|TUESDAY 4 FEBRUARY 2020||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The Second Circuit appeals court in the US has upheld a lower court ruling regarding a sample dispute over Drake's 2013 track 'Pound Cake'. The higher court confirms that Drake's lengthy sample of a recording by jazz musician Jimmy Smith is fair use, and therefore the use of that sampled audio without licence does not constitute copyright infringement... [READ MORE]|
US appeals court rules that Drake's Jimmy Smith sample is definitely fair use
The recording that was sampled was a short spoken word bit called the 'Jimmy Smith Rap' that appears on his 1982 album 'Off The Top'. In it the musician introduces that record and, in the process, declares that "jazz is the only real music that's going to last, all that other bullshit is here today and gone tomorrow, but jazz is, was and always will be".
Drake's label did actually get a licence to sample the Smith recording. But after 'Pound Cake' was released the jazz musician's estate went legal on the basis that no licence had been sought for the literary work contained within that recording, ie the separate copyright in the words. It was then that Team Drake pleaded fair use.
Most sample cases focus on the recording rights rather than the accompanying musical or lyrical rights. Mainly because the samples are usually very short, and it's hard to argue copyright would protect a couple of beats or words in isolation. But with the recording - although the US courts haven't been entirely consistent on this - it is generally agreed even a tiny snippet is usually protected by copyright.
But this case was different. Partly because the recording had been licensed so wasn't part of the dispute. But also because Drake sampled more than 30 seconds of Smith's track, so there was no debate over whether or not there was enough substance for the sampled material to have copyright protection.
So it all centred on fair use, the slightly nebulous concept under American copyright law that says that, in certain circumstances, people can make use of copyright works without the copyright owner's permission.
In upholding the lower court ruling in Drake's favour, judges in the Second Circuit considered the four factors that US copyright rules state can make an unlicensed use of copyright work fair use. They reckon that three of those factors support the claim that Drake's use of the Smith sample was fair, though the first factor is probably most important and certainly most interesting.
Basically, the judges conclude that Drake's use of Smith's words was fair use because he is countering the opinions the jazz musician aired on his 1982 record.
In the words of the Second Circuit: "The message of the 'Jimmy Smith Rap' is one about the supremacy of jazz to the derogation of other types of music, which - unlike jazz - will not last. On the other hand, 'Pound Cake' sends a counter message - that it is not jazz music that reigns supreme, but rather all 'real music', regardless of genre".
The court goes on: "'Pound Cake' criticises the jazz-elitism that the 'Jimmy Smith Rap' espouses. By doing so, it uses the copyrighted work for 'a purpose, or imbues it with a character, different from that for which it was created'". Which, the judges reckon, is sufficient to constitute fair use.
Most other copyright systems around the world don't have a get out quite as wide-ranging as the US concept of fair use, although there are still scenarios when copyright works can be used without licence, what are usually called copyright exceptions.
A common exception is for critical analysis, where you quote someone else's work in order to critique it. Given the Second Circuit's comments, it seems likely Drake's team could probably have relied on that copyright exception even in jurisdictions without the lovely fuzzy concept of fair use.
Concluding, the Second Circuit adds: "We have considered the remainder of appellants' arguments and find them to be without merit. Accordingly, the order of the district court hereby is affirmed".
R Kelly's ex-girlfriend reportedly speaking to prosecutors
Clary was a vocal supporter of Kelly as he faced multiple criminal charges last year relating to allegations of sexual abuse. But last month she reunited with her family and said that she now believes she was a victim of abuse herself. This followed an on-camera fight with Kelly's other girlfriend Joycelyn Savage, which resulted in a battery charge for Savage.
Kelly's attorney Steve Greenberg has seemingly confirmed that Clary is now working with the prosecution. Although he's previously issued statements on stories related to Clary and Savage that subsequently turned out to be false. Nevertheless, he tells TMZ: "It's not news to me. I've suspected it all along, but you can't get in the way of love... Rob's love for her".
TMZ also reports that, since Clary left Kelly, both she and her family have been receiving death threats, which prosecutors are monitoring.
New Zealand Supreme Court knocks back Kim Dotcom's appeal over illegally gained evidence in the MegaUpload case
MegaUpload, of course, was a file-transfer and video-sharing platform accused of deliberately facilitating rampant copyright infringement. It was shut down by the US authorities on copyright grounds all the way back in 2012. Said US authorities have been trying ever since to extradite MegaUpload chief Kim Dotcom and some of his former colleagues from their base in New Zealand to face criminal charges in America.
