|THURSDAY 22 AUGUST 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Here we go again! Eminem's publishing outfit Eight Mile Style has sued Spotify for streaming the rapper's songs in the US without securing the required licences. And if you thought last year's Music Modernization Act was meant to stop lawsuits of this kind, well, the reforms contained in that act are an "unconstitutional denial of due process" and "an unconstitutional taking of vested property rights". So that's you told... [READ MORE]|
Eminem publisher sues Spotify, declares Music Modernization Act unconstitutional
There have been all kinds of dramas Stateside around the payment of so called mechanical royalties by streaming services to songwriters and music publishers, of course. Partly due to the general complexities around licensing song rights, and partly because of the whims of American copyright law and the US music publishing sector.
A stream exploits both the performing right and the mechanical right elements of the song, and in some markets those rights have traditionally been licensed separately. Nevertheless, in most countries there are collecting societies that can provide streaming services with blanket or 'mop-up' licences for both sides of the copyright. So where a streaming service doesn't have a direct deal with a music publisher, it can instead rely on its society licence.
However, in the US, while there are collecting societies licensing performing rights, there is no mechanical rights society that can provide a mop-up. There is, however, a compulsory licence covering mechanical rights in the US, so the rate that needs to be paid is set by the Copyright Royalty Board.
But the streaming service still needs to send paperwork and payment to whoever controls the rights in each song on its platform.
Which isn't as easy as it sounds, given the absence of a complete, global, publicly accessible database linking songs to recordings, and identifying the owners of those songs. The lack of such a database makes it hard for streaming services to know what songs they are streaming, let alone who controls the copyrights in those songs.
Most streaming services outsource all this admin to the same agencies record labels use when they are licensing the mechanical rights for the release of physical albums or downloads. But with the huge amount of music on the streaming services, those agencies have struggled to keep up. Meaning, for lots of songs, no paperwork was ever sent. Meaning the compulsory licence does not apply. Meaning Spotify et al are infringing copyright.
Because US copyright law provides a rate card of statutory damages when rights are infringed - which aren't linked to the actual losses any one rights owner incurred - there was a big incentive to go legal whenever the mechanical rights hadn't been properly licensed by a digital platform. Cue a flurry of multi-million dollar lawsuits against most of the main streaming services, though the Spotify litigation has always got the most press.
When this first started, opinion was divided in the music community regarding who was to blame for the mechanical royalty shitstorm. Some argued that the well-funded streaming start-ups should have built systems to deal with the song licensing challenge before they even entered the US market. Others conceded that the mechanical rights licensing system in the US was royally fucked, and it was in no one's interest to have a long line of unpaid songwriters standing alongside a stack of multi-million dollar lawsuits.
Hence the Music Modernization Act. A deal was done whereby the streaming services committed to pay for the establishment of a mechanical rights collecting society able to offer a mop-up licence - like that on offer in most other countries - in return for an end to all that litigation. Said collecting society is now being set up, while a line was drawn in the sand by the MMA on 1 Jan 2018 after which statutory damages are not available to anyone suing for unpaid mechanicals from a streaming company.
But here we are. It's 2019 and we have another multi-million dollar lawsuit against Spotify over unpaid mechanical royalties seeking statutory damages. And with the involvement of a superstar songwriter to boot. Good times!
A big chunk of Eight Mile Style's lawsuit, filed with the courts in Nashville, covers the same ground as past litigation on this issue. Although it lists a plethora of songs written or co-written by Eminem that have not been properly licensed, it puts the spotlight in particular on his hit 'Lose Yourself'.
"Despite 'Lose Yourself' being one of the most famous and popular songs in the world", the lawsuit notes, "Eight Mile recently learned that Spotify, and its agent the Harry Fox Agency, placed 'Lose Yourself' in what they call 'copyright control', a category reserved for songs for which the copyright owner is not known so the song cannot be licensed".
US copyright law isn't so stupid as to fail to recognise that someone relying on the mechanical rights compulsory licence might struggle to identify any one copyright owner. In that scenario the law says that the compulsory licence can still be relied upon providing the required paperwork is sent to the US Copyright Office. Which is something the streaming services started doing with increased frequency once the mechanical royalties litigation started to stack up in the American courts.
