Spotify face multiple mechanicals challenges
Copyright , Music Publishing / October 2017

COPYRIGHT Music publishing, streaming   Another US lawsuit has been added to the mounting litigation against Spotify and the streaming platform’s alleged failure to pay mechanical royalties in the USA for the right to ‘copy’ a song (rather than the ‘performing’ right).    In fact there were three developments: an objection to Spotify’s proposed settlement of the original class action on this issue, a rebuttal of its most recent legal arguments, and a brand new lawsuit. Hypebot’s take is this: “The recorded music industry is in the midst of a renaissance thanks to revenue from a single source – streaming. But a growing string of lawsuits filed by songwriters and publishers, and an aggressive new legal tactic by Spotify, threatens the company’s pending IPO and could derail the industry’s delicate recovery” US law provides a compulsory licence covering mechanicals, but this put Spotify under an obligation to contact (and pay) the copyright owners of every song it streams (or in default of finding an owner, alert the US Copyright Office) and Spotify hired the services The Harry Fox Agency to undertake this role. The fact songwriters and music publishers were receiving payment for their performing right via collection societies such as ASCAP…

Sony and Dubset conclude ground breaking ‘remixing’ deal
Copyright , Music Publishing / October 2017

COPYRIGHT Recorded music   Sony Music have recently signed a deal with Dubset to ‘legalise’ remixes of their songs. The project follows on from the Content ID agreement between YouTube and music publishers in 2012.    ‘Sampling is just a longer term for theft … Anybody who can honesty say sampling is some sort of creativity has never done anything creative’. Those were the words of The Turtles’ Mark Volman during an interview with the L.A. Times during the 1991 lawsuit his group levelled against hip-hop group De La Soul for their ‘Transmitting Live From Mars’. As a result of the out-of-court settlement, the group’s iconic album 3 Feet High and Rising is still unavailable on major streaming services.   At the turn of the millennium, the costs of sampling were so great that scholar Wayne Marshall declared that the costs had led to the ‘giving up’ its firstborn, with the heavily-sampled layers of Public Enemy replaced by the authenticity articulated by band The Roots. Yet, Moses is not yet in the bulrushes.   As I pointed out in my recent article on Chance the Rapper, free mixes and mixtapes circulated in the grey area of SoundCloud’s free content have only gained in prominence….

Mixtape Mistake?
Copyright , Music Publishing / October 2017

COPYRIGHT Recorded music, music publishing   Three-time Grammy-winning Chicago-native Chancellor Johnathan Bennett aka Chance the Rapper was sued for copyright infringement last week. The suit was filed by Abdul Wali Muhammad on the 12th September in an Illinois District Court. Muhammad is a musician-turned lawyer, who copyrighted the composition of ‘Bridge Through Time’ in 1979.  Muhammad’s claim rests on Bennett’s sampling of his composition in the track ‘Windows’ from his debut mixtape as Chance, 10 Day. The sampling of the track is quite clear with it forming the beat to ‘Windows’. The only modifications made by producer Apollo Brown were a slight move from 81 to 80 BPM and the track moved down a semitone. Whilst the use of copyrighted material is fairly obvious, Bennett’s particular approach to the music industry makes the case interesting. Bennett wrote 10 Day after being suspended from school in 2011. ‘Waves’ was released in December 2011 and soon after Complex listed him as one of ‘10 New Chicago Rappers To Watch Out For’ in February 2012. The mixtape itself was only self-released on DatPiff.com in April 2012. Since then it has been downloaded for free 538,617 times (as of 18th September 2017) from that…

“We Shall Overcome” – Free at last!
Copyright , Music Publishing / October 2017

COPYRIGHT Music Publishing   We Shall Overcome was labelled by the US Library of Congress as “the most powerful song of the 20th century”. It was a unifying anthem for the 1940s labour protests and the 1960s Civil Rights Movement led by Dr Martin Luther King, and came to symbolise the spirit of protest.     When back in 2012, the producers of the film “The Butler”, a film based on the African-American Civil Rights Movement viewed through the eyes of a White House butler, approached The Richmond Organisation (TRO) and Ludlow Music Inc, publishers of We Shall Overcome, to licence the rights to the popular protest song, they were met with a demand for $100,000 for the use of “Verse 1” in the film.  They eventually agreed to licence a three second clip for a payment of $15,000. Then in February 2015, the We Shall Overcome Foundation (WSOF), a faith based non-profit organisation which took their name from the song, wanted to include a performance of the first verse of We Shall Overcome, sung ‘a capella’, in a documentary being made about the origins of the song.  A representative approached TRO-Ludlow Inc for a quote to licence the synchronisation rights and despite…

