US appellate court upholds fractional licensing
Copyright , Music Publishing / February 2018

COPYRIGHT Music publishers, broadcasting   Songwriters and music publishers in America have welcomed an appeal court that has dismissed the Department of Justice move to introduce “100% licensing”, confirming the current system that the so called “fractional licensing” system for co-written songs with different publishers (and sometimes multiple collection societies with a ‘fraction’ of the song). With collaborating writers free to choose from four different societies in the US (BMI, ASCAP, GMR and SESAC) a third party wishing to broadcast or perform that work must still be licensed by ALL relevant  societies, and pay royalties to each, pro-rata according to what percentage it controls. The US Department Of Justice had different ideas, and having reviewed the consent decrees that govern BMI and ASCAP moved to force the two big American collecting societies to operate a so called ‘100% licensing system’ with any society able to offer a ‘100%’ licence,  a one stop shop for customers, provided the licensing PRO then passed on the relevant share(s) to other societies who owned a fraction of the work.  In September 2016 Judge Louis L Stanton (who oversees the BMI consent decree) ruled that the DoJ had been wrong to infer a 100% licensing obligation…

Eminen-esque to be appealed in New Zealand
Copyright , Music Publishing / February 2018

COPYRIGHT Recorded music, music publishing   In October 2016, New Zealand’s High Court ruled that the National Party had infringed on singer Eminem’s copyright in Lose Yourself  and awarded the rapper’s publisher NZ$600,000 (£315,000) in damages, saying that the political party’s use of a track titled ‘Eminem Esque‘ that was “sufficiently similar” to Eminem’s original song was infringement, noting that Lose Yourself was a “highly original work” and the “soundalike” version substantially copied it. Lose Yourself’ was composed by Marshall Mathers III (Eminem), Jeffrey Bass and Luis Resto (Eight Mile Style) in 2002. The court said: The differences between the two works are minimal; the close similarities and the indiscernible differences in drum beat, the ‘melodic line’ and the piano figures make Eminem Esque strikingly similar to Lose Yourself. Eminem Esque substantially reproduces the essence of Lose Yourself. The parts of Eminem Esque used in the National party’s campaign advertisements also substantially reproduce Lose Yourself.”   Now the two United States publishing companies that control and administer copyright for Eminem’s award-winning rap hit, Lose Yourself, are asking to have the award of damages increased. The advert was widely shared, but National Party is seeking a lower figure, saying Justice Helen Cull was wrong to accept evidence that the internet availability…

Music Modernization Act launched in the US
Copyright , Music Publishing / February 2018

COPYRIGHT Music publishing   Two US Congressmen have launched a proposed new statute that has the support of both music owners and music users in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries say that the Music Modernization Act would “bring music licensing its first meaningful update in almost 20 years”. With no collecting society offering a blanket licence covering the so called ‘mechanical rights’ in songs, music users must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law. Its not easy – the streaming platforms, which concurrently exploit both the performing right and mechanical right elements of the song copyright. Last May, Spotify came to a proposed $43 million settlement to resolve a class action from songwriters led by David Lowery and Melissa Ferrick. The plaintiffs in that case had alleged that Spotify hasn’t adequately paid mechanical licenses for song compositions. In July, Spotify was hit with two lawsuits, including one from Bob Gaudio, a songwriter and founding member of the group Frankie Valli and the Four Seasons. Now Spotify has been hit with a $1.6 Billion…

New UK anti-bot ticketing legislation
Competition , Live Events / February 2018

COMPETITION / CONSUMER Live events sector   The UK Government has unveiled new legislation aimed at preventing ticket touts from using so called ‘bots’ to bulk buy tickets. The new measure will be a new criminal offence contained in the Digital Economy Act, and touts who use automated software to harvest tickets to sell on at inflated prices, in effect circumventing limits on maximum ticket purchases set by event organisers and vars on the subsequent re-sale of tickets, will face unlimited fines. Matt Hancock, the UK’s minister for the creative industries, said: “We’re determined to make sure 2018 is the year we help real fans get the chance to see their favourite music and sports stars at a fair price. We’ll be acting to stamp out the growing problem of touts misusing technology to scoop up vast numbers of tickets only to sell them on at rip-off prices” adding “Our work, together with improvements by industry, will help make the market more transparent and mean a great year for Britain’s thriving live events scene.” The UK Government has now notified the European Commission of its plans to take forward the proposals, a move that comes as part of a crackdown to tackle misuse of…

