|WEDNESDAY 13 MARCH 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The National Music Publishers Association in the US has released its promised response to Spotify's blog post about the ongoing mechanical royalty rate spat. The music industry group accuses the streaming firm of trying to distract songwriters with misleading technicalities to obscure the fact it just doesn't want to pay them any more money... [READ MORE]|
NMPA responds to Spotify's "spin" and "falsehoods" in mechanical royalties spat
Spotify, Amazon, Google and Pandora are all appealing the US Copyright Royalty Board's recent decision regarding what rate streaming services should pay to music publishers and songwriters under the compulsory licence that covers mechanical rights Stateside. The CRB ruled that the top line revenue share rate should ultimately increase from 10.5% to 15.1%.
In many other countries streaming services secure licences covering the song rights they exploit by negotiating deals directly with music publishers and collecting societies. I
In the decade that on-demand streaming has been properly up and running, the revenue share rate secured under those deals has generally increased, with some publishers already on a 15% revenue share. So arguably the CRB ruling simply brings the compulsory licence rates in line with those secured elsewhere on the open market.
Perhaps with that in mind, Spotify insisted in a blog post on Monday that - although it is appealing the CRB's decision - it doesn't object to the overall increase in revenues allocated to the song rights. But, it said, it had problems with other elements of the CRB amended compulsory licence, such as the fact it doesn't include video or lyric rights, and it doesn't offer any flexibility for when it bundles its music services in with other products.
The NMPA, which has been scathing of Spotify's decision to appeal the CRB decision, is similarly scathing about the streaming firm's blog post. In its response yesterday, the trade group said that Spotify's appeal was about reducing or eliminating the royalty rate increase for songwriters. "Everything else", it added, "including Spotify's attempt to describe its filing as 'clarifying elements' of a ruling, is misleading spin".
Countering Spotify's insistence that it basically supported the rate increase to 15.1%, the NMPA points out that that's not what the streaming service said during the hearings that preceded the CRB's ruling. It writes: "Spotify actually proposed a reduction from the old rates. If Spotify thinks songwriters deserve to be paid more, and it's just a question of by how much and how best to achieve that goal, why did it propose to the CRB to cut what songwriters earn?"
"Spotify claims songwriters deserve to be paid more", the NMPA's missive goes on, "but Spotify fought in the CRB to cut rates, and now Spotify is fighting in an appeal to prevent the rate increase ordered by the CRB. Spotify should understand that actions speak louder than words. There is no way to spin this, Spotify".
The streaming firm's argument that its main concern is that the 15.1% rate doesn't include video and lyric rights is just a distraction tactic, the NMPA then argues, because those rights aren't covered by the compulsory licence for which the CRB sets the rates. Which is true.
Though the compulsory licence doesn't cover the performing rights in songs either, which streaming services exploit alongside the mechanical rights. However, the compulsory licence recognises that fact and basically deducts royalties paid elsewhere for the performing rights from the 15.1% figure. Presumably Spotify would like it to do something similar for the other uses of the song rights that streaming service's must secure licences for.
But, says the NMPA, "if Spotify wants the video and lyric rights of songwriters, Spotify knows it has to negotiate for those rights in a free market, on top of the [compulsory licence] rate. What Spotify is saying is that it doesn't want to pay any more for your lyric or video rights, even though every other digital service must do just that. No one should be fooled by this smokescreen".
As for seeking flexibility on bundles, the NMPA argues that what Spotify is arguing for could allow the streaming firm to bundle its service with other products, put the value of the music in those bundles at zero, and then pay songwriters and publishers 15.1% of zero. Which isn't what Spotify is proposing, but streaming services reducing the average income per user through offers and bundles - and the impact that can have on royalty payments - has been a big talking point among music rights owners in recent years.