Eight Mile concede that Spotify did send paperwork for 'Lose Yourself' to the Copyright Office, although said paperwork was, it says, "untimely and ineffective".
Also, it adds, "to the extent Spotify claims it sent [paperwork] to the Copyright Office on the Eight Mile compositions because it could not locate the copyright owners, that is absurd. Spotify, and HFA ... certainly knew (and had the easy means to know) that Eight Mile is the copyright owner of 'Lose Yourself'. With commercially reasonable efforts, that information was certainly available to them".
Of course, one of the big issues here - and in general with the payment of streaming royalties to songwriters - is that when labels and distributors upload any one track into the streaming platforms they provide the track's title and the unique identifier for the recording, ie the ISRC. However, they don't provide a unique identifier for the song, ie the ISWC.
Lots of songs have the same name. The ISWC database lists more than 100 songs called 'Lose Yourself'. Though, Eight Style would argue, if the artist performing the track is called Eminem, it's pretty certain the 'Lose Yourself' being performed is T-071.889.858-8.
So fuck you Spotify and HFA with your inept paperwork and slack attitude towards administrating the compulsory licence. But hang on a second. Beyond whatever paperwork Spotify did or did not provide, to Eight Style or the Copyright Office, for 'Lose Yourself' or any of the other allegedly unlicensed Eminem songs, possibly or possibly not in an "untimely and ineffective" fashion - what about the God damn MMA?
The lawsuit deals with that. First, it points out that, even within the MMA, there are certain obligations for the streaming services to meet in order for the limitation on the rights of the copyright owner to sue to apply. "With respect to Eight Mile", the lawsuit states, "Spotify does not meet the requirements for MMA damage limitations".
And even if the court does not concur on that point, the MMA limitations on Eight Style's right to sue should still be ignored, the publisher argues, on constitutional grounds.
It states: "The retroactive elimination of the right of a successful plaintiff to receive profits attributable to the infringement, statutory damages, and attorneys' fees is an unconstitutional denial of substantive and procedural due process and an unconstitutional taking of a vested property right". And, Eight Style the, the Middle District Court Of Tennessee Nashville Division should confirm this.
Elsewhere the lawsuit is critical of the US National Music Publishers Association, which negotiated a settlement with Spotify in 2016 over unpaid mechanicals and worked closely with all the streaming platforms on the Music Modernization Act. And which, until 2015, owned the much criticised (in the legal filing) Harry Fox Agency.
Eight Mile Style says that the NMPA was biased in those dealings because it is dominated by the major publishers which, directly or through their sister record companies, had equity in Spotify at the time. Of course, while the NMPA has worked closely with Spotify in the past, since the streaming firm appealed the Copyright Royalty Board ruling on what rates should be paid under the compulsory licence, the trade group has become its loudest critic.
It remains to be seen how Spotify and the other publishers now respond to the new lawsuit. But with a superstar writer, potentially millions of dollars in damages, and a constitutional challenge to a historic reform of US copyright law, this litigation arguably has it all.
Tidal threatens legal action against Norway over stat fiddling investigation
This all relates to those claims that the Jay-Z owned streaming firm skewed the listening stats for two albums on which it had scored exclusives: Kanye West's 'Life Of Pablo' and Beyonce's 'Lemonade'. Because of the way streaming royalties are calculated, if it did manipulate the numbers in that way, it could have had a negative financial impact on all the other artists and songwriters being streamed on the platform at that time.
The scandal around the stat skewing allegations has played out in Norway because that's where the original Tidal company, which Jay-Z bought in 2015, was based. The revelations were originally made in Norwegian business newspaper Dagens Næringsliv last year and then, earlier this year, it emerged that Norway's economic crime agency, called Okokrim, was investigating the claims. That investigation had previously been requested by the country's song right collecting society Tono.
Tidal has formal bases in a number of countries and, it has now emerged, it's via the Tidal Poland division that the streaming firm has formally complained about Okokrim's investigation and general conduct. Why? Because it reckons that the crime agency's "inadequately justified and aggressive" investigation violates an investment treaty that exists between Poland and Norway.
That means that Tidal Poland could as yet take Norway to "ad hoc international arbitration tribunal" over the Okokrim investigation. This is according to a letter that Tidal's legal reps seemingly sent to the Norwegian authorities back in April.
