|FRIDAY 1 MARCH 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: American collecting societies BMI and ASCAP have published a wish list as the US Department Of Justice prepares to once again consider the so called consent decrees that regulate the two performing rights organisations... [READ MORE]|
BMI and ASCAP outline wish list as yet another consent decree review begins
When the US music community was lobbying hard for the "once in a generation" copyright reforms contained in last year's Music Modernization Act, at a session during MIDEM we identified five ways in which the American copyright system is weird from a European perspective.
The MMA actually only addresses three of these peculiarities: the lack of a mechanical rights society, the rate courts and royalty board, and the always confusing pre-1972 thing. That AM/FM radio stations pay no royalties to the record industry and the draconian consent decrees that regulate BMI and ASCAP were not part of the reforms. But the latter could now be addressed anyway. And lobbying on the former also continues.
Collective licensing - where large groups of rights owners license their repertoires together - causes monopoly concerns all over the world. Some copyright systems embrace and/or force a monopoly. Others regulate collective licensing in one way or another to overcome any competition law issues.
In the US, some of that regulation comes from these consent decrees and they include some of the most severe regulation in the world. Even though there are four societies representing the performing rights of songs in America (ie smaller organisations SESAC and GMR in addition to BMI and ASCAP), whereas is many countries there is just one. Plus the US societies, unlike their counterparts in much of the rest of the world, don't enjoy any exclusive rights. There is nothing to stop a rights owner and licensee negotiating a deal that cuts the society out.
The consent decrees are also very old and the music industry has long argued that they are no longer fit for purpose. But when the DoJ last reviewed them in 2016 it concluded that the regulatory documents were all good as they are. However, it seems that the government agency is now planning another review, with the Wall Street Journal reporting earlier this week that a public consultation is about to begin.
With that in mind, yesterday the bosses of BMI and ASCAP - Mike O'Neill and Elizabeth Matthews respectively - published an open letter presented their united position on consent decree reform. Welcoming that another review is now on the agenda, they write: "The DOJ's attention to this matter represents a clear opportunity to do what BMI and ASCAP have been trying to do for years - modernise music licensing to better reflect the transformative changes in the industry".
"It's why", they go on, "when we first heard about the possibility of the DoJ sunsetting the consent decrees, it came as welcome news. We believe that a free market with less government regulation is hands down the best way for music creators to be rewarded for their hard work and intellectual property. A free market would create a more productive, efficient and level playing field for everyone involved. Competition is a good thing".
But, they add, the consent decrees have been in place for nearly 80 years and just abandoning them overnight could cause chaos, which no one wants. Which is why the two societies are "recommending the DoJ replace the current BMI and ASCAP consent decrees with newly formed decrees that would protect all parties. Like all modern consent decrees, they would also include a sunset provision".
O'Neill and Matthews have four key priorities for any new consent decrees. First, they think all music users that need to exploit the performing rights in songs should still be able to automatically access a society licence, but with "a fairer, more efficient, less costly and automatic mechanism for the payment of interim fees". Secondly, the rate courts that oversee the two societies' licensing deals should remain, but with the existing reforms contained in the aforementioned MMA, which the music industry hopes will result in those courts generally setting higher rates.
Thirdly, BMI and ASCAP members should still be able to do their own deals outside the collective licensing system. And finally, the new consent decrees should "preserve the current forms of licences that the industry has grown accustomed to beyond the traditional blanket license, such as the adjustable fee blanket license and the per-programme license". So, basically, business of usual, but without all the annoying bits of the current consent decrees.
Last time the DoJ reviewed its regulation of BMI and ASCAP, not only did it decide not to change anything, it made a statement about so called 100% licensing that sent everyone in the music publishing sector into a frenzy until the rate courts eventually overturned said statement. Under pressure from music users, the DoJ had declared that, where a BMI or ASCAP member only controls part of a song copyright, a BMI or ASCAP licence should nevertheless allow a licensee to use the song without securing any licences from the other co-owners.
Aware that any new review could result in other changes or clarifications that go against the music industry's wishes, O'Neill and Matthews added: "As we've seen over the years, some organisations will try to use this moment and BMI's and ASCAP's consent decrees to serve their own interests at the expense of the songwriter. Old and new issues could come into play, such as 100% licensing, or, even more concerning, a push in Congress by music users to create a compulsory licensing model".