Concluding, the NMPA's blog response confirms what we already knew, that the publisher group plans to be forthright and outspoken in its battle against those streaming firms seeking to appeal the CRB ruling, and Spotify in particular. It concludes: "What can we expect from Spotify? We can expect them to attack songwriters to cut what it pays them, and then try to deceive you about what it is doing. Yes - Spotify's mission is clear. And for songwriters, and those who care about songwriters, our mission is clear too. This fight has just started".
Fashion firm hits back at Nirvana's lawsuit over grunge clothing range
Last year's grungy clothing line from the Marc Jacobs fashion business included t-shirts bearing a version of the wobbly smiley face image that was a staple of Nirvana's merch back in the band's hey-day. The company that now controls Nirvana's intellectual property rights then sued in December, accusing Jacobs of infringing the band's copyright in the image.
Responding to said litigation, Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that - while its happy face t-shirts are clearly influenced by the iconic Nirvana merch from back in the day - the imagery on its garments is sufficiently different to not constitute copyright infringement.
Also, its products don't include the text - "flower-sniffin, kitty-pettin, baby-kissin corporate rock whores" - that was on the back of the band's original shirts. And where the Nirvana t-shirts bore the band's name, Jacobs' say 'Heaven', albeit in a very similar font.
Says the legal filing: "[The original image filed with the US Copyright Office] includes the word 'Nirvana'. The accused products do not. The [registration] includes the 'flower sniffin' writing. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs".
"The only similarity between what is covered by the [registration] and the artwork contained on the accused products", it then concludes, "is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out". Of course Nirvana might argue that the substantially circular outline and the accompanying squiggly line used for a mouth, with a tongue sticking out, are the core elements of the band's original design. But does copyright protection still apply with the other elements missing?
Elsewhere in the new legal filing, lawyers for Jacobs are also keen to stress that, not only was it Cobain who actually created the original image, but that his widow and daughter approved of the fashion firm's creation. It says: "As friends of the brand, Ms [Courtney] Love and Ms [Frances Bean] Cobain helped celebrate the release of the collection".
The Nirvana company is yet to respond to the fashion company's filing.
Ticketmaster's arbitration term likely stands, despite time limited transactions forcing speed reading of legal speak
The ticketing company is facing various bits of litigation in the US over its secondary ticketing business and allegations that - by working with touts who resell tickets originally sold on Ticketmaster's primary site - it is violating competition or consumer protection laws.
One such case is being led by a ticket-buyer called Allen Lee whose lawsuit last year alleged that "[Ticketmaster] accepts kickbacks for secretly facilitating a shortage of its product and then a sale by a third party at a higher price. Ticketmaster does this in order to receive a second cut on tickets that is even more than the original cut Ticketmaster receives".
In that legal battle, Ticketmaster responded by arguing that - under the terms and conditions Lee accepted when buying his ticket - future disputes must be taken to arbitration rather than court. Which means that any aggrieved customer's first port of call should be the ticketing firm's chosen independent arbitrator rather than a court of law.
The same argument has now been presented in another lawsuit being pursued by a ticket-buyer called Austin Dickey, who also reckons Ticketmaster's touting business might violate the law. It's in that legal battle that the lawyers came up with the argument that - given the time limit imposed by Ticketmaster at point of purchase - customers can't be expected to read lengthy terms and conditions, including any about enforced arbitration.
For its part, Ticketmaster countered that ticket-buyers also agree to its terms and conditions when they first set up an account on the ticketing website. No time limit is enforced at that moment, giving customers all the time in the world to read every term and every condition from the very beginning to the very end. Just like we all do.
But what, shouted Dickey's team, if Ticketmaster has changed its terms between a customer setting up their account and buying any tickets? When terms change, Ticketmaster doesn't communicate in a simple way what changes have been made, meaning the ticket-buyer would have to re-read all the legal chatter at point of purchase, with the enforced deadline.
