|TUESDAY 29 OCTOBER 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Judges in the Ninth Circuit appeals court Stateside have had a good old rummage around the back of a dusty old drawer in a locked room somewhere in their basement and found a century old precedent that allows them to reinstate a song-theft lawsuit against Taylor Swift. Because that's how much the haters hate. Or maybe they're players playing... [READ MORE]|
Ninth Circuit revives Shake It Off lyric-theft lawsuit
This is the 'Shake It Off' lyric theft case, which is now heading back to a lower court for a second sitting. Back in 2017, Sean Hall and Nathan Butler accused Swift of ripping off a 2001 song they wrote for 3LW called 'Playas Gon Play' on her 2014 hit 'Shake It Off'. The lawsuit argued that Swift's famous lyric "Cos the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate" was basically a copy of the line "The playas gon play/Them haters gonna hate" from their 2001 track.
Swift's legal team dubbed the song-theft claim a "money grab" and asked the judge to dismiss the case. Which he did early last year, on the basis that the fact of players playing and haters hating was all too "banal" for Hall and Butler's original lyric to enjoy copyright protection in isolation. Writing about playing players and hating haters lacked the "originality and creativity" required for copyright to kick in, the judge added.
But Hall and Butler hadn't finishing playing. Or hating. One or the other. They took the case to the Ninth Circuit appeals court, arguing that whether or not their 2001 lyric could enjoy copyright protection in isolation was too complex a question for a judge to decide on his own without a full court hearing. The matter should have been decided by a jury after both sides had presented their respective arguments in a courtroom.
Yesterday the appeals court basically concurred. Although noting the solid legal precedents cited by Michael W Fitzgerald - the judge in the original case - in his 2018 judgement, the appeals court judges added that Hall and Butler's lawsuit "still plausibly alleged originality". They then cited a precedent of their own from a 1930s case, which says that, in copyright disputes, the "question of originality ... is one of fact, not of law". And to that end, a jury should have been asked to consider the originality of Hall and Butler's lyrics.
Going even further back into legal history for another precedent, the Ninth Circuit then cited a famous copyright ruling from a 1903 US Supreme Court case. In it, the often quoted Supreme Court justice Oliver Wendell Holmes Jr cautioned judges against appointing themselves the final authority on issues of originality in copyright disputes.
The 1903 Bleistein v Donaldson Lithographing Co dispute actually centred on whether adverts could be treated as works of art protected by copyright. Snooty judges in the lower courts ruled not. Holmes said that it wasn't the job of judges to make such artistic judgements.
The famous extract from that case, cited by the Ninth Circuit in the 'Shake It Off' judgement, goes: "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits".
"At the one extreme", the judgement went on, "some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke ... At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge ... and the taste of any public is not to be treated with contempt".
So, basically, while a highly educated district court judge may consider the line "The playas gon play/Them haters gonna hate" too "banal" to enjoy copyright protection, what would a room full of pop loving plebs think? Are those less educated haters gonna hate? Are those plebby players gonna play? Given recent jury rulings in song-theft cases in the US, they'd probably decide that Swift should pay Butler and Hall ten million dollars.
The Ninth Circuit concluded yesterday: "Justice Holmes' century-old warning remains valid. By concluding that, 'for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here', the district court constituted itself as the final judge of the worth of an expressive work. Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court's dismissal".
Both sides make new legal filings in Peloton v the music publishers
More than a dozen independent publishers sued Peloton earlier this year accusing it of making use of their songs without licence. Peloton makes fitness machines that come with screens via which users can access workout videos. The lawsuit alleged that some of those videos contained unlicensed music controlled by the plaintiffs.
Peloton then countersued in April, mainly on competition law grounds. It alleged that it had previously had good relationships with most of the publishers involved in the legal dispute and was negotiating licensing deals with many of them. Those relationships only fell apart, it then claimed, because of interference by America's National Music Publishers Association.
The fitness firm again summarised those allegations in another legal filing earlier this month. It asked: "Why are we here then? Because of the anti-competitive and tortious conduct of the counterclaim defendant National Music Publishers' Association. Specifically, NMPA has instigated a co-ordinated effort with the counterclaim defendant music publishers to fix prices and to engage in a concerted refusal to deal with Peloton".
