|TUESDAY 22 OCTOBER 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: HBO has formally begun the process of appealing a ruling in the Californian courts that would force its dispute with the Michael Jackson estate over the 'Leaving Neverland' documentary into arbitration. It is, of course, a "bogus appeal" as the broadcaster tries yet again to cover up the truth about its "shoddy journalism". Or at least that's what legal reps for the Jackson estate would like you to believe... [READ MORE]|
Michael Jackson estate call HBO's appeal in 'Leaving Neverland' dispute "bogus"
The estate sued HBO back in February over the media firm's airing of the headline-grabbing documentary that put the spotlight back on allegations of child abuse made against the late king of pop by Wade Robson and James Safechuck.
The lawsuit centres on a 1992 contract between Jackson and HBO signed when the latter broadcast footage of the former's live shows. The contract included a clause in which HBO promised to never "disparage" the musician, a commitment the estate claims the broadcaster breached by airing 'Leaving Neverland'.
As the dispute progressed, the estate filed a motion seeking to force the matter to arbitration, rather than a proper court hearing. HBO then filed a counter motion seeking to stop that from happening on free speech grounds, via what is known in American legal circles as an anti-SLAPP motion.
Last month the judge hearing the case, George H Wu, said he couldn't find any previous relevant precedent to support the idea that HBO could avoid arbitration on free speech grounds. Which meant he was prone to support the estate's motion to force the whole matter to an arbitration hearing.
Although, according to Law360, the judge also conceded that the question over whether or not a party could avoid arbitration on free speech grounds may need to be considered in a higher court. He said "the question over whether an anti-SLAPP can be applied to a motion to compel arbitration is up in the air", before adding: "Who gets to choose if it applies? Not the trial judge. Maybe the circuit court, maybe the Supreme Court".
That makes HBO's decision this week to try to take the matter to the Ninth Circuit appeals court unsurprising. The broadcaster's core legal filing yesterday was short and sweet, setting out the grounds for taking the case to a higher court.
But the Jackson estate was immediately disparaging of the media firm's latest manoeuvre. An attorney working for the estate, Bryan Freedman, told reporters: "This bogus appeal is nothing more than HBO's latest desperate attempt to cover up the truth about its shoddy journalism. For seven months HBO has tried and failed to avoid a public arbitration. This appeal, which is its latest Hail Mary attempt, is even more pathetic than all of its other attempts to avoid public scrutiny".
"If HBO truly wanted to avoid a judgment", he went on, "it should have thought about that before it aided and abetted a one-sided documentary without any journalistic integrity and in which the subjects have a huge motivation to lie - namely the millions of dollars for which they are suing the estate. Our client will never stop until justice is served".
Of course, if this case does ever get to a full court hearing or arbitration - public or otherwise - it's debatable whether or not much time would actually be dedicated to assessing the shoddy-ness or not of HBO's journalism. Or, indeed, the allegations contained in 'Leaving Neverland' and the credibility, or not, of the two men making the allegations.
After all, it's a contractual dispute at heart. Although perhaps the estate feels that, if HBO is going to argue that its first amendment rights supersede 27 year old contractual commitments, that justifies some analysis of what the broadcaster did with its free speech.
HBO is yet to comment on its decision to appeal.
Justin Bieber settles lawsuit over Instagram post
Paparazzo Robert Barbera filed a lawsuit in New York last week claiming that Bieber had used a photograph he had taken of the star without first getting permission. The image showed Bieber in the back of a car with celebrity church pastor Rich Wilkerson Jr.
Terms of the speedy settlement are not known, but Barbera's attorney Richard Liebowitz - who has made a career out of this type of lawsuit - filed a notice with the court saying that an agreement had now been reached.
The photo, posted in March, remains online. It's not clear if Bieber now has a licence as part of this settlement. Nor why Barbera didn't seek to have the post removed by issuing a DMCA takedown notice against Instagram.
Juice WRLD on the receiving end of latest multi-million dollar song-theft lawsuit
According to a lawsuit filed by the former members of Yellowcard - they having disbanded in 2017 - Higgins et al borrowed "melodic elements" of their song for his 2018 record without permission. And for that they want $15 million+ in damages, and a rights and royalty share in 'Lucid Dreams'. Which would be nice. For them.