Is there a lawsuit creeping up on us?
Copyright , Music Publishing / February 2018

COPYRIGHT Recorded music, music publishing   For perhaps the first time this year it appears there may, or may not, be a Blurred Lines effect case on the horizons.     Lana Del Rey recently tweeted: “it’s true about the lawsuit. Although I know my song wasn’t inspired by ‘Creep’, Radiohead feel it was and want 100% of the publishing. I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court”.” Whilst many took this to mean a lawsuit had been filed by Radiohead’s lawyers, that isn’t quite the full picture.   First a bit of background and in short the dispute revolves around Radiohead claiming that Del Rey lifted aspects of Radiohead’s ‘Creep’ and placed it in her song ‘Get Free’.  If you listen to the two you may feel the same. You may not!   It was alleged by Del Rey that she was being sued and that Radiohead’s lawyers were demanding 100% of the publishing rights to Del Rey’s song. However, in a twist, Warner/ Chappell, Radiohead’s music publisher have stated that there is no lawsuit and the company has not asked for…

Kid Rock’s tour NOT the Greatest Show on Earth
Live Events , Trade Mark / February 2018

TRADE MARK Live events sector   Feld Entertainment, the owner of circus company Ringling Bros, has forced Kid Rock and promoter Live Nation to change the name of a tour. It’s all over an alleged trademark infringement with the Kid Rock tour due to start on the 19th January and billed as the Greatest Show on Earth tour. Feld claims the tour, dilutes and infringes on its “famous trademark”, ‘The Greatest Show on Earth’.  Feld Entertainment, Inc. et al v. Ritchie et al, was filed in the US District Court for Middle Florida and seeks to force Kid Rock (Robert James Richie) and promoter Live Nation to change the name of the tour and turn over any revenue from merchandise featuring the disputed slogan, as well as additional unspecified damages. The name change has now happened – the tour was re-branded the American Rock ’n Roll tour According to Feld’s general counsel, Lisa Joiner, the company took the decision to go to the courts after “repeatedly contact[ing] defendants to obtain their cooperation to stop the infringement and [being] ignored”. “We have authorised licensees for Ringling Bros and The Greatest Show On Earth, but Kid Rock is not one of them,” she adds. “This historic…

UK adopts ‘against of change’ to protect music venues
Live Events / February 2018

PLANNING Live events sector   On the back of a private members bill which almost certainly failed to have reached the statute books, the UK government has agreed is to write the “agent-of-change” principle into planning law, in an announcement welcomed as a “seismic victory” for music venues by UK Music chief executuve Michael Dugher. Its a major triumph for the live sector and Secretary of State for Communities and Local Government Sajid Javid MP confirmed that the National Planning Policy Framework, with which local authorities are legally bound to comply, will be amended to include “detailed reference” to agent of change, making housing developers building new homes near exisiting UK venues responsible for addressing noise issues. Javid said: “Music venues play a vital role in our communities, bringing people together and contributing to the local economy and supporting the country’s grassroots music culture. I have always thought it unfair that the burden is on long-standing music venues to solve noise issues when property developers choose to build nearby. That’s why I consulted on this in February last year as part of the housing white paper” adding “I am pleased to finally have an opportunity to right this wrong and also…

Sir Paul backs the ‘agent of change’ law
Licensing , Live Events / February 2018

PLANNING / LICENSING Live events sector   Artists and music industry leaders joined politicians in Westminster to support the ‘agent of change’ principle as John Spellar MP presented his bill to Parliament in a legislative move which if successful would change UK planning law so that property developers putting new residential buildings close to existing music venues would be responsible for identifying and resolving any future sound issues. This agent of change proposals, which attracted a message of support from Sir Paul McCartney, aims to ensure that music venues are protected from new arrivals who move into an area. The former Beatle was joined by Brian Eno, Pink Floyd’s Nick Mason, The Kinks’ Ray Davies in backing a plan to stop the closure of grassroots venues after more than a third were said to have closed in the past decade, according to research by UK Music. In his speech to Parliament Spellar said: “I accept that there is a variety of reasons for the decline in venues, but many relate to changes in the neighbourhood, increasingly when redundant commercial or industrial premises are converted to residential, or are knocked down and rebuilt, or as empty sites are developed” adding “Of course, much of that…