YouTube-MP3 agrees to shutter
Copyright , Internet , Music Publishing / October 2017

COPYRIGHT Internet, recorded music   YouTube-mp3 has agreed to shut down and hand its domain(s) over to the Recording Industry Association of America (RIAA). With millions of visitors each day, the ‘steam ripping’ YouTube-MP3.org was one of the most visited websites on the Internet.  Last year, the Germany-based YouTube to MP3 converter website was sued by the RIAA for copyright infringing their rights.  It had also been sued by the record industry in its home country in 2013. Now in an agreed settlement, YouTube-MP3 will shut down indefinitely. The BPI (British Recorded Music Industry) and the IFPI (International Federation of the Phonographic Industry) were also parties to the action, which accused the site of not only copyright infringement, but also circumventing YouTube’s copy protection mechanism, and violating the USA’s Digital Millennium Copyright Act. A report earlier this year by the UK’s Intellectual Property Office and PRS For Music said that stream ripping was now the “most prevalent and fastest growing form of music piracy”. According to an IFPI  report published last year, the site has been reportedly attracting more than 60 million monthly visitors. In the same report, it was mentioned that 50 percent of the 16 to 24-year-old survey respondents used stream ripping services…

“Uptown Funk” hit with one more writer
Copyright , Music Publishing / October 2017

COPYRIGHT Music Publishing   A complaint has been filed in the US District Court of New York by Lastrada Entertainment Company Ltd, the publishers of “More Bounce to the Ounce” written by Roger Troutman and ZAPP.  The suit is against Mark Ronson, Philip Martin Lawrence, Jeffrey Bhasker, Sony/ATV, Warner/Chappell, Vevo, Spotify, Apple and others.  Lastrada is seeking damages of up to $150,000 per infringement, a permanent injunction against profiting from the alleged infringement, and a jury trial to decide the matter.   The latest lawsuit draws parallels with “Blurred Lines” between the estate of Marvin Gaye and Robin Thicke and Pharrell Williams, where the claimants asserted that the respondents unintentionally copied Marvin Gaye’s 1977 hit “Got to Give It Up”. The suit went to a jury trial who decided in favour of the estate and the claimants were awarded $7.4 million in damages and a share of the profits.   The background is that “Uptown Funk” is the lead single from the album of the same name by uber-producer Mark Ronson recorded with Bruno Mars on vocals and released by RCA Records on 10th November 2014.  It was a worldwide hit spending 14 consecutive weeks at No.1 on the Billboard Hot 100 in the US and topping the charts…

Jackson’s 3D Thriller heads back to court
Contract / October 2017

CONTRACT Film & Television, performers   Ola Ray, the then young actress who played opposite Michael Jackson in the iconic Thriller video has launched another legal against the Michael Jackson Estate on the back of news that director John Landis had reworked the original video as a 3D version of ‘Thriller’ and this short has now been premiered at the Venice Film Festival. Ray previously sued Jackson just before his untimely death in 2009, claiming that she had been promised a 2.5% share of the royalties generated by the iconic music-video-come-short-film, and although she had received some $200,000 this was an under payment. A settlement with the Jackson Estate followed in 2012, reportedly worth $75,000.  Landis settled his own legal action with the Jackson Estate in relation to royalties generated by the video.   Ray has now said she wasn’t consulted about the 3D version of ‘Thriller’. She told reporters: “I’m outraged, upset and in shock. When I heard rumours about a possible 3D version, I contacted the director and said ‘we need to talk about this’. But he never responded to my email. They haven’t tried to contact me or negotiate anything. How do they think they can just do this without…

Public Enemies
Artists , Contract , Music Publishing / October 2017

CONTRACT Artists, recorded music   Flavor Flav has launched a legal action against his former Public Enemy collaborator Chuck D and various other parties associated of the seminal hip hop group over allegedly unpaid royalties.  That said it seems Flavor Flav and Chuck D will still perform together in upcoming live shows. According to TMZ, the lawsuit covers unpaid royalties and revenue shares from recording income, publishing, live performances and merchandising income generated by Public Enemy, including monies from the recent album ‘Nothing Is Quick In The Desert’ and money relating to a deal that resulted in Public Enemy action figures being sold. In the lawsuit, Flavor Flav (real name William J. Drayton) claims that he and Chuck D (real name Carlton Ridenhour) had a long-established agreement that profits from their music, merchandise and concerts would be split between them. Despite that alleged arrangement, Flavor Flav claims that Public Enemy’s business management firm Eastlink has not been sending the earnings he is owed, which have “diminished to almost nothing, and Drayton has been refused accountings, even on the items bearing his likeness, Responding to the litigation, Chuck D told TMZ: “Flav has his rights, but took a wrong road on…