Applying compulsory licensing to the BMI and ASCAP repertoires would, they reckon, "take us backwards, not forward, creating a system in which the government - not the market - would determine the value of songwriters' work. It could also have dire consequences for other creative industries. In fact, we see no scenario in which more government regulation of this industry would benefit anyone".
So, the message is, don't go reviewing the consent decrees in a way that would increase the regulation. Or question the relevancy of collective licensing and collecting societies entirely.
"A vibrant PRO system is important to maintain the balance of the industry", they insist. "Simply put, BMI and ASCAP offer an essential layer of protection for creators, from helping them through the early stages of their careers, to tracking and paying on performances across all mediums, and advocating for their rights on Capitol Hill. All of this helps keep the music flowing and enables licensees to play the world's best music today, as well as the hits that will be created in the future".
So, there you go, BMI and ASCAP's position is known. If a full-on consent decree review is now imminent, we look forward to seeing what wish lists the broadcasters, tech firms and live sector come forward with.
Miley Cyrus criticises magistrate judge's recommendation in song-theft case
This lawsuit is being pursued by Jamaican dancehall artist Flourgon, real name Michael May. He sued Cyrus in March last year claiming that her 2013 single 'We Can't Stop' infringes his 1998 track 'We Run Things'. The dispute centres on a single lyric, with May arguing that Cyrus and her songwriting pals lifted his line "we run things, things no run we" and tweaked it to go: "we run things, things don't run we".
Lawyers for Cyrus and co responded with at least three arguments as to why they felt that May's copyright claim was invalid: ie that a single lyric isn't protected by copyright, that Cyrus's use of it was 'fair use', and that May's lyric in 'We Run Things' isn't in itself original.
But last month, magistrate judge Robert Lehrburger said that, while the arguments presented by the Cyrus side were compelling, he felt that May's case still needed to go before a jury and could therefore not be dismissed on summary judgement.
Lehrburger was only making a recommendation on the dispute, which district judge Lewis Kaplan can choose to follow or ignore. Both sides have an opportunity to respond to the magistrate judge's report first, which is why Team Cyrus have been dissing his conclusions this week.
According to Law 360, a legal filing from the Cryus side argues that Lehrburger initially noted that the two songs are "substantially different", but then narrowed his focus to the single shared lyric. But, they argue, "simply listening to the songs mandates the conclusion that plaintiff's 'Run' and defendants' 'Stop' are not substantially similar as a matter of law under any applicable test".
We await to see how judge Kaplan responds.
Ludovico Einaudi renews Decca deal, announces seven album releases in 2019
"Ludovico Einaudi is without doubt one of the most innovative and inspiring artists that our label has the privilege to work alongside", says Decca President Rebecca Allen. "His music connects in a way that unites audiences around the world. We feel truly blessed that our partnership continues to grow and we can further support the unique vision of this utterly brilliant artist".
Universal's Global Classics & Jazz CEO Dickon Stainer adds: "Ludovico Einaudi is an artist with a uniquely global footprint whose music continues to draw a dedicated and dynamic audience. We are THRILLED and honoured to extend our relationship with him throughout the world".
Now, what about these seven albums? Themed around a week spent walking, the series has been cunningly titled 'Seven Days Walking'. The first in the series, the even more cunningly titled 'Seven Days Walking: Day One', will be released on 15 Mar. Six further albums will follow each month until there are no more left. No more albums, I mean. There should still be some months left. And days. And walks. Fingers crossed, anyway.
"In January last year I often went for long walks in the mountains, always following more or less the same trail", says Einaudi of the inspiration for the project. "It snowed heavily, and my thoughts roamed free inside the storm, where all shapes, stripped bare by the cold, lost their contours and colours. Perhaps that feeling of extreme essence was the origin of this album".
The first of the albums - all of which were recorded last year at Schloss Elmau in Germany and London's Air Studios - introduces various themes that will re-emerge in later releases. The musician explains: "In the end I decided to thread them all together in a sort of musical labyrinth, a little like stepping inside the twists and turns of the creative process, to understand how a musical idea can develop in multiple directions, and changing once again at the moment in which it is heard".
Einaudi is set to play two sold out shows at Union Chapel in London on 28 and 29 Mar, with further UK dates set to be announced in the near future. The first single from 'Day One' - 'Cold Wind' - is out now. Here's a trailer.
Tencent and KKR expected to bid for a slice of Universal Music
After much speculation, French conglom Vivendi confirmed last July that it was interested in selling up to 50% of Universal Music. There has been much chatter ever since about possible bidders, with Vivendi's bankers due to open formal talks with interested parties later this month. But sources have told Reuters that both Tencent and KKR are definitely interested.