It went on "Through these actions, NMPA has exceeded the bounds of legitimate conduct for a trade association and become the ringleader of concerted activity among would-be competitor music publishers, all in violation of the antitrust laws. NMPA has also knowingly acted to impede direct negotiations between music publishers and Peloton in a manner that constitutes tortious interference with Peloton's business relationships. These unlawful actions have harmed Peloton, have harmed competition, and will continue to harm both until enjoined by this court".
The NMPA has been disparaging of Pelton's allegations of anti-competitive behaviour ever since they were first made in April, basically arguing that the fitness company is pursuing competition law arguments because it knows the case for copyright infringement is so strong. The publishers have also restated their arguments in a new court filing submitted last week. They cite the so called Noerr-Pennington doctrine under US law, which basically allows competing businesses to collude for the purposes of lobbying or litigation.
They state: "It is settled law that the very conduct identified as the basis for Peloton's claim - the publishers' filing of the copyright infringement lawsuit and any alleged joint refusal to license incidental to that lawsuit - is shielded from antitrust liability by the Noerr-Pennington doctrine. Any other conclusion would render Noerr-Pennington meaningless".
To that end the music publishers urge to court to dismiss all of Peloton's competition law complaints as outlined in its most recent countersuit filing with the court.
Bob Harris launches publishing venture and announces sync-based events
"Bob Harris is a consummate music man who has championed many iconic artists and songwriters throughout his career", says Peermusic MD Nigel Elderton. "He continues to be a trusted guide to millions who have music at the centre of their lives".
Harris adds: "We have been filming and recording Under The Apple Tree sessions for the past few years and have discovered a catalogue of wonderful new talent. I am massively proud that UTAT has now signed a joint venture with Peermusic, the biggest independent music publishing company on the planet. It will give all of us the opportunity to get behind the new talent that comes into our studio and really help the artists we love and believe in to get their music out to audiences across the world".
Elsewhere in Harris news, the Radio 2 presenter has announced a series of eight monthly events in partnership with music supervision company Soundlounge, under the banner 'An Evening With Bob'. The eight events will focus on the power of music and its relationship with advertising and branding. Each will discuss a different part of the music or advertising industry with a variety of guests.
''I wanted to explore the world of music supervision because I believe that the experience of my 50 years in the music industry will bring constructive thought and creative insight to the intersection of pictures and sound", says Harris.
"I have been building radio programmes, running orders, documentary soundtracks and soundscapes all my working life and have a huge multi-genre library of music I've collected through the years", he goes on. "More than any other medium, music helps me express my creative ideas and I've acquired a keen sensitivity to the mood and atmosphere that imaginative music placement can create".
The first event takes place at the Century Club in London tonight, featuring live music from Cassa Jackson and 10cc's Graham Gould. Find out more here.
Sony Music UK launches kids label Magic Star
The imprint will be overseen by Will Speer, who joins from NBCUniversal, where he led marketing for DreamWorks TV and NBCU Kids & Family. He has also worked at Mattel and Disney.
Nicola Tuer, COO of Sony Music UK & Ireland, says: "We recognise family entertainment as an untapped market so launching Magic Star provides a wealth of opportunity for us and will strengthen our capacity for growth. Will is a highly respected executive with a track record of success and knowledge in the industry, which will serve us well as we advance in this market".
Speer himself adds: "Sony Music have identified a huge opportunity within the family entertainment market to create fresh new audio and audio-visual content and also have access to a wide repertoire of signed artists who already have huge family appeal. The scope is endless, and I am very much looking forward to bringing my experience in kids' media to such an entertainment powerhouse like Sony Music".
This is great, where do I pitch myself for a song about a young shark?
The Darkness respond to criticism of sword on new album cover
The artwork, which depicts the band's members in a crucifixion scene, has already been banned on some digital music services in the Middle East and North Africa on the grounds that it could offend certain religious groups.
In the painted image, which mimics classic Christian iconography, a muscular Hawkins is seen breaking himself off a cross by flexing his biceps. Meanwhile his brother Dan holds a severed head, drummer Rufus Taylor beats a Roman guard with drumsticks, and bassist Frankie Poullain stands ready to stab another with a sword.