Martin Garrix freed from contract with Spinnin Records
Artists , Contract , Music Publishing / October 2017

CONTRACT Recorded music, artists   A Dutch court has sided with EDM producer and superstar Martin Garrix in a legal dispute with his former label and management firm, Spinnin Records and MusicAllstars. Both of the defendants were founded by Eelko Van Kooten.   In August 2015 Garrix said that he was parting company with both of Van Kooten’s businesses and then launched a legal action, accusing his former manager of having provided “false and misleading information” when Garrix, as a teenager, had signed his deals with Van Kooten’s companies.   The producer also alleged that, by signing an artist he managed to his own label in 2012, Van Kooten had a clear conflict of interest, and that he had signed a recording deal that was in Van Koote’s own interests, but that Van Kooten should have been representing the interests of his client  – Garrix. Garrix’s father countersigned the recordng agreement with the then teenager (he is now 21).    In the original lawsuit, Garrix sought to reclaim the sound recording rights that had been assigned to Spinnin Records and 4.35 million Euros in damages.  Spinnin counterclaimed, arguing that Garrix’s unilateral termination of contract had cost the label over 6.4…

“England’s loudest band will be heard”….in a courtroom in the US
Artists , Contract / October 2017

CONTRACT Film & TV, Artistes   The ‘This is Spinal Tap’ litigation has been ongoing for some time and now and it looks like it will go ahead. Last week it was ruled that the case will proceed on the provision that some new paperwork is filed.  Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner allege that Vivendi, owner of StudioCanal, who in turn is the rights holder of the ‘Spinal Tap’ movie, of deliberate under-payment of music and other royalties.  The action started when Harry Shearer began the lawsuit against Vivendi, and not long after Christopher Guest, Michael McKean and Rob Reiner followed suit. They turned it up to eleven, and claimed that Vivendi “wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”. Vivendi called the litigation ‘absurd’ and stated that they planned to have the case dismissed. In the ruling last week the Judge stated that the creators of ‘Spinal Tap’ had not done enough to substantiate the claims of fraud, Judge Dolly Gee explained that: although the creators had “vaguely alleged the elements of a fraud claim, they have failed to plead…

The UK’s competition regulator approves Live Nations takeover of the Isle of Wight Festival
Competition , Live Events / October 2017

COMPETITION Live events sector   The UK’s Competition & Markets Authority has approved Live Nation’s acquisition of the Isle of Wight Festival, concluding that the live giant’s latest expansion of its festival portfolio does not raise any competition issues. The deal was concluded through the LNE-Gaiety joint venture between Denis Desmond’s Gaiety and Live Nation. Desmond is also non-executive Chairman of LNE.    Prior to the decision, the UK’s festival trade association, the Association of Independent Festivals (AIF) had written to the Competition and Markets Authority (CMA) urging the CMA to widen its investigation into the acquisition of Isle of Wight Festival to include an inquiry into global promoter’s “position in the [UK] market overall”. AIF published a report that showed that Live Nation either owns or holds a majority stake in nearly a quarter (23%) of all UK events with a capacity of over 5,000. In total, Live Nation controls 28 UK festivals, including eight of Britain’s largest outdoor events (Download, V Festival, Reading/Leeds, Parklife, Creamfields, Lovebox and Wilderness) but  whilst this excludes Glastonbury, it is almost three times more than its nearest competitor, Global, which AIF says has a  8% marketshare. Rival AEG promotes the 65,000 capacity British…

Radiohead stage death trial collapses
Health & Safety , Live Events / October 2017

HEALTH & SAFETY Live events sector   “No doubt, this decision will be incomprehensible to Mr Johnson’s family, who can justifiably complain that justice has not been done”. Judge Ann Nelson   The criminal case and trial against the organisers of Radiohead’s 2012 concert in Toronto where British drum technician Scott Johnson was killed and three others injured when a scaffolding structure collapsed at Downsview Park in June 16th 2012 has ended because of delays in the trial itself, primarily as the original judge hearing the case received a promotion. In July 2017 Justice Shaun Nakatsuru, said that his appointment to the Ontario Superior Court meant he no longer had jurisdiction over the case. Nakatsuru said he came to the decision with “great regret” saying “My appointment was unexpected and without notice. I know that the defendants have waited a long time for the final resolution of this case. So has the public” and “There are many compelling reasons why it would be in the best interests of justice for me to finish this. But I cannot.” The show was promoted by Live Nation, and LNE and its Ontario subsidiary were subsequently charged under the Canadian province’s Occupational Health And Safety Act….