Now that Chinese tech giant Tencent has spun off its music division as a standalone entity, a number of strategic acquisitions are expected to follow. Taking a significant share of the world's biggest music rights company would be quite a statement of intent, though Reuters' sources say that Vivendi is more interested in a silent partner that wouldn't want to be so actively involved in setting Universal's strategic direction, which might not work for Tencent.
An investment fund like KKR would make more sense if that's what Vivendi desires. KKR was Bertlesmann's partner when it launched the v2 BMG company back in 2009 and it that scenario it was happy to allow its business partners, with their expertise in media and entertainment, to appoint the joint venture's management team.
As talks of the equity sale escalate, there has been much speculation and hype about the possible valuation of the Universal music business, which includes the world's biggest record company, second biggest music publisher and merchandise powerhouse Bravado. Vivendi hopes that, with streaming continuing to boom and the major labels being massive beneficiaries of said boom, Universal Music's valuation can continue to be hyped up high.
Though savvy investors will be aware of the slow shift in the balance of power between the major music companies and the few dominant streaming firms on which they are now incredibly reliant. Each time a streaming deal comes up for renewal, services like Spotify drive harder bargains. Though optimists at the labels hope that there will be enough other serious players in streaming long-term - like Apple, Amazon and some key regional services - to even things out at the negotiating table.
Then there's also the fact that label and especially publishing contracts have been slowly skewing in favour of artists and songwriters over the years, so that the majors' control over newer catalogues is not as wide-ranging as with music released in the 1960s, 1970s and 1980s. Meanwhile, important lawsuits testing the termination right in US copyright law could as yet reduce the majors' control over older songs and recordings in the all-important American market.
Still, big numbers are being thrown around, with Reuters reckoning that Vivendi could get around $23 billion for half of the Universal music company. Which would be nice. For them.
RIAA boss celebrates "rising excitement and optimism" as US recorded music revenues grow again
"There is reason for buoyed optimism among those who help create music", says RIAA CEO Mitch Glazier alongside his organisation's 2018 stats pack. "Recognising that there is more work to do, labels remain focused on building an ecosystem where every responsible player does its part to ensure that innovation continues to thrive, fans continue to be connected and engaged, and everyone is paid fairly for their work".
In 2018, US recorded music revenues increased by a whole billion dollars, to $9.8 billion. That - the trade body is keen to point out - is less than a billion dollars away from the amount of money coming in to the US record industry back in 2007. You all remember 2007, right, when everyone was really happy with the amount of money recorded music was generating? Such happy times.
The boost last year was largely - basically entirely - down to streaming, with revenues from these digital platforms increasing 30% year-on-year to $7.4 billion. That means streaming revenues now account for 75% of all recorded music income in the US.
Obviously entirely positive, that would all only be of concern if you happen to think that having one entire industry (the record industry) propped up by another (the streaming business) that is best known for making consistent losses is somehow worrying. And who thinks that? Not me. Didn't you hear that Spotify is profitable now. Well, it was in one quarter last year. Sort of by accident. An achievement published alongside a prediction of more losses in 2019. But still!
Adoption of much more lucrative paid-for streaming is on the up, though. There was a 42% increase in 2018, up to 50.2 million paying subscribers from 35.3 million in 2017. And that is positive - streaming is a numbers game after all and if the services are ever to start turning a profit there needs to be lots of people willing to pay for it.
We shouldn't entirely dismiss ad-funded streaming, mind. Revenues from free services, including YouTube, were up 15% in the US last year too. It's still much less lucrative than the paid-for services though, bringing in just $760 million. That's 8% of revenues from services that account for around a third of all streams.
Although Glazier was very upbeat in his statement announcing the stats report, he did take time to put in a veiled dig at YouTube and also the continued problem of stream-ripping, which some also see as partly YouTube's fault.
"Stream-ripping, and a lack of accountability for many big tech companies that drive down the value of music, remain serious threats as the industry strives for additional growth", he says. But, he adds, having noted that investment in new artists at the major labels is up dramatically: "You can feel rising excitement and optimism within the halls of the record labels, and it's a moment worth celebrating".
Alright, you can pull one party popper, then get back to work. You can also read the full report here.