There has been all sorts of other legal wrangling in relation to the demise of MegaUpload in both the US and New Zealand alongside the core extradition hearings. That includes Dotcom's claims that New Zealand's Government Communications Security Bureau illegally spied on him, his family and his colleagues ahead of the 2012 shutdown.
Based on those allegations from Dotcom, the conduct of the GCSB was subsequently investigated. By 2013 it had been confirmed that the agency had indeed broken the law in the way it spied on Dotcom and his associates. That confirmation predictably resulted in further litigation from the MegaUpload camp.
In the end there were two sides to this particular MegaUpload legal dispute. First, whether Dotcom was due damages as a result of him being illegally spied on. It's generally agreed that yes he is. Secondly, whether Dotcom should have access to the recordings made when the GCSB was intersecting his communications as part of its illegal investigation.
On the second point, the spy agency argues that the recordings should remain confidential citing New Zealand's 2006 Evidence Act, and claiming that "the public interest in the information being disclosed [is] outweighed by the public interest in withholding it". Both the country's High Court and Court Of Appeal have sided with the GCSB on that point.
In a ruling late last year, appeals court judges said that while "the intercepted communications are relevant and there is a public interest in them being disclosed" to inform Dotcom's ongoing case against the spy agency ... "the GCSB's claim that disclosure would harm national security and international relations is well-founded". The appeals court's job, the judges said, was to balance these two facts. They concluded: "The balancing exercise favours non-disclosure".
Dotcom promptly took the matter to New Zealand's Supreme Court. But yesterday judges there declined to hear the case, stating: "We are not satisfied that it is necessary in the interests of justice to hear the proposed appeal".
The judges went on: "While there may be questions arising about the scope and application of s70 of the Evidence Act, the present case is not the appropriate case to consider those issues. No question of principle arises. Rather, the matters the applicant wishes to raise relate to whether natural justice was met in this particular case and as to the weight given to the competing public interests on these facts".
"Nor does anything raised by Mr Dotcom give rise to the appearance of a miscarriage of justice", they concluded. "Mr Dotcom's arguments would reprise matters all of which have been carefully examined in the courts below and, as the Court Of Appeal noted, the 'general nature of the disputed information is known to Mr Dotcom'. In addition, these issues would arise in a context where the respondent has been held to account having accepted liability and the central question is as to the level of damages".
Needless to say, Dotcom was disparaging of the Supreme Court's decision yesterday, writing on Twitter: "Wow. The New Zealand Supreme Court won't hear my GCSB case. The court agrees: 'Disclosure would harm national security and international relations'. What does this mean? The rights of Kiwis are secondary to the interests of the United States".
He subsequently issued a lengthy statement on the side case in which he wrote: "It has long been said that 'sunlight is the best disinfectant'. For eight years I have fought to shine some much needed sunlight on the GCSB's conduct so that we as a community can ask ourselves whether we deserve better from the intelligence agencies whose extensive powers are supposed to be used to protect us, not spy on us".
"Unfortunately", he added, "today's judgment confirms that the law as it stands in New Zealand can be used in this way and effectively allows such misconduct to remain in the shadows. I will never know the true extent of the GCSB's unlawful conduct".
Although conceding that he is still due damages in relation to the unlawful spying, he went on: "This proceeding has never been about the money for me. It has long since ceased to be economic to pursue it. For me, it has always been about ensuring that we know what has happened and, as a result, the GCSB is held accountable publicly for its unlawful
Although the Supreme Court has declined to hear this side case in the MegaUpload saga (it declined to consider some other legal technicalities last March too), New Zealand's highest court did spend some quality time last year considering the actual extradition case against Dotcom et al. We are expecting its judgement on that very soon.
It seems likely it will rule against Dotcom. Although, given the complexities of extradition, his routes of appeal have not yet been exhausted, so it's unlikely he'll be sent to the US courts anytime soon.
Sony announces podcast partnership with Somethin Else
The two companies say that, under the new partnership, "Somethin Else will work with Sony Music to expand its leadership position in the UK market. In addition, the companies will pursue a range of new international podcasting opportunities including in the US where Somethin' Else has opened an office in New York".
Confirming the tie up, Somethin Else boss Jez Nelson says: "We are extremely excited about entering into this joint venture with Sony Music. It's a dream combination of our decades of audio production expertise and podcast success with their global reach, market expertise, marketing power and creative nous".