According to Law360, that letter reads: "Tidal Poland is ready to meet with any representative whom Norway will designate to discuss any possibility of amicable settlement of this dispute. If no solution is found within a period of six months, however, Tidal Poland hereby informs Norway in accordance with [the bilateral investment treaty] and with Norwegian law, that it intends to submit this dispute to settlement before an ad hoc international arbitration tribunal and the courts of Norway".
So that's fun. It's somewhat unclear quite how this approach to halting the Okokrim investigation will proceed. Given that Jay-Z has decided to go into business with the National Football League he previously majorly slagged off, perhaps the famous Hillary Clinton supporter could now switch political camps too and become a Trump ally. Then the Donald could buy Norway and shut the investigation down that way.
Universal says more artists in class action lost no masters in fire
According to Variety, a new court submission from Universal states that internal investigations have shown that Steve Earle, Tom Petty and Tupac Shakur definitely did not lose their masters in the fire. This leaves Soundgarden as the only plaintiff with a possible claim, according to the label. Investigations into the status of their tapes are ongoing.
The $100 million lawsuit was launched in June, following a New York Times article that claimed that the music firm had hidden the extent of the damage caused by the 2008 fire at a warehouse owned by former sister company Universal Studios, where some of the major's master recordings were stored.
Back in 2008, the label insisted that losses were minimal and that most masters had been moved away from the site prior to the fire. However, when Universal formally disputed many of the accusations contained in the recent NYT article, the newspaper then published a list of 800 possibly affected artists. This prompted the launch of the lawsuit.
In the latest of an increasingly tetchy set of statements questioning the motives of the attorneys behind the legal action, Universal says: "The plaintiffs' attorneys have already been informed that the original masters for virtually every artist named in their meritless lawsuit are safe in our storage facilities or theirs. The fact that they still pursue legal action, and even try to drum up additional bogus claims, makes clear that their true motivation is something other than concern for artist masters".
Going into more detail on this in its legal filing, Universal provides emails showing that the law firms representing artists named in the action were informed that no masters had been lost as early as late July. It concedes that Earle and Shakur did lose some material other than masters, but says it has back-ups. And there was one Shakur master lost, but it was a "generic" copy of a Shakur compilation of which, it says, it has another copy.
Earlier this week, responding to Universal's claim that the lawsuit was "baseless", one of the attorneys representing the other side, Ed McPherson, said in a statement: "Well, isn't it great! After eleven years of assuring artists that basically nothing was lost in the fire, UMG is actually conducting an investigation to what was lost in the fire".
If Universal can prove that Soundgarden also lost no masters in the fire, it remains to be seen what happens to the lawsuit. The label is already pushing for a dismissal.
The Orchard opens Tokyo office
"We are excited to enter the Japanese market and have Yuuki and the Tokyo team working with independent labels and artists to embrace the opportunities offered by Japan's ongoing shift to streaming", says Orchard CEO Brad Navin.
He goes on: "Yuuki's substantial knowledge of both the digital and physical business within Japan will help us deliver on our goal of having local support in every key part of the world, led by people who have a firm grasp on the region's strengths and deeply understand the music culture and industry. This expansion gives even greater reach to our global market solution for discovering music, reaching untapped audiences and advancing consumption".
Kaneko adds that he is "honoured" to head up the new division, aiming to "bring the Japanese music community to new heights on a global scale" while also seeking to "grow and develop The Orchard's international roster within the territory".
The Orchard now has over 40 offices across the US, Europe, Asia and Australia.
Pandora revamps direct upload tool for DIY artists
The tool for independent artists has existed for some time, with Pandora reckoning 44,000 artists have pushed 64,000 releases onto the streaming service via the set-up. Integrating it with AMP, which it has been steadily expanding since it was launched in 2014, means the upload facility will now sit alongside various other tools for artists to directly promote their music. This includes sending audio messages to fans and highlighting featured tracks.
Pandora also reckons that the updated submissions tool streamlines the whole process and increases the amount of music artists can submit. Says a press release: "The redesigned and enhanced new tool opens new possibilities for indie artists to grow their audience on Pandora and directly engage with their fans and find new ones, all while allowing for more submissions and reducing wait times".