Not so, boomed Ticketmaster's attorneys. First, Dickey only set up his Ticketmaster account the day before buying the tickets at the heart of this case, so nothing had changed. But anyway, there are plenty of places on the Ticketmaster platform where customers are directed towards terms and conditions before any time limit is imposed.
With all that in mind, according to Law 360, the judge overseeing the Dickey case "tentatively granted Ticketmaster's request to arbitrate" the dispute. Good times.
Oxford's Cellar venue closes following two-year battle to stay open
The venue was saved from closure in 2017 after a successful campaign pressuring its landlords to drop plans to convert the basement space it occupies into a retail unit. But it then suffered a further blow last year, when new fire regulations forced its capacity to be cut from 150 to 60, which meant the space was no longer commercially viable.
A crowdfunding campaign was then organised which raised nearly £100,000 in just five weeks, with plans to build a new fire escape that would allow the venue's capacity to increase to 200, which it was hoped would keep things going. However, the logistics of that building work and ongoing rent negotiations have finally forced the Hopkins family, who have run the venue for more than 40 years, to shut the operation down.
"After months of negotiations, we would have loved to have been able to take the landlord's final rent offer, but it came too late", the venue's manager Tim Hopkins says in a statement. "What's more, even with a vaguely do-able rent agreed, there were no guarantees on the time frame of the building work, which required access to the shop above and various structural considerations. Essentially, the whole process took far longer than we were expecting, and we simply could not keep operating under these conditions".
He then thanks the landlords for "recognising the cultural importance of the venue" and says that they "hope that the space, in some shape or form, will continue as a live music venue".
Noting the bigger picture, Hopkins adds: "This is a sad time for Oxford's city centre, with so many vacant shops and bars all around us, and we hope that our closure will be noted as part of the situation that is eroding our cultural communities. We have tried hard to save our beloved venue, but hopefully its closure will fuel further discussion between landlords and the council to stem further destruction of our beloved city. If given the opportunity, our dream for the future would be to turn The Cellar into a community interest company, a social enterprise whereby any profits would be ploughed back into the company".
Given the proposed building work will now not go ahead, monies raised via the crowdfunding campaign will be returned. Rewards that were yet to be created - such as t-shirts and the inclusion of supporters' names on a wall inside the venue - will not now be available. However, The Cellar has said that people who handed over money in return for various rewards donated by bands, record labels and festivals can still have them if they donate the same amount to the Music Venues Trust.
Another part of the Cellar crowdfunder was a raffle to win a snare drum previously owned by Radiohead's Phil Selway. This has now been donated to MVT for its own crowdfunder. Hopkins says this is in recognition of the "valuable advice and guidance" MVT has provided as the venue fought to stay open, without which, he says, "we certainly wouldn't have come this far".
In return for a £20 donation, which will go towards providing support and advice to other grassroots venues, you too can enter the new draw to win Selway's drum. Find out more here.
Work to boost disabled access to live music recognised at Outstanding Attitude Awards
Taking home the most awards was AEG's British Summer Time festival in Hyde Park, which won the prizes for customer service and event ticketing. The latter recognised updates to the event's accessible ticketing scheme, which increased accessible ticket sales by 50% between 2017 and 2018.
Smaller operations also took away awards. In the Access Starts Online categories, Deer Shed Festival took the outdoor event prize, while Manchester's Band On The Wall was handed the prize for venues under 500 capacity.
Deer Shed was recognised for the comprehensive accessible information page on its website and plans for a peer-to-peer discussion group for disabled customers. Band On The Wall, meanwhile, was commended for providing access information in various formats, including audio and braille, as well as producing a monthly audio version of its listings brochure.
"What we're really celebrating today is good customer service", says Attitude Is Everything CEO Suzanne Bull. "Deaf and disabled people represent some of the UK's most passionate music fans. Millions of us attend live music events and millions more would like to. We are a significant part of the music community".