Live Nation settles damaging ‘Songkick’ litigation
Competition , Live Events / February 2018

COMPETITION Live events sector   Live Nation has announced that it had come to a settlement agreement with Complete Entertainment Resources Group, Inc in the ‘Songkick’ saga.  The Songkick owners have accepted a settlement  before the case was due in court on the 24th of this month in what had looked like a fascinating case, and a ‘warts and all’ exploration of the live giant’s business methods. The settlement headlines are that Songkick have accepted the offer of $110 million and the purchase of Songkick assets for an undisclosed sum.  Songkick, which offered both a music discovery app and a fan club ticketing platform, sued Live Nation alleging anti-competitive practices and illegal access to proprietary company information in federal court, in particular Songkick’s software programme which offered a fan base sales platform and on which Ticketmaster’s “Verified Fan” programme allegedly based. The core of the case centered around a former Crowdsurge employee who allegedly used access to the company’s system to provide confidential information to Ticketmaster’s top executives on their competitor. As details of the case began to become public, evidence submitted by Songkick’s legal team was used to support the theory that Ticketmaster took the threat posed by the Songkick/Crowdsurge model very seriously indeed,…

YouTube adopts ISNI to help allocate payments
Copyright , Internet , Music Publishing / February 2018

COPYRIGHT Internet, recorded music, music publishing   YouTube is to begin issuing International Standard Name Identifier  (ISNI) numbers to creators. The platform has become a registration agency which means it will now start requesting and issuing ISNI codes from and to any creators who publish content, including musicians and songwriters in a move which should help with attribution and royalty payments. ISNI numbers can cover “researchers, inventors, writers, artists, visual creators, performers, producers, publishers, aggregators, and more”. YouTube will use the ISNI code to identify musicians and songwriters on its platform, allocating numbers to those who don’t already have one. It also plans to share those codes with any one creator’s business partners, such as record labels and music publishers, to encourage wider adoption of the identifier system. YouTube’s Technical Program Manager FX Nuttall said “By adopting ISNI, artists, songwriters and other creators will be unambiguously identified, enabling better visibility and tracking on YouTube. Bringing the ISNI open standard to music opens the door to more accurate credit for creators, discovery for fans, and transparency for the industry”. The ISNI International Agency’s Executive Director Tim Devenport said: “We’re delighted to partner with YouTube on such an ambitious effort. Many organisations active in the…

Enrique Iglesias takes legal action against Universal Music Group for “missing” millions in streaming royalties
Contract , Copyright / February 2018

CONTRACT / COPYRIGHT Recorded music   Enrique Iglesias has taken legal action against Universal Music Group in the US to claw back an alleged “shortfall of millions of dollars” in streaming royalties. The lawsuit, filed in Miami relies on the accusation that Universal failed to assign a royalty rate for streaming in two contracts with Iglesias: one signed in May 1999 with Interscope in tandem with Universal’s global company, plus an additional contract signed in May 2010. Recording contracts usually provide artists with a percentage share of any money their recordings generate. However, the percentage paid to the artist often varies according to how the money is generated. A traditional distinction was between sales income (eg selling CDs and downloads) and licence income (eg synch deals). A common royalty on the former was 15%, while on the latter it would be 50% of net income (although the definition of net income in itself can be a battle.  Iglesias’s legal team say that Universal should be paying 50% of net receipts from services such as Spotify, YouTube, Apple Music and Pandora. UMG have (predictably) been paying a rate based on specified rate agreed for (sometimes) downloads and physical album sales – a significantly…

Georgia’s music tax incentives are now law
Music Publishing , Taxation / February 2018

