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TienLegal Global focuses on serving companies and individuals with online legal representation. Practice areas: Intellectual Property law, Contract law, IT law

TienLegal Global focuses on serving companies and individuals throughout the media and entertainment industry with full-service online legal representation. We provide domestic and international representation of exciting and dynamic companies such as broadcasters, producers, distributors, event organisers, musicians and other creative minds in all aspects of acquisition, financing, co-financing, production, co-production and distribution. TienLegal Global maintains close association with a network of attorneys specialised in various practice areas, including employment, corporate finance and commercial litigation. Our extensive experience within the media and entertainment industry has given us a unique understanding of the benefits of the close relationship between a business and its counsel. Our objective is to build and maintain great working relationships with our clients through dynamic and clear communications by email, phone, video conferencing or other methods of communication. TienLegal Global works with its clients to develop customised legal services to meet the client’s legal needs and budget. We provide our clients with an effective and affordable alternative to a highly qualified attorney. Please get in touch to find out how we can tailor our legal services for your organisation affordably and responsively.

24/04/2022

Did you know that the likelihood of someone sharing the exact facial features to you is less than 1 in 1 trillion? However humans simply don’t regconise each other like that. Lookalikes pretty much as a rule, only catch people at first glance. Additional circumstances for example setting and clothing etc may add to the regconision of a lookalike.

The Dutch supermarket Picnic has used this principle in their ad campaign in 2016. The commercial featured a lookalike of the Redbull driver Max Verstappen delivering groceries to customers while in Redbull overalls and a cap that closely resembles what Verstappen wears during media appearances and on the tracks. Verstappen was not amused as the day before the Picnic commercial was published, Verstappen appeared on a sponsored commercial of another supermarket Jumbo. Verstappen began proceedings against Picnic for infringement of his likeliness. Under the Dutch Copyright act, someone whose likeness has been portrayed can object to the publication if he has a reasonable interest in doing so.

In 2018 the court in Amsterdam ruled that Verstappen's rights outweigh Picnic's right to free expression and awarded €150.000 to Verstappen.

In 2020 the Amsterdam Court of Appeal ruled in Picnic’s favor and said that there was no infringement of Verstappen’s likeliness. Picnic has made sufficiently clear that it was a Verstappen lookalike and not Verstappen himself.

Last Friday the Supreme Court ruled that under certain circumstances an image of a lookalike can be deemed a portrait of the depicted person. This is the case if the person is recognized in the lookalike and this recognition is increased by additional circumstances, for example by the use of make-up and clothing. Whether the public understands that it is about a lookalike and not about the person portrayed is not important. Nor does it matter that an image is meant to be a parody. The Supreme Court therefore referred the case to the Court of Appeal in The Hague to reassess the case. That court will have to assess, among other things, the follow-up question whether Max Verstappen has a reasonable interest in opposing the disclosure of the portrait.

28/12/2020

Since 2020 has been a challenging year, I would like to take a moment to tell my family, friends and business partners how their support helped me tide through these unprecedented times. You have been a blessing to my life. Sending you peace, love and joy for 2021 and beyond. May you end the year with the best memories!

21/12/2020

On 15th December the European Commission proposed a new set of rules for all digital services, including social media, online marketplaces and other online platforms that can be accessed in the EU. These new rules will be set out in the Digital Services Act (DSA) and the Digital Markets Act (DMA) and could force tech companies to change their practices globally.

The DSA updates the 20 year old e-Commerce Directive and improves the mechanisms for the removal of illegal content (notice and takedowns) and focuses on transparency and accountability. This includes obligations to allow audits of the company's algorithms and policies such as how they rank digital content, how adverts are targeted at users and how decisions are made to remove content.

The DSA mainly targets platforms with more than 45 million users in the EU. These platforms includes Facebook, YouTube, Twitter and TikTok.

Companies failing to comply with the DSA rules can be fined up to 6% of its annual revenue, a sum which if levied at Facebook, for example, would amount to $4.2 billion. In addition, a platform can be fined up to 1% of its annual revenue if it “supplies incorrect, incomplete or misleading information” to regulators, or “refuses to submit to an on-site inspection".

The DMA aims to give smaller companies greater ability to compete with so called digital gatekeepers that are dictating the terms of a marketplace. Gatekeepers must act fairly by not using competitors’ data to disadvantage them, allow users to take their data elsewhere and still interact with their services and must not treat their own services more favorably than competitors that use their platform.

Anti-competitive behavior could lead to fines up to 10% of a company’s annual turnover, and the EU can break up repeat offenders fined three times within five years.

The E.U. has fined for antitrust violations before. The most expensive fine was $4.3 billion against Google in 2018.

The proposed acts are not yet legally binding as both still need to undergo a consultation period and then be passed by European lawmakers. Final rules are expected to arrive in 2023 at the earliest.

