time.

The result in the majority of cases is a form of collusion. One party agrees to make relatively mild allegations against the other; the other party agrees not to defend the petition so long as they are not taken to have admitted anything that is written, and the divorce moves forward. It is essentially an agreement to mislead the Court as to the true nature of the breakdown of the marriage.

The government now appear willing to address this issue head-on and have relented to the ongoing calls for divorce to become a no-fault process, recognising the benefits that this will have for the individuals involved and, most importantly, the children of the family who are inevitably caught up in the issues.

The arguments against change

It may seem obvious that there should be an option to end a marriage by agreement and without antagonism. However, what is crucial for many is that marriage as an institution is protected. It should remain a decision to be considered carefully and as a lifetime commitment. The concern is that if there is no need to cast blame then it becomes significantly easier to bring marriage to an end.

To my mind, that underestimates people as a whole and misunderstands the effect of the current process. If there is a “spike” in petitions for divorce following a change in the law, surely that is because people have felt trapped in an unhappy marriage, not because they have suddenly lost respect for their marriage vows, their children or immediately forgotten the nature of marriage.

Anyone who takes the step of seeing a solicitor will be advised that the current law is extremely unlikely to be a barrier to pursuing a divorce. The recent case of Tini Owens which garnered significant attention in the press is in a very small minority of cases where one party actually decides to defend a divorce petition and wants to stay married, despite being given the very clear message from their spouse that the marriage is over.

The proposals for change

They are essentially as follows:

  • The option to allege fault in a divorce will be taken away entirely.
  • The option to defend the divorce will be taken away entirely.
  • The process would be one of notifying the Court that the marriage has broken down irretrievably.
  • After a fixed period of time following this notification, either party will be able to apply to “finalise” the divorce. They can also apply jointly. This will be the second (and final) stage of the process. The plan is to consult on the length of time necessary but 6 months is currently being suggested.

There may be some who view the decision to take away the option of alleging fault altogether as too drastic. Some people seeking a divorce may feel very firmly that their spouse is to blame and that this should be reflected in the proceedings. However, filing a petition is unlikely to provide any sort of closure from issues arising from the marriage and, given all the harm and difficulty it can cause, it is on balance, in my opinion, preferable to remove the option altogether.

Whilst the government currently has plenty on the legislative agenda, it is hoped that momentum for these changes will continue to build. It is welcome news that Parliament will debate the changes in the May 2019 session. For almost all who practice in this area, it is an obvious change and one we want sooner rather than later.

If you are currently going through marriage difficulties and wish to discuss your options please contact any member of the Russells family and matrimonial team.

Brit Award nominations 2019

Russells would like to congratulate the following artists on their nominations for this year’s Brit Awards:

  • Arctic Monkeys for British Group;
  • Florence + The Machine for British Female Solo Artist and British Album (for “High As Hope”);
  • Mabel for British Breakthrough Act;
  • Clean Bandit for British Single and British Artist Video (for “Solo” (feat. Demi Lovato));
  • Dan Caplen for British Single and British Artist Video (for “These Days” by Rudimental (feat. Jess Glynne, Macklemore & Dan Caplen)); and
  • Sam Fender for winning the Critics’ Choice Award.

The ceremony will take place on Wednesday 20th February 2019 at the O2 Arena.

Dario Maggiulli

Russells would like to congratulate Dario Maggiulli who became a Senior Associate at the firm on 29th October 2018.

Simon Jordan

Russells would like to congratulate Simon Jordan who became a Senior Associate at the firm on 25th October 2018.

Women In Games

We are delighted to announce that Marine Cabour recently joined the board of Women in Games. Women in Games WIGJ is a not for profit organisation that works to recruit more women into the games industry and to support those already in the industry. It also campaigns to ensure individuals and businesses understand that a more diverse workforce leads to greater productivity and financial success.

She also attended the European Women in Games conference on 11th and 12th September 2018 where she chaired a panel discussion on women’s groups in the workplace alongside representatives from Ubisoft, EA, Improbable and Jagex (https://www.womeningamesconference.com/).

You can find out more information about Women in Games here:

Please do not hesitate to email Marine if you have any video game related questions.

SCOTT HUTCHISON – FRIGHTENED RABBIT

Following the incredibly sad and tragic news of Scott’s death last week, Russells would like to offer their sincere and heartfelt condolences to the remaining members of Frightened Rabbit, Scott’s family, friends and to his many fans.

Scott will be greatly missed by those of us who had the privilege and pleasure to work with him.