The expansion of this existing tool comes shortly after Spotify abandoned its plans to allow artists to upload music to its platform directly.
Although Spotify was vague about why it had decided not to put its pilot upload tool properly live, the decision came after a number of unauthorised releases reached the platform through third party distributors. And also with questions being asked about what safe harbour protections the streaming firm could rely on if such unofficial uploads were ever made through its own platform.
Pandora's offering seems to place more limitations on direct uploads than Spotify's would have. You'll find more information on the new submissions tool here.
Bob Harris to return to BBC Radio 2 next month
Since then, a number of guest presenters have stood in for Harris on his Thursday night country music show. The Shires' Ben Earle continues a run of guest presenting slots tonight and next week, while Lady Antebellum will take over on 5 Sep and Paul Sexton will broadcast live from the BBC Introducing stage at the Long Road Festival on 12 Sep. Harris will then take his seat in the studio again on 19 Sep.
"I am so happy to be returning to Radio 2", says Harris. "Following my aortic dissection at the beginning of the summer the past few months have been amongst the toughest of my life, but I am now fit again and raring to go".
"Thank you with all my heart to the thousands of people who have sent me messages of love and support", he continues. "Your good wishes have been an essential part of my recovery. Thank you to Kristian Bush, Carrie Underwood, Little Big Town, Trisha Yearwood, Lady Antebellum, Paul Sexton and especially to Ben Earle for doing such a fantastic job sitting in for me and thank you to Radio 2 and my producer Mark Hagen for keeping the door open for my return".
Harris returns just in time for the BBC's country music season, with a collection of programmes looking at the genre airing on BBC Two, BBC Four and BBC Radio 2. The centrepiece of this will be feature length Dolly Parton documentary with the working title 'Dolly's Country'. This film is directed by Francis Whately, who previously created a trilogy of David Bowie documentaries for the Beeb.
Neil Hughes, formerly of RCA, has been appointed Managing Director at Tileyard Music, the management, publishing and recordings company based out of the Tileyard Studios complex near Kings Cross. "We are THRILLED", says the firm's co-founder Michael Harwood.
Mark Ronson and King Princess have released an interactive Instagram video for their song, 'Pieces Of Us'. Sort of. It's a series of Instagram Stories posts, so the main interaction - I found - was skipping through it all really quickly. Apparently, there's other stuff you can do though that will change daily.
Five Seconds Of Summer have released new single 'Teeth', featuring the actual Tom Morello. We were sent quite a long quote from frontman Luke Hemmings but it doesn't mention the Rage Against The Machine guitarist once, so I'm not sure why he bothered.
Thom Yorke has released a new track, 'Daily Battles', featuring Red Hot Chili Peppers bassist Flea. It's taken from Yorke's soundtrack for upcoming film 'Motherless Brooklyn'.
Mura Masa has released new track 'I Don't Think I Can Do This Again', featuring Clairo. "This is the beginning of rolling out a new direction for Mura Masa, which has a much heavier focus on band and guitar music", says the producer.
Stefflon Don has released new track 'Hit Me Up'.
Kano has released new single 'Pan Fried', featuring Kojo Funds. The track is taken from his new album 'Hoodies All Summer', which is out next week.
Young Thug has released the video for 'Surf' from his 'So Much Fun' album.
Formerly working together under the name Techno Animal, Justin Broadrick and Kevin Martin have reunited under the monkier Zonal. The duo are set to release a new album, titled 'Wrecked', on 20 Sep. From it, this is 'System Error'.
Flohio is back with new track 'Way2'.
Kindness has released new single 'Raise Up'. His new album 'Something Like War' is out on 6 Sep.
Feeder have released 'Blue Sky Blue' from their new album 'Tallulah'.
Spector have released new track 'Half Life', taken from a new EP due out in the autumn. They will also be touring the UK in October and November.
Sampa The Great has released new track 'Freedom', taken from her new album 'The Return', out on 13 Sep. "'Freedom' is about ... the balance of earning a living and expressing your artistry, and what you're willing to compromise through it all", she explains.