18/12/2020

Do you have an e-commerce website? Websites that are selling products online are subjected to the Dutch consumer law, specifically on distance selling and privacy law.

In terms of distance selling regulation, webshops are required to provide clear information on their company, products, prices and the consumers' rights and how to apply those rights.

One of the consumer's rights is the right to a cooling off period of at least 14 days (exceptions apply). During those 14 days the consumer may rescind the agreement and return the product without giving any reason. During this period the consumer can for example put on a dress and see if it fits, but wearing a dress to a wedding and then returning it afterwards is not allowed.

It is important to provide full clarity about your company, your obligations and the consumers' rights. This information must be easy to find on your website. Also you must always send an order confirmation. If you fail to comply with these requirements, the consumers' right to rescind will extend to 1 year. You may also risk a hefty fine from the Dutch Authority for Consumers and Markets.

These rules only apply to consumers and do not apply if you sell products or services at distance to other businesses.

If you sell to individuals from the EU, those customers must be able to use your website or app in the same way, with the same conditions and for the same price(s) as your Dutch customer. Various tax requirements and thresholds may apply in each EU country, with a side note that as per 1 July 2021 there will be no threshold and tax payments to each EU country can go via your local tax authority.

The privacy policy is another important requirement for webshops. You are required to keep your clients' details secure with appropriate technical measures, such as an SSL-website and encrypted servers. If a third party is processing your client details, you must have a data processing agreement with that party.

Even if you don't have a webshop, but you are processing details from your customers, you are still required to have a privacy policy.

Is your webshop / business compliant with all legal requirements?

16/12/2020

You can choose to sit and wait for every day to pass by or you can use the day to put in the work and achieve what you want in life.

Just keep in mind that no matter what happens today, there is strange comfort in knowing that the sun will rise and set again tomorrow.

14/12/2020

Have you ever purchased a service or product you weren't happy with? You don't want to pay for something that is of poor quality, right? Or perhaps the products or services were not delivered on time. It is likely that you may still want the products to be delivered or services to be performed (Dutch: nakoming) or to terminate your contract (Dutch: ontbinden). And if you incurred damages due to the late delivery or poor quality of the services/products, you want your damages to be covered.

The reverse situation may also be true; if you don't pay for a service or product you've received, the other party may want to terminate the agreement with you and/or add costs (damages) onto your invoice for not paying (on time).

Under Dutch law, in order to demand for damages, the other party must be in default (Dutch: verzuim) and you are required to give the other party a chance to remedy a breach by sending a notice of default first (Dutch: ingebrekestelling). If you don't, you may not be able to terminate your contract and you may end up paying for damages incurred by the other party.

There are exceptions to sending this notice of default if: a final deadline was agreed for the fulfillment and this date has passed, b) it concerns an obligation to pay compensation; c) it's clear from a statement from the other party that he will not perform, and d) standards of reasonableness and fairness apply. In these cases it is not necessary to send a notice of default. In all other cases, a notice of default must be sent to the other party.

Note that it can be contractually agreed that the requirement of notice of default is always necessary or that default occurs without the need for a notice of default. This is usually done in standard terms and conditions. However, there are situations in which a contract on default and notice of default may be unacceptable by standards of reasonableness and fairness.

So make sure that you read and understand the standard terms and conditions before taking any (legal) action.

If you are unsure whether a notice of default is required or you have any questions about the content of your notice of default, please contact me for a review.

11/12/2020

Have you checked if your general terms and conditions are up to date?

Due to the pandemic outbreak, payment problems arise, suppliers are unable to supply on time and businesses' rights and obligations under contracts are getting more attention.

A frequent discussion is whether a business can apply a force majeure clause to excuse it from performing certain obligations or from doing so on time.

When you are doing international business, check the governing law of the contract you are entering as the rules of force majeure vary between jurisdictions.

Under Dutch law, for example delays in deliveries by the postal services are not automatically classified as force majeure (Dutch: overmacht). Even epidemics or pandemics are not automatically considered force majeure events.

If no agreement is made between the parties, the fall back is the definition of force majeure provided by law, which is referred to as an event that renders the performance of its obligations impossible. This event must be beyond your control whereby the event is not attributable to you. In the absence of a contract, a force majeure event must always be assessed on the basis of the specific circumstances of the case.

Although under Dutch law the principles of reasonableness and fairness always apply, court costs can be deer and in order to avoid any ambiguity it's recommended to define 'force majeure' in your agreements or general terms and conditions. This is a smart way to limit or broaden the term 'force majeure' and include, for example, delays by postal services or non performance from other third parties and risk allocations during epidemics or pandemics under this definition.

As the end of another financial year approaches, now is the perfect time to review and update your general terms and conditions.