Insisting that the similarities between the two works are sufficient to constitute copyright infringement, Yellowcard's lawsuit states: "The infringing work and infringing sound recording directly misappropriates quantitatively and qualitatively important portions of plaintiffs' original work in a manner that is easily recognisable to the ordinary observer. The infringing work and infringing sound recording are not only substantially similar to the original work, but in some places virtually identical".
To prove copyright infringement, Yellowcard also need to demonstrate that Higgins or one of his collaborators had access to their song before beginning work on 'Lucid Dreams'. On that point, the lawsuit cites various interviews in which the rapper has talked about his appreciation of "emo pop rock", a genre which includes Yellowcard, the band reckon.
In fact, he once talked about how he "listened to and educated himself in emo pop rock music" in order to impress a girl he had a crush on in the fifth grade. And you know what else happened when Higgins was in fifth grade? Yep, Yellowcard released the album on which you will find 'Holly Wood Dies'.
In terms of the mega-bucks damages being demanded, the case also notes how 'Lucid Dreams' is the track that really launched the rapper's career, and that his live business is therefore very much dependent on that one song. So we'll have some of that too please.
Higgins, his collaborators and their various business partners are all listed as defendants on the case, the latest in a series of lawsuits accusing pop stars of ripping off other people's work.
If it proceeds to court, this legal battle will almost certainly lead to yet more debate about exactly when similarities between two songs of similar genres should and should not actually constitute copyright infringement. Many in the artist community reckon recent cases in the American courts - especially those decided by juries - have tended to be too willing to see musical similarities as copyright theft.
Magistrate judge recommends vicarious infringement element of labels v Charter case be allowed to proceed
Charter is one of the ISPs being sued by the record industry in the wake of the landmark BMG v Cox ruling. In that case, BMG successfully argued that net firm Cox Communications should be held liable for its users' copyright infringement, because it did not meet its obligations under US copyright law to earn safe harbour protection from such liability.
The case centred on Cox's policy for dealing with repeat infringers. BMG argued that while Cox had such a policy, it deliberately implemented it in a shoddy way because it didn't want to have to cut off any customers that repeatedly infringed copyright. On the back of the BMG case, the majors have sued Cox as well, plus rival ISPs Grande and Charter.
The labels are seeking to hold the net firms liable for both contributory and vicarious infringement. Although Grande successfully had the latter claim removed from its lawsuit, which is important because any damages due are likely to be higher if vicarious infringement is proven. So, unsurprisingly, Charter also wants the vicarious infringement element of the record industry's case dismissed.
Arguing for that in June, Charter said that the labels had failed to prove liability for vicarious infringement. Noting the generally agreed definition of that kind of infringing activity, the ISP added that the lawsuit against them "lacks plausible allegations that Charter received a direct benefit from the alleged infringement or had the practical ability to stop it".
However, having assessed the case, magistrate judge Michael E Hegarty isn't sure about either of those claims. He reckons that the record industry's arguments, as presented in its lawsuit, sufficiently justify the claim that the option to infringe copyright was at least a 'draw' for some customers buying Charter's services, while the ISP's own terms and conditions meant it did have the ability to stop any subsequent infringing activity.
It's not Hegarty's job to decide whether those arguments actually prove Charter's liability for vicarious infringement, instead he is assessing whether said arguments are sufficient to allow the vicarious infringement claims to proceed to a full court hearing.
On that, he concludes, "taking plaintiffs' allegations as true, plaintiffs plausibly allege
Of course, one of Charter's arguments for dismissing the vicarious liability element of this dispute is that that's what happened in the Grande case. But Hegarty considers that, concluding that differences in the arguments presented in the two lawsuits means that allowing the vicarious liability part of this case to proceed would still be consistent with decisions made in that other big labels v ISP lawsuit.
It remains to be seen if the court concurs with Hegarty's recommendation, and how Charter responds as this dispute continues to go through the motions.
Coldplay announce new album in hand typed letter to fans
"Dear friends", reads the note, which quickly found its way onto social media. "My typing isn't very good, I'm sorry. I and we hope wherever you are, you're OK".
"For the last 100 years or thereabouts we have been working on a thing called 'Everyday Life'", it goes on. "In the classifieds, you might write 'double album for sale, one very careful owner'. One half is called 'Sunrise', the other 'Sunset'. It comes out 22 Nov. It is sort of how we feel about things. We send much love to you from hibernation".