Efterklang have released new single 'I Dine Øjne'. The track is "about peepholes to a fantasy, in the eyes of a person you just met in a brief encounter", says frontman Casper Clausen. "It's definitely driven by desire and lust, but also that feeling of loss when you wake up, alone with yourself again". New album 'Altid Sammen' is out on 20 Sep.
'Pen Pineapple Apple Pen' star Pikotaro's gone dark.
GIGS & TOURS
Slipknot have announced UK tour dates next year. Kicking off at the Manchester Arena on 16 Jan, they will wend their way around England, Scotland and Wales, until finishing up at the O2 Arena in London on 25 Jan. Tickets go on general sale on 30 Aug.
Anna Calvi, Cate Le Bon, Dave, Idles, Seed Ensemble and Slowthai are all confirmed to perform at this year's Mercury Prize ceremony on 19 Sep. Lauren Laverne will present the whole thing. She says this: "It's a pleasure to be hosting the 2019 Hyundai Mercury Prize. This year's shortlist is such a fantastic representation of British and Irish music in 2019, and I do not envy the judging panel! It's going to be very difficult to predict which of the twelve albums of the year receives this year's prize". No it isn't, it'll be Dave.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Taylor Swift planning to re-record old songs to spite former label
Although Swift had a long and fruitful relationship with Big Machine and its founder Scott Borchetta - who set up the label in 2005 in order to sign her - things turned somewhat sour, of course, after she signed a new deal with Universal Music in 2018. Then more so when Borchetta sold his record company and its catalogue of recordings to Scooter Braun earlier this year - something she described as her "worst case scenario".
Swift claimed that Braun has bullied her for years, and that Borchetta knew this, implying that, in part, he'd done the deal to spite her.
Particularly galling was the fact that she had been unable to regain her master rights from Big Machine when attempting to negotiate a new deal with the firm. Which was part of the reason why she left for Universal, where she negotiated a contract allowing her to keep the rights in her future material, starting with upcoming new album 'Lover'.
After Swift went very public over her anger at the Big Machine deal, and with Borchetta quickly responding online, everyone had an opinion on the whole bust up, one way or another.
Among the social media missiles was a tweet from Kelly Clarkson, who wrote to Swift: "Just a thought, you should go in and re-record all the songs that you don't own the masters on exactly how you did them, but put brand new art and some kind of incentive so fans will no longer buy the old versions. I'd buy all of the new versions just to prove a point".
Now it seems that Swift is actually planning to do this. At least that what she suggests in a new interview with 'CBS Sunday Morning', set to air this weekend. On Sunday morning, in fact.
"Might you do that?" asks interviewer Tracy Smith, referencing Clarkson's plan.
"Oh yeah", Swift says.
"That's a plan?" Smith asks.
"Yeah, absolutely", Swift says.
I mean, that's literally it, but she definitely says it's "a plan". I think that's good enough, isn't it? I think we can assume it's definitely happening. Unless her deal with Big Machine scuppers it - many record deals place specific limitations on re-records for a set time period to avoid exactly this happening.
Assuming such limitations do not apply, it would be interesting to see if Big Machine and their lawyers could find any other legal technicalities to stop such a re-record plan. I mean, trying to do so would be kinda petty and vindictive. So I'm guessing they will.
And even if there are no legal problems, there are other potential issues. She would not be the first artist to go down this route. Some - like Simply Red and Cracker - chose to record new versions of older songs, but if you really want to put the knife in, you're going to need to try to recreate the originals. That poses its own challenges.
When Def Leppard set about making "forgeries" of some of their early hits, frontman Joe Elliott admitted that hitting the high notes his 22 year old self recorded 30 years previously proved challenging. In the case of Swift, she's potentially going to have to find a way of sounding like a fifteen year old, which might be a taller order.
But maybe she won't be aiming for perfect copies. Maybe she's just going to knock out a load of quick acoustic versions of her hits, like Willie Nelson's 'The IRS Tapes' album (recorded to pay a tax bill, rather than spite a label). But I think the real thing we should be talking about here is that I just got about 650 words out of an eleven word section of an interview.
Speaking of words, elsewhere in Taylor Swift news, she has apparently removed the "hey kids, spelling is fun!" spoken word bit of lead 'Lover' single 'Me!' from the version on streaming services. Which is good. Although she could really improve the new album by dumping that track altogether.