MONDAY 6 APRIL 2020 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: The COVID-19 shutdown of the live entertainment sector has created unprecedented challenges for the entire ticketing sector, which often advances money to the event promoters who are now desperately working out if their cancelled events are insured... [READ MORE]
TOP STORIES StubHub sued over COVID-19 change to its FanProtect guarantee scheme
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LEGAL Vybz Kartel's murder conviction upheld by Jamaican courts
EU Advocate General says YouTube only needs to pass the postal addresses of infringers on to copyright owners
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INDUSTRY PEOPLE ERA pays tribute to former Chair Paul Quirk
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ARTIST NEWS Duffy tells "dark" story of her kidnap and assault in new essay
Bill Withers dies
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RELEASES Laura Marling brings forward new album release to this week
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AND FINALLY... Will Drake slide out of the way for Matt Lucas's baked potato?
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StubHub sued over COVID-19 change to its FanProtect guarantee scheme
The COVID-19 shutdown of the live entertainment sector has created unprecedented challenges for the entire ticketing sector, which often advances money to the event promoters who are now desperately working out if their cancelled events are insured.

Meanwhile, the secondary ticketing industry is also in crisis mode as customers seek refunds from resale platforms which have likely already