"This partnership will allow us, together, to rapidly expand our podcast business, reaching new audiences and revenues", he adds. "Sony's ambition in this space matches ours and we look forward to playing an even bigger part in the podcast revolution".
Over at Sony, UK CEO Jason Iley chips in: "We are building a diverse music and entertainment company by working with partners who are the best in their fields. Somethin Else have driven so much of the creativity and innovation in British podcasting and we are delighted to help bring their work to audiences around the world".
Big Sync expands into Australia, Germany and France
The new hires around the world are Michael Szumowski in Sydney, covering Australia and New Zealand; Pedro Anacker in Hamburg, covering Germany; and Nicolas Farcy covering France from his base in Paris.
Confirming all this, Songtradr CEO Paul Wiltshire says: "As brands produce more, highly targeted, data-driven content to engage with consumers on multiple platforms, music is playing an increasingly important role".
"Expanding into Australia, France and Germany", he adds, "will enable us to help brands and content creators meet their music needs from a cultural, creative and commercial perspective as well as opening up new opportunities for rights owners to reach new audiences".
HBO picks up documentary featuring Russell Simmons' accusers
Various accusations of rape and sexual harassment were made against Simmons in 2018 in the wake of the #MeToo movement. For his part, he has denied all the allegations.
The documentary 'On The Record' features a number of Simmons' accusers, including Sil Lai Abrams, Sheri Hines, Jenny Lumet, Alexia Norton Jones and former Def Jam executive Drew Dixon. The programme was made by directors Kirby Dick and Amy Ziering.
The project was originally meant to air via Winfrey's partnership with Apple's new TV service. But last month she announced she was bailing on the project, saying in a statement: "In my opinion, there is more work to be done on the film to illuminate the full scope of what the victims endured, and it has become clear that the filmmakers and I are not aligned in that creative vision".
Confirming they would now distribute the programme, the Head Of Original Content for HBO's soon-to-launch new streaming service HBO Max, Sarah Aubrey, said: "The fierce determination of Drew Dixon and all of the women who bravely chose to share their stories in 'On The Record' moved us profoundly. I've been impressed with Amy and Kirby's work over the years covering this complex subject matter, and look forward to this film finding the widest possible audience".
Welcoming the deal from their side, co-director Ziering added: "Kirby and I are so proud to be teaming with HBO Max to give this film the outstanding platform it deserves and can't wait for the public to see and hear the voices of these courageous women".
Nadine Shah announces album, puts live new video
Explaining the story behind that track, Shah says: "My brother was making a comment on sexism when he was younger and made a painting of a man embracing a goat with the phrase 'ladies for babies, goats for love'. It always stuck with me, I guess cos it sounded daft, but really because even back then I knew its true meaning and intent".
"I was also thinking about a lot of the songs I would have been listening to at the time, songs I sang along to innocently without question of the meaning", she goes on, then revealing "'Ladies For Babies' is a direct response to 'All That She Wants' by Ace Of Base".
"I reversed the gender and I poke fun at a husband who expects nothing more from me, as a wife, than to carry his child and perform the role of the obeying subservient trophy wife", she explains. "Only this time the mistress is a farmyard animal".
The single is a good starting point for the new album which, she confirms "explores subjects of sexism and tradition". Though, she adds, "it's not all about bestiality, I promise".
Beach Boys battle over trophy hunting convention performance
Love and the people he has performing with him under the Beach Boys banner these days are booked to play the Safari Club International Convention in Reno tomorrow. As well as the band's performance, attendees will be treated to a keynote speech from Donald Trump Jr.
"It has been brought to my attention that on Wednesday 5 Feb, The Beach Boys touring group licensed by Mike Love are headlining at the Safari Club International Convention in Reno, Nevada", tweeted Wilson. He continued: "This organisation supports trophy hunting, which both [fellow original Beach Boy] Al [Jardine] and I are emphatically opposed to. There's nothing we can do personally to stop the show, so please join us in signing the petition".
Love responded in a statement: "We look forward to a night of great music in Reno and, as always, support freedom of thought and expression as a fundamental tenet of our rights as Americans".
Trophy hunting, or the hunting of wild animals for sport, is a controversial topic. Its supporters often point to the fact that money earned from allowing the killing of some animals pays for conservation projects in certain African countries. But critics remain unconvinced.