The latter element of the image has been criticised in its own right on the somewhat dubious grounds that the presence of a sword somehow promotes knife crime.
Speaking to Sky News, Hawkins said that while he wouldn't apologise for an image portraying himself as a crucified Jesus Christ - "Willem Defoe has played Jesus, no one gives him a hard time" - he was sorry if anyone was offended by the image in the context of the recent rise of knife crime in the UK.
But, he pointed out, "what we were trying to do was interfere with biblical iconography and the sources we studied to assemble that image were from hundreds of years ago. We didn't recognise that it might be insensitive in the current climate. We saw it as ... escapism in talking about an imagined scenario from an alternate reality, and if we have offended anybody, all we can do is apologise".
As for the ongoing conversation around the recent rise in knife crime incidents, Hawkins then posed a number of questions. "Why has this person got a knife in the first place? Why have they taken it from their kitchen? Is it with a view to defend themselves or to attack somebody? There's obviously a danger present in their daily existence which makes them feel like they need to be armed. I think the problem is bigger than knives".
'Easter Is Cancelled', the band's sixth album, was release earlier this month.
Ivors Composer Awards nominations announced
You might also be confused as to why I'm talking "this year's Ivors Composer Awards" even though you've never heard of them before. Well, that's because the event has existed since 2003 as the British Composer Awards. But now that the songwriter organisation that was called BASCA has been renamed the Ivors Academy, there's been a renamin, presumably to bring everything under one brand. You know, to avoid confusion.
The awards (the composer ones, not the others ones, do keep up) recognise UK composers working in classical, jazz and sound art. Nominees this year include Gary Carpenter, James MacMillan, Charlotte Harding and Emily Peasgood.
"We're incredibly excited to honour a wide range of phenomenal talent, all of whom have demonstrated the highest quality of composition craft in their fields, engaging with and challenging the world around them", says Ivors Academy Chair Crispin Hunt.
The event will take place at the British Museum on 4 Dec and will be broadcast on BBC Radio 3.
Here are all the nominees:
Solo or duo
Jazz composition for small ensemble
Jazz composition for large ensemble
Community or educational project
Amateur or young performers
Kobalt's AMRA has hired Robin Davies as General Manager and Head Of International. "I have worked with Robin for a number of years and his operational capability alongside his fundamental understanding of how to apply that knowledge for AMRA in the current and future music industry will further complement our growing team in AMRA in our next phase of growth", says CEO Tomas Ericsson, without even taking a breath.
Taylor Hawkins And The Coattail Riders have released new single 'Middle Child', featuring that Dave Grohl bloke. Here's Taylor Hawkins talking about that track, if that's the kind of thing you'd like to see.
Blood Orange has released the video for 'Dark & Handsome', from his 'Angel's Pulse' album.
HTRK's Jonnine Standish has released her debut solo EP, 'Super Natural'. From it, this is 'Scorpio Rises Again'.
Rapper ATO has released the video for 'Space To', taken from his upcoming new album 'EP3'.
GIGS & TOURS
Sigala has announced UK tour dates in February, including a show at London's Roundhouse on 20 Feb. Tickets go on sale on Friday.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Justin Bieber will release album in return for 20 million Instagram likes
"If this gets 20 million likes, Justin Bieber will release an album before Christmas", reads a new post on Bieber's Instagram account. What happens if he doesn't reach the target? Does he take the album outside and set fire to it in a bin? No, it'll just take him longer to finish it.
In the caption for the image, Bieber clarifies: "Share it, like it, post in your story, I gotta see the demand ... I'm almost done but your support will make me move faster".
Apparently Biebs is so spoiled by social media that no less than 20 million likes will get him off his arse to put the finishing touches on the album. The joy of creating isn't enough. Nor the joy of making of loads of cash once the new record starts streaming.
Actually, if anything, it sounds a bit like he's got almost all the way to the end of the album making process and realised he doesn't like what he's done. But if people really want it, he'll give it to them anyway and move on with his life.
Either way, in under 24 hours the post has received almost ten million likes, so we may well see this album before Christmas. Unless it turns out that he's hoping to pay his studio bills with meaningless likes, which probably isn't going to go well.