James Ford named UK Producer Of The Year at MPG Awards
The MPG's Producer Of The Year prize used to double up as a BRIT Award, but that partnership has now ended. The BRITs handed its big producer prize to Calvin Harris, so that they'd have someone sufficiently famous to warrant an appearance on the show's big TV broadcast. In the words of host Jack Whitehall, it was "an award we normally bury in a commercial break ... but this year the winner's famous!" So, good to know everyone's hard work behind the scenes is so highly valued by the wider music industry.
Of course, these days you can make a perfectly good album on an iPhone in your bedroom. Or so I'm repeatedly told by relatives every Christmas. Of the various artist awards presented last night, Jon Hopkins correctly took home the Self-Producing Artist Of The Year award. I'm not sure he even has an iPhone, to be honest. And, now you mention it, I've never been in his bedroom. I want to put a stop to those rumours right now.
Among the other big prizes handed out, Rockfield Studios co-founder Kingsley Ward and his family received a Special Recognition Award. Set up in 1965, Rockfield was the world's first residential studio, providing bands with the opportunity to go out into the middle of nowhere - Monmouthshire, in this case - and just get on with it.
Here's the full list of winners:
UK Producer Of The Year: James Ford
Recording Engineer Of The Year: Matt Wiggins
UK Album Of The Year: Everything Everything - A Fever Dream
The A&R Award: Gilles Peterson
Ryan Adams, Japanese Breakfast, The Jonas Brothers, more
Other notable announcements and developments today...
• Ryan Adams was reportedly dropped as headliner of this year's BBC Radio 6 Music Festival at the last minute, before the line-up was announced. This follows allegations of sexual harassment and abuse made against the musician by a number of women. Ticketholders for his upcoming UK shows, which are currently still scheduled to go ahead, have also been demanding refunds in the wake of those accusations.
• Michelle Zauner - aka Japanese Breakfast - is to publish a memoir, titled 'Crying In H Mart', based on a New Yorker article of the same name published last year. The release date has not yet been announced.
• The Jonas Brothers have reunited and made some new music. The press release says they're "arguably the definitive pop group of the 21st Century". Is that in any way true? Don't write in, I don't care. Here's new song 'Sucker'.
• Solange has released her new album 'When I Get Home', after a week of hinting that something was on the way. It features appearances from Tyler The Creator, Gucci Mane, Panda Bear, Metro Boomin, Earl Sweatshirt, Dev Hynes and more.
• Ellie Goulding has released new single 'Flux', as she builds up to the release of her fourth album later this year.
• Gesaffelstein and Pharrell Williams have released new track 'Blast Off'.
• Four Tet is back with new single 'Only Human'.
• Lee 'Scratch' Perry will release new album 'Rainford' on 10 May. Says producer Adrian Sherwood: "It's the most intimate album Lee has ever made, but at the same time the musical ideas are very fresh. I'm extremely proud of what we've come up as a piece of work". From it, this is 'African Starship'.
• Marina has released new track, 'Superstar'. Her new album, 'Love + Fear', is out on 26 Apr.
• Anna Burch has released new single, 'St Adalbert'. The track actually pre-dates her debut album, 'Quit The Curse'. "It was my call not to include 'St Adalbert' on the record, partly because it was such an early effort and the feel was quite different from the others", she says. "But it also had an emotional weight that I didn't feel totally comfortable with at the time".
• Eivør has released a new live version of her track, 'Trøllabundin'. "The live show is my thing, and the songs truly come alive to me when I can reflect them back to an audience", she says.
• Stella Donnelly has released new song 'Tricks'. Her debut album, 'Beware Of The Dog', is out a week today.
• Pixx will release her new album, 'Small Mercies', on 7 Jun. From it, this is new single 'Disgrace'.
• Pozi will release their debut album, 'PZ1', on 5 Apr. From it, this is 'Watching You Suffer'.
• L7 will release their first album for 20 years, 'Scatter The Rats', on 3 May. Here's new single 'Burn Baby'.
• The National have announce five "unique events" in Paris, New York, London, Toronto and LA in April. The London one will take place at the Royal Festival Hall on 18 Apr.
• Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Diplo makes appearance in new Pokémon movie
The producer makes a blink-and-you'll-miss-it appearance in the new trailer for the film, due out in May. Some people clearly didn't blink, because they noticed. Also, Diplo tweeted about it, which really helped.
"Playing myself in the Pokémon detective movie is the first time my kids have ever thought I'm cool", he wrote. He then also agreed with someone who said that this project probably constitutes the very peak of his career.
You can watch the trailer here. Unless you're not really interested, in which case probably don't bother.