09/12/2020

It’s midday, don't forget to stop a moment, cease your work and look around you.

07/12/2020

I hate to be the bearer of bad news, but following a recent decision by the EU court it's likely that the music industry is going to feel a negative economic impact.

Under EU law artists and record companies enjoy a right of equitable remuneration for the broadcast of their “phonograms published for commercial purposes, or reproductions of those phonograms through broadcasting by wireless means or any other type of communication to the public".

Simply said, when a restaurant or radiostation plays a phonogram (like a CD) they have to pay the artist and the record company an equitable renumeration. In the Netherlands the collecting society Sena is authorized to collect these renumerations and divide it amongst the artists and record companies.

The Spanish collecting societies AGEDI and AIE claimed over €17 million for the broadcast of phonograms in series and films on the basis that incorporating music in films (synchronization) is a “reproduction” of the phonogram. However Atresmedia believes that when a television channel shows a film it is not broadcasting phonograms or reproductions of it, but a purely audiovisual work.

Since the term phonogram in media directives is not defined, the case between Atresmedia and the Spanish collecting societies AGEDI and AIE raised the question whether payment should be made when the phonogram is synched in a film.

Based on definitions of phonogram found in various treaties, the EU court ruled on 18/11/2020 that once the phonogram is synchronized in a film, it is no longer a phonogram. No equitable renumeration is due for publishing a film with music synched in it.

The artist and record companies still have the right to collect payments for the music by contract. In future, filmproducers might have to pay more for synchronization of music in their filmproductions.

In the Netherlands, this could mean that broadcasters and other publishers of audiovisual work (like Netflix and now with the new media law in effect, also online video sharing platforms) no longer have to pay to Sena. Based on this ruling they might even be able to claim their previously paid money back from Sena if they have a synchronization license.

03/12/2020

Following the implementation of the EU Directive into its national legislation, the Dutch Media Law has been amended and is in effect since 1 November 2020.

The Media Law regulates amongst other things, advertising, sponsoring and product placement. This law only applied to traditional television broadcasters, radio and on-demand video services and it will now also apply to online video-sharing platforms, such as Netflix and Hulu.

Now the core task of public broadcasters is shifted and they now must broadcast varied programs in relation to information, culture and education. The public broadcasters are still allowed to make entertainment programs, but this is only allowed if it contributes to their core task. This way, the public broadcaster will be able to distinguish itself more clearly from commercial broadcasters.

In terms of advertising, sponsoring or product placement, this must be "recognizable as such" to the viewer.

It is however not clear whether influencers (paid vloggers) on e.g. YouTube are to be considered an on-demand video sharing service. If so, they will have to comply with the new media law and will be subjected to the supervision of the Dutch Media Authority (DMA).

For the social media influencers (paid vloggers) out there, you are required to be transparent about your posts and say that it's an ad or that you are being sponsored (tip: add a hastag or or ). These requirements are already imposed on US influencers by the FTC.

Currently YouTube and other social media are required to comply with the Dutch Advertising Code Social Media and Influencer Marketing, which is a sort of self regulating code based on complaints from viewers.

The question remains whether the DMA has the power to supervise and penalize Youtube (vloggers) when necessary. If so, a penalty of max. €225000 can be given if advertising, sponsoring or product placement is not recognizable as such.

In the interim, the DMA has stated on its website that some things are still unclear and the European Commission and regulators are consulted, and a report is to be expected.

24/01/2020

I believe there's a possibility of living the simple life and be closer to nature. What do you do to feel closer to nature?

12/01/2020

Turning a blind eye doesn't work out in some cases. An US internet service provider (ISP) Cox Communications has tried to do just that and was hit with a huge fine of 1 billion dollars.
A group of recording companies (including Sony Music Entertainment and Warner Music Group) claimed that Cox is liable for contributory and vicarious copyright infringement.
Generally, in the common law, contributory infringement is a form of "secondary liability” that is imposed on someone who doesn't commit the infringement directly, but is found responsible if that person has knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Vicarious liability may be imposed on someone who has the right and ability to supervise the infringing activity and also has a direct financial interest in the activity.
In this case, the judge addressed the ownership of the copyrights and the knowledge element in contributory infringement.
In the US, copyright must be registered in order to claim copyright infringement. While a certificate of registration is considered evidence of valid copyright ownership, courts may also look at other indicia of ownership, such as documents establishing chain of title.
The court found that the record companies established ownership to the majority of the works. It also found that Cox vicariously and contributorily infringed a total of 10,478 copyrighted works because Cox had specific knowledge of the infringement through the detailed notices from the record companies of the infringement by its subscribers and Cox did not take appropriate action to stop the infringement.
Cox plans to appeal the case, so watch this space.

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