The band's last album, 'A Head Full Of Dreams', was released in 2015, which is not quite 100 years ago. It's been a while though.
The band did release a teaser video earlier this week showing a photo of themselves on 22 Nov 1919, so there's your 100 years. That may also be a reference to a solar eclipse that took place on that date, seen across Africa, Europe and the Americas, in-keeping with the solar theme of the record. Equally, it could just be a coincidence.
Anyway, there's a new Coldplay album coming out. And if you don't believe me, ask your postman.
The Orielles announce space-themed second album
Of said track, the band's Esme Dee Hand-Halford says: "'Come Down On Jupiter' is as much a song as it is a narrative that soundtracks a space flight, right through from the ominous introductory sounds of the grand piano to the Lizzie Mercier Descloux-esque 'thrift shop cowboys' group chants towards the end, which diffuse the tension of the wig out preceding it".
Discussing the album's title, she adds: "Its literal interpretation from Spanish means flying disc but everyone experiences things differently. Disco Volador could be a frisbee, a UFO, an alien nightclub or how you feel when you fly; what happens to your body physically or that euphoric buzz from a great party. But it is an album of escape; if I went to space, I might not come back".
And here are those tour dates I mentioned:
25 Feb: Newcastle, The Riverside
Former Roundhouse Head Of Music Dave Gaydon has been appointed as Cheltenham Jazz Festival's new Head Of Programming. "I am delighted", says Gaydon. "We are delighted", concurs Ian George, of the event's parent company Cheltenham Festivals. Gaydon will also remain director of GOAT Music.
Music publishing giant Sony/ATV has hired Dana Baxter as its new SVP Corporate Communications. We look forward to being corporately communicated to in a Baxter stylee. "As a best-in-class music publisher, Sony/ATV represents a full circle opportunity for me to collaborate with a terrific leadership team focused on achieving a new industry standard of songwriter representation", says Baxter, showing why she got the job.
Universal Music Publishing has promoted Olga Cardona to VP Administration And Marketing, Latin Music. "Olga's passion for administration is invaluable", says UMPG's President for Latin America and US Latin, Alexandra Lioutikoff, the first time in human history that any one has ever used that sentence. Congratulations.
Trent Reznor and Atticus Ross have announced that they will release three soundtrack albums featuring music they created for new US TV show 'Watchmen'. The first will arrive on 4 Nov.
Taylor Hawkins And The Coattail Riders have released new track 'Get The Money', featuring Chrissie Hynde on Vocals, Joe Walsh on guitar and Duff McKagan on bass.
Lapalux has released new track, 'Limb From Limb', taken from upcoming new album, 'Amnioverse'.
Isobel Campbell has released new single 'Runnin Down A Dream'. Her new album, 'There Is No Other', is set for release on 31 Jan. She'll also be touring the UK in January and February.
Cold War Kids have released new single 'Beyond The Pale', taken from their new album 'New Age Norms 1', which is out next week.
Lung Dart have announced that they will release new album 'Slouching Towards Meridian' on 29 Nov. From it, this is 'A Thousand People Floating'.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Nicki Minaj clarifies 'retirement' tweet
The rapper tweeted in September: "I've decided to retire and have my family. I know you guys are happy now". For some reason fans took this to mean that she intended to retire in order to start a family and subsequently went into panic mode. Some then questioned if she really meant it given new music almost immediately appeared.
"When I posted that retirement tweet, I knew that I still had music that I already had recorded that was still going to come out", she tells The Shade Room. "So the retirement was kind of talking about my album, meaning like, 'Do I want to go back and record my fifth album? Where do I stand with it now?'"
"I didn't know my fans would act like that with the tweet", she goes on. "It hurt my feelings because I feel like the way I did it was maybe insensitive to my fans. I didn't know it was going to be that big of a deal, so that's why I deleted it".
Is she saying her fans hurt her feelings or she hurt her own feelings or she hurt her fans feelings and that hurt her feelings because of her fans hurt feelings? Answers on a postcard please.
Anyway, Nicki Minaj hasn't retired because she's still got plenty of stuff coming out that she recorded before she retired. Plus she hasn't retired. Unless she's retired. But one thing we know for certain is she doesn't like it when you say she has retired. Even though she might have.