RUSSELLS FEATURED IN TODAY’S THE TIMES

Steven Tregear, Partner and head of litigation, and Callum Galbraith, litigation Senior Associate are featured in today’s The Times online law section.

Their article, entitled, “High notes and sour notes: copyright in the English Courts”, discusses some of the key UK copyright infringement cases and the need for judicial clarification over the distinction between performance and composition (a writer/ composer being entitled to a copyright interest and publishing royalties; a performer not automatically entitled). The article concludes that, notwithstanding the uncertainty caused by different Court judgments, as the music industry thrives, it is probably only a matter of time before the UK Courts consider this issue again.

The full article can be read by The Times’ subscribers at: https://www.thetimes.co.uk/article/high-notes-and-sour-notes-copyright-in-the-english-courts-09dpb2hjx

Article: Goldscheider v The Royal Opera House – A Sound Judgment?

It might be said that noise is to music what words are to poetry: the latter cannot live without the former.  There is a notable and crucial difference, however, in that unacceptable and offensive words are unlikely to cause immediate and significant physical damage to one’s health.  Sticks and stones and all that.

It is well documented that exposure to noise over certain levels can cause significant and sometimes irreparable hearing damage.  For a musician whose livelihood depends on their ability to hear this is devastating.  One such case is that of Christopher Goldscheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB), where the High Court ruled that the Royal Opera House (“ROH”) was responsible for “acoustic shock” suffered by Mr Goldscheider, a viola player in its orchestra, during a rehearsal in 2012 of Wagner’s Die Walkure, one of the Ring operas.  The ROH is considering whether to appeal the decision.

Background

The Ring operas require a huge orchestra including large French horn and brass sections together with two sets of timpani.  It is a challenge at the best of times to fit the players into a confined orchestra pit with no room for expansion.

In standard orchestral configuration, the horns and the brass are at opposite sides of the orchestra, however, after consulting the Music Director, Antonio Pappano, it was decided for the ROH’s 2012 production to try seating the horns and brass together.  As the timpani play for much of the time with the brass, they were seated in the same area behind the viola section and with the principal trumpet’s bell only three feet away from Mr Goldscheider.

Mr Goldscheider wore custom made ear plugs provided by the ROH that reduced his noise exposure by 9dB.  He found these insufficient, so he switched to ear plugs generally available and again provided by the ROH which reduced his noise exposure by 28dB, using them in those parts of the rehearsal when he felt he needed them.  He said he found the noise from the “wall of sound” generated by the horn and brass sections overwhelming, excruciatingly loud and painful.  He began to feel weird and, after the rehearsal, became increasingly unwell and dizzy.  His GP diagnosed acoustic trauma and signed him off work.  Further investigations confirmed that Mr Goldscheider had high frequency hearing loss and that he had suffered acoustic shock as a result of exposure to sudden, unexpected and high-pressure noise.

Mr Goldscheider did not return to the ROH and is now unable to work as a professional viola player.

The Claim and Defence

Mr Goldscheider based his claim on the Control of Noise at Work Regulations 2005 (“the Regulations”), which are designed to limit noise exposure and ultimately protect hearing and health in the workplace.

The Regulations, with which Mr Goldscheider said the ROH had failed to comply, impose limits on noise exposure, the calculation of which is complex and involves measurements being taken and averaged over a period of time, with consideration given to peak sound pressure exposure.  Risk assessments must be carried out, including in relation to the levels and duration of noise and the effects of exposure.  Measures must then be put in place to eliminate or control noise exposure and hearing protection is to be provided if the exposure reaches certain trigger levels.  Health surveillance must also be carried out.  In addition, information and training must be provided.

The ROH denied that it was in breach of the Regulations, stating it had done all that was reasonably practicable to reduce noise exposure to a low level whilst considering the technical and aesthetic demands necessary by the nature of its work as a performing company.

The ROH also denied medical causation as its expert medical advice was that (1) acoustic shock could not cause long term hearing damage; and (2) hearing damage of the type complained of by Mr Goldscheider could not be caused by an isolated incident of exposure to live music.

The Regulations in the Music Sector

It is easy to understand the need for protecting against noise exposure for those who work in, for example, factories or construction sites, but applying the Regulations to the music sector, where the creation and production of noise is the very purpose of its activities, may be less easy to comprehend.

There was a considerable amount of discussion in the music sector before the Regulations came into force as to how they would or could be implemented.  Orchestras and opera companies are by their very nature noisy and, as the judgment makes clear, noise is not the by-product (as it would be in say, a car factory), it is the product.