She continues: "Today's winners represent some shining examples of how the live music business is responding to this demand. I would like to congratulate all of them, and all of our nominees, not only for the brilliant work that they've been doing but also for the inspiration they can offer to others. The Outstanding Attitude Awards is proof that everyone in live music, from the biggest festival to the smallest venue, can step up and make a change".
Here's the full list of winners and the reasons for their wins:
Customer Service Award: British Summer Time Hyde Park
Big Ambition Award: Edinburgh Festival Fringe Society
The Nigel McCune DIY Access Award: Made With Music Mini-Gigs
Accessible Infrastructure Award: GigLoo Ltd
Tech Innovation Award: SoundSense
Access Starts Online Award (Outdoor Event): Deer Shed Festival
Access Starts Online Award (Venue Over 500 Capacity): The SSE Arena Belfast
Access Starts Online Award (Venue Under 500 Capacity): Band on the Wall
Ticketing Without Barriers Award (Ticketing/Tech Company): The Ticket Factory + CredAbility Access Card
Ticketing Without Barriers Award (Venue/Event): British Summer Time Hyde Park
Take That to broadcast tour finale to cinemas
The show at Cardiff's Principality Stadium on 8 Jun will be broadcast live to over 600 cinemas around the UK and Ireland. There will also be exclusive stuff that will only be seen by cinema audiences, so if you've bought a ticket to the actual show you're really missing out.
"We're so excited to be able to bring all our fans together for the last night of our UK tour", say the band. "It's going to be a really special night for us. To have cinema audiences all around the UK and Ireland joining us here in Cardiff will be incredible - we can't wait. See you all really soon!"
Tickets for the cinema screenings will go on sale this Friday. Locate your nearest theatre here.
Atlantic, TaP Music, Devendra Banhart, more
Other notable announcements and developments today...
• Warner UK's Atlantic label has announced that it is restructuring itself to focus on six key disciplines: A&R, promotions, marketing, publicity, creative and audience. In particular, it has boosted its creative team with a particular emphasis on conceptual, visual and video stuff. Label President Ben Cook says it's a "dynamic, bold leadership structure" that will "create a truly progressive 21st century record company with an invaluable proposition".
• Devendra Banhart is going to release a book of poetry next month called 'Weeping Gang Bliss Void Yab-Yum'. That's the title I was going to use for my book of poetry. So annoyed.
• The Good, The Bad And The Queen have released a video for their song, 'The Truce Of Twilight', directed by their very own Paul Simonon.
• Shy FX has released new single 'Bad After We', featuring Ghetts and Kojey Radical. His new album, 'Raggamuffin Soundtape', is out this Friday.
• Art School Girlfriend has released new single 'Come Back To Me'. She's also announced UK tour dates in April, which will finish up at Omeara in London on 10 Apr.
• Paws have released new single 'The Watering Hole' from their new album 'Your Church On My Bonfire', which is out on 26 Apr.
• Drahla have released new single, 'Stimulus For Living'. The track is taken from their new album, 'Useless Co-ordinates', out on 3 May.
• Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Rumours of a Bohemian Rhapsody sequel begin to spread
Speaking to the New York Post, the director of various Queen music videos Rudi Dolezal says that a follow-up film is "being heavily discussed in the Queen family". Although, before you get too excited, a spokesperson for 'Bohemian Rhapsody' co-producer Graham King told Slash Film that there are currently no plans for a sequel.
Of course, King might not be especially keen to ride that merry-go-round again, despite the project's ultimate success at the box office. The movie was in development for years, churned through lead actors, and it's still hotly debated who even directed it. Plus, you know, the film won a best editing Oscar when it is demonstrably not well edited. What are the chances of being that lucky twice?
Back in October last year, Brian May told Classic Rock that he thought "Live Aid is a good place to leave it", referencing the classic Queen performance where the film ends. Although he then joked that "there might be a sequel". And that was before the whole thing became quite the money-spinner it turned out to be. It wouldn't really make sense to make a sequel, but who needs sense?