Yoko Ono forces a John Lemon re-brand
Artists , Trade Mark / October 2017

TRADE MARK Artists   John Lennon’s widow, Yoko Ono, has pushed  a Polish beverage company into changing the name of its new lemondade drink which had been called “John Lemon”. The singer-artist’s legal team alleged that the product infringed on Ono’s ‘John Lennon’ trademark and his personality rights. With a Dutch action pending, Mr Lemonade Alternative Drinks agreed to change the name to “On Lemon” after Ono wrote to the company and its distributors across Europe, warning that continued infringement could result in substantial damages which were reported as 5000 euros per day that the drink was on sale, and 500 euros for every bottle sold.    Ono’s attorney, Joris Van Manen, told the East London Advertiser that the lemonade sellers “were abusing and misusing the legacy of John Lennon to sell their soda”. In addition the lawyer cited various promotional efforts by the drinks company that also alluded to the one time Beatle.   The legal action referenced a Facebook post by John Lemon Ireland showing a large wall mural of Lennon holding lemons with the brand’s logo underneath. Other advertising depicted a pair of round glasses, closely linked with the famous Beatle, next to the words “Let It Be.”  …

Foos fight the touts
Consumers , Contract , Live Events / October 2017

CONTRACT / CONSUMER Live events sector   Foo Fighters have risked a PR disaster by turning away fans who had brought tickets for their show at London’s September 19th O2 from secondary re-sellers. Whilst the band  apologised to fans who were turned away from the O2 Arena  buying tickets from the secondary sites they and promoters SJM Concerts said they had made it very clear at the point of sale that each buyer’s name was printed on each ticket for the show and that buyers would be required to show ID to prove it was their name on the ticket before being granted entry.    It was reported that 200 people were turned away at the doors. In a statement, the band said: “The Foo Fighters show that took place at The O2 last night had a strict ‘names on ticket’ policy. The stipulation that ID would be required for admittance to the show was clearly stated at the time of announcement and was explicitly noticed at the point of purchase”. The band added that a number of other measures to ensure that tickets were not resold by touts were also put in place adding “despite these requirements being in place, some purchasers listed…

ZAPPA vs ZAPPA and ZAPPA PLAYS ZAPPA
Artists , Trade Mark / October 2017

TRADE MARK Artistes   What essentially is a trademark dispute has taken on dinosaur proportions due to the participants involved – the children of the late US musician, Frank Zappa, who died on the 4th December 1993.   Zappa Plays Zappa was a tribute band formed in 2006 by Dweezil Zappa, the eldest son of the late Frank; and as the name implies, performs the music of his father.  The Zappa Family Trust (ZFT) managed the late musican’s estate, with his widow Gail Zappa as its Trustee.  On July 26th, 2006 the ZFT filed a trademark registration application with the United Sates Patents and Trademark Office (USPTO) for the name ZAPPA PLAYS ZAPPA and was granted an unopposed registration on May 15, 2007. For nearly a decade, Dweezil Zappa performed under the monicker of Zappa Plays Zappa, playing the music of his late father to audiences worldwide and winning one Grammy in 2009.  So far so good.    In October 2015, Gail Zappa died leaving two of her four children – Ahmet and Diva, the younger siblings, as the Trustees of the ZFT with a share of 30% each, thereby handing control of the Trust over to them.  All four children are beneficiaries,…

Kanye fights on in cancelled tour insurance claim
Insurance , Live Events / October 2017

INSURANCE Live events sector   The dispute between Kanye West and the insurers of his abandoned 2016 ‘St Pablo’ tour continues, and West has now responded to a countersuit filed by the tour’s insurers West’s $10 million insurance claim was made when he prematurely ended his US tour last November after ‘erratic behaviour’. He was subsequently admitted to the UCLA Neuropsychiatric Hospital Center, with one news agency sating at the time that this was “for his own health and safety”. West sued his insurers at the beginning of August 2017. West claimed that he ended his 2016 tour early on the advice of doctors, and therefore the insurance policy must cover the losses incurred by West and his company Very Good Touring. The lawsuit also alleged that Lloyd’s fed confidential information about West to news outlets, and states that the insurers’ own selected doctor asserted that West’s mental condition was “disabling” enough to prevent him from continuing the tour.   The insurers countersued, accusing West of not fully co-operating with their investigation into the circumstances around the ‘St Pablo’ cancellation. The Lloyds of London insurers also alleged that there were “substantial irregularities in Mr West’s medical history In the lawsuit.”  An independent…