Virtually all organisations and musicians understood that compliance with the Regulations would be difficult in an environment where the ability of the performer to hear both their own sound and that being produced by their colleagues is crucial.  This was recognised at the outset by the ROH which, along with many other organisations, implemented a number of procedures to minimise the risks to its employees.

The measures put in place by the ROH included carrying out risk assessments in relation to noise exposure, measuring the sound levels in the pit, using acoustic shields and baffling to dampen and deflect sound, re-configuring the pit lay-out, carrying out audiometric testing of all players, providing custom made personal protective equipment (“PPE”) in the form of ear plugs and providing training.

The Judgment

Despite the measures put in place by the ROH to protect its employees from hearing damage, the Judge found, amongst other things, that it did not carry out an adequate risk assessment relating to noise in rehearsals and did not take measures to reduce exposure to it.

Having heard the “honest and earnest evidence” given on behalf of the ROH, the Judge acknowledged that the ROH wished to maintain the highest artistic standards and reputation.  Nevertheless she stated:

However laudable the aim to maintain the highest artistic standards it cannot compromise the standard of care which the ROH as an employer has to protect the health and safety of its employees when at their workplace.”

Furthermore, and of great significance to the classical music sector, the Judge held that:

“…the ROH did not inform [Mr Goldscheider], nor it would appear other orchestra players of the mandatory requirement to wear hearing protection when the noise was likely be above the upper [levels permitted by the Regulations].  It is not enough to leave the issue for the musicians to judge for themselves, they should have been informed of the strict requirement and the need for it…

The Judge found that the noise levels in the rehearsal of Die Walkure were within the range identified as causing acoustic shock and that Mr Goldscheider’s exposure to the noise produced by the principal trumpet led to the injury he sustained and consequential symptoms, from which he continues to suffer.

Practical considerations arising out of the Judgment

If the ROH, with all its resources, expertise and measures in place to meet (as it thought it had) its obligations was unable to do so, performing organisations of all types and sizes will be wondering what they can do to ensure they are compliant with the Regulations.

Anything that interferes with the ability to hear the natural sound they are making causes considerable difficulties for a performer and can affect every aspect of the sound produced.  Measures designed to limit exposure can be ineffective: screens absorbing noise may leave musicians unable to judge their own dynamic and playing louder to compensate; acoustic shields take up much-needed space and also reflect the sound back to the player behind it; ear plugs distort the sound heard and make it extremely difficult to judge the sound being produced.

The ROH, following HSE guidance in 2008 (in its publication Sound Advice: Control of Noise at Work in Music and Entertainment), encouraged individuals to wear PPE hearing protection when they considered they needed it rather than making it compulsory.  The Court’s ruling means that those musicians who are protected by the Regulations do not have the option of self-regulating their exposure to noise when risk assessments identify an issue; they must be informed of the requirement to wear hearing protection and performers must do so.

How the ruling is going to work in practice in relation to ensuring PPE is worn when necessary is not easy to see.  The ROH pointed out that it is virtually impossible to police individuals during a rehearsal or performance to ensure they are wearing hearing protection.  In this instance, Mr Goldscheider had PPE available to him and used it when he thought he needed it and it was found to be insufficient.

The most effective way to limit noise exposure is to increase the space in which it is produced.  In a fixed orchestral pit in the middle of a theatre, this may be unachievable technically and may require reducing auditorium seating and consequential (and essential) box office takings, not to mention the costs involved and closure time for the works to be carried out.  For most organisations, including the ROH, these are simply not viable options.  However, the Judgment suggests that what is “reasonably practicable” as far as compliance with the Regulations is concerned is more than what is convenient or financially desirable.

There are few cases where one has sympathy for both parties in equal measure, but Goldscheider is one.  For Mr Goldscheider, the damage to his hearing has destroyed his career.  For the ROH, it was doing all that it thought it could reasonably do to limit the noise exposure to its employees whilst maintaining the artistic and musical standards for which it is well known.  Unfortunately for the ROH, the Court found that was not enough.

Ellen Gallagher

29 March 2018

Ellen Gallagher is a media and entertainment litigation lawyer at Russells and previously worked at English National Opera and Opera North.  She is also a violinist.

Kraftwerk – Grammy winner

Russells would like to congratulate Kraftwerk, winner of Best Dance/Electronic Album at the 60th Annual Grammy Awards. The awards were held last night at Madison Square Garden in New York City.