by / December 13th, 2013 /

Enya drawn into controversy over Lithuanian concert

Grammy Award-winning singer Enya has found herself at the centre of controversy surrounding a concert billed as the ‘Enya Christmas Show’ which is scheduled to take place in Lithuania’s capital city, Vilnius, this Saturday. However, Enya, who is famously reluctant to perform before live audiences, has no connection to the event.

The show is in fact a big-budget tribute concert co-ordinated by local promoters AdCola, who have recruited some of the nation’s most famous singers, along with the St Christopher Chamber Orchestra. Among the performers is Irish-born Erica Jennings – a household name in the country as frontwoman of two popular bands, SKAMP and The Ball and Chain  – and Rūta Ščiogolevaitė, a judge on the Lithuanian X-Factor television show. The venue for the event, the Siemens Arena, is one of the country’s largest. Ticket prices range from 77 to 120 Litas (approximately €22-€35), and the show is due to be recorded for transmission on television at a later date.

Questions were first raised about the concert in an article published in the national daily paper Lrytas on November 23rd. In it, journalist Ramūnas Zilnys outlined details of a bizarre advertising campaign broadcast on national TV, which featured singers from the show miming to original Enya recordings. Zilnys also spoke to a spokesperson for MicRec Publishing, who represent Enya’s music publishers, Sony/ATV, in the Baltic States, and confirmed that AdCola had failed to secure the necessary licencing to use Enya’s recordings in advance of running the commericials.

Furthermore, Zilnys was able to make contact with Enya’s manager and producer, Nicky Ryan, who condemned the show in a statement issued to Lrytas:

I want to make it absolutely clear that the organisers of the so-called Enya Christmas Show do NOT have the support of the artist Enya or her management.

The people we are most concerned about are all of the Enya fans who might believe that she has given her support to this show – she has not.

We were NOT contacted at any time about this particular event. We never gave permission to the organisers of the show to use Enya’s name or logo or any song material for any TV advertisements, radio advertisements or performance, of Enya’s songs or instrumentals in any way, shape or form. We shall be taking legal advice on this matter and will use whatever means are necessary to protect Enya’s reputation from any such illegal use.

At this point I would like thank you for this opportunity to inform all of Enya’s Lithuanian fans of our total rejection of this show. We are presently in our Studio recording the next Enya Album.

In the meantime, we wish all of Enya’s Lithuanian friends a Happy and Peaceful Christmas.

Nicky, Roma and Enya.

Enya’s management were clearly not the only ones unimpressed by AdCola’s conduct, as among the 800-plus commments posted online in response to the article were claims by fans that they had purchased tickets with the understanding they would be attending a performance by Enya. One person, posting in Lithuanian asked, “What shall we do with the tickets now? Me, my husband and my whole family were sure this was an actual Enya concert.”

With the Enya Christmas Show making the headlines for the wrong reasons, State contacted the promoters, AdCola, for their view on the situation.

“When we heard that Enya doesn’t approve of our event we were quite amazed, because before we started to organize this event we signed a contract with LATGA-A which collectively manages the economic rights of authors and gave us the permission to host the Enya Christmas Show and to perform Enya’s songs live,” an unidentified spokesperson for the company told State via email.

The spokesperson continued by responding to the Lrytas article: “We were shocked when a local journalist called our project illegal and dirty. We think that it is our rivals’ (who organise similar events) work.”

However, when questioned about the use of Enya’s name and the show’s title, the reply was ambiguous: “We do not use Enya as a trade mark because it is not an Enya’s concert. We only use the word ‘Enya’ as a link to the concert.” Pressed for clarification on what they meant by this, the spokesperson’s tone shifted. “We believe you are aware of the fact, that ‘trade mark’ is not a verb, therefore you may not ‘trade mark’ whatever you would like to and demand not to use it without your expressly given permission,” they stated. “Thus, there are certain rules to limit the inadequacy and attempt of ‘appropriating the vocabulary’.”