TAXATION Live events sector, recorded music, music publishing, video games   The first-ever tax incentive for Georgia’s music industry, the Georgia Music Investment Act is now in effect The legislation is the result of the Recording Academy Atlanta Chapter and Georgia Music Partners’ joint advocacy efforts for over seven years to enact the first-ever targeted incentive specifically for music in Georgia, designed to reward investment in the music industry through a refundable tax credit. Supporters argue that the incentive will create jobs in music for musicians, logistics consultants, caterers, lawyers, accountants, engineers, producers, stage designers, lighting designers, managers, promoters and booking agents and could created thousands of new jobs in Georgia, following on from the success of Georgia’s film tax credit. Billboard reports that Georgia has a rich musical heritage and has been the home of globally recognised artists inclusdingg  Ray Charles, James Brown, the Allman Brothers, REM, the B-52s, Alan Jackson, Usher, OutKast, Ludacris and many others. Georgia also boasts world class recording facilities and 48 music training and education programs and 15 professional orchestras. The Act, signed into law by Governor Nathan Deal, provides a 15% refundable tax credit granted for the following in-state expenditures: * Musical Recording: An artist, record label or other…

Ticketmaster faces Canadian action against over hidden price hikes
Competition , Consumers , Live Events / February 2018

CONSUMER / COMPETITION Live events sector   Live Nation’s Ticketmaster is facing legal action from Canada’s Competition Bureau, which has announced that it is taking action against the entertainment giant for allegedly misleading consumers on the pricing for sports and other ticketed events after an investigation found that advertised prices were deceptive because consumers would be forced to pay additional fees which are added later in the purchasing process, which is referred to as “drip pricing.” An investigation found that Ticketmaster’s fees often inflated the prices of a ticket by more than 20 percent, although in some instances this went up to 65 percent of the price consumers pay. The Competition Bureau has requested the Competition Tribunal put an end to the deceptive marketing practices and subject the Live Nation-owned company to a financial penalty. Commissioner of Competition John Pecman said in a statement: “In July, we called on ticket vendors to review their marketing practices. Today, we are filing an application with the [Competition] Tribunal to stop Ticketmaster from making deceptive claims to consumers” adding “Together, these actions send a strong signal to online retailers: consumers must have confidence that advertised prices are the ones they will pay.”  In response, Ticketmaster issued a…

Two cases on either side of the pond puts equality in the spotlight
Live Events / February 2018

EQUALITY Live events sector    Female comedian Iliza Shlesinger is being sued in the US by a male patron who was turned away from her “Girls’ Night In with Iliza – No Boys Allowed” comedy show in Los Angeles. George St. George says he and a friend bought tickets to the show on November 13th through the Largo website. They arrived at the will-call window early, and were given their tickets but told they would need to sit in the back. After returning after a drink they were then told that Shlesinger and the theatre had decided not to allow entry because it was, as advertised, a women-only show, and that they would be refunded for their tickets. The event page on the Largo website says “Iliza is bringing her girls invited only show back to Los Angeles “Girls’ Night In is a hybrid stand up show and interactive discussion between Iliza and the women in the audience aimed at giving women a place to vent in a supportive, fun and inclusive environment. She invites women of all walks of life to come, laugh with her and at her and be ready to share and feel safe for an awesome night of…

Are YouTube gagging artists in the copyright debate?
Censorship , Copyright , Internet / February 2018

COPYRIGHT / CENSORSHIP Internet   Hot on the heels of a report by Bloomberg that YouTube had asked musicians to agree not to disparage the streaming-video service in exchange for promotional support as a way to silencing criticism by artists, the Content Creators Coalition (C3) has urged Congress to investigate the so called  ‘non-disparagement agreements’. YouTube meanwhile is trying to stem the damage, and has played down reports that it includes non-disparagement agreements in contracts with some artists which would prevent those musicians from criticising the Google platform – although the company admits that a small number of current agreements tied to original content and/or promotional work may include “general language around conduct”. US artist-led lobbying group C3 has called on the Judiciary Committees to investigate the non-disparagement clauses in partnership agreements. In its report, Bloomberg conceded that such terms “are common in business”, but noted that it seemed only YouTube had extended the the music streaming marketplace. In a letter to the chairs of the Congressional Judiciary Committees in both the Senate and the House Of Representatives, C3 argues these clauses are “clearly aimed at thwarting the Congressional review of the Digital Millennium Copyright Act’s [provisions for] ‘safe harbor’ as well as the…