The AdCola representative then went on to say: “It is always critical to consider whether the use does anything that would, in conjunction with the trademark, suggest sponsorship or endorsement by the trademark owner. A use of another’s trademark does not suggest sponsorship or endorsement of your product when you do not attempt to deceive, or mislead, or capitalize on consumer confusion.”

The latter statement appears to have been copy-and-pasted directly from the website of a US-based legal practice called Traverse Legal.

Andrius Iškauskas, a partner at AAA Law, a firm specialising in intellectual property law in Lithuania, offered his thoughts on AdCola’s stance to State. “The position of AdCola is interesting, to say the least,” he admitted. “The theory of trademark law tells us that the essential function of a registered trade mark is to identify the origin of the goods. The owner of a registered trade mark could only prohibit the use of an identical sign if his interests regarding the essential function of the trade mark is violated. A use of an identical sign in a merely describing way would not violate the interest of the owner of the trade mark.

“And the primary question is whether the reasonably well-informed and reasonably observant user may be confused that the Enya Christmas Show is not given by Enya herself, or Enya in some way endorsed the show. This is the question of fact not the law and has to be answered in the court case.”

Iškauskas went on to say that, “My personal opinion is that the way AdCola is marketing the show (posters, web ads, audio advertisements) does not eliminate the possibility of such confusion. Actually, not being a huge fan of such shows, I personally thought that Enya was coming to Lithuania to give a concert until I examined this case professionally. I believe that there might be quite a few who think the same.

“However, until the right owner takes legal steps (and I am not aware of such in this case), AdCola can write what they want.”

While studying the case, Iškauskas also identified another potential flash point: “Additionally, and what is forgotten in this case, is that copyright issues lies on top of the trademark issue. Or perhaps copyright issues even come first. I mean that while the Lithuanian collecting society which collectively administers music rights gave the licence to perform Enya’s songs to AdCola (at least that is what I have heard), they could not give the licence to change, adapt, modify and arrange the music. This is because the Lithuanian collecting society does not administer these rights. And I understand, that the music of Enya will be modified and arranged quite a lot. That is the copyright issue.”

While AdCola are sticking to their guns over the trade mark dispute, the promoter has at least begun co-operating in the area of music licencing for the recording and future broadcast of the show. “This is being processed right now via our Scandinavian office,” MicRec Publishing’s managing director, Guntars Račs, revealed. “We’ve  had discussions with SONY/EMI and finally decided that if this show will be recorded for broadcasting, there will not be changes to the music or lyrics. This kind of licensing is now under the local copyright organisation’s responsibility and their NCB affiliate.”

The status of synchronisation licences for use of the songs on TV remains up in the air, however, and attempts to contact local representatives of Enya’s record label, Warner Music, for clarifaction on the matter have so far been unsuccessful.

At this late stage, the controversy has reached a level where it is even troubling some of the performers appearing in the Enya Christmas Show. Speaking exclusively to State, singer Erica Jennings said she agreed to perform at the concert because she believed everything was in order. “I signed up to sing in this show assuming that all permissions had been granted,” she explained. “I assumed because that is what we were told and it is what the promoters assured all journalists who attended the press conference.”

Even so, Jennings declined to participate in promotional work for the Enya Christmas Show when she learned what it involved. “My fee would have been significantly larger for a TV ad but also when I saw an example of what they planned to do, I wasn’t up for it,” she continued. “I’m not against tribute shows in general, they happen all the time, all over the world. And I think if you pay performance royalties it’s all fine. I do think using someone’s actual voice and actual brand logo is another matter and should only be done so with the artist or representative’s permission. So based on that I cannot fully endorse the event but I am under contract to take part. I can only hope that all these legal matters will be properly settled by the promoters.”

It may be too late to resolve any remaining problems before the performance goes ahead tomorrow evening, but with the event now firmly in the public eye, and with Enya’s management obviously displeased and apparently seeking legal advice, as suggested in their statement to Lrytas, it’s quite possible the Enya Christmas Show could still be making headlines in Lithuania long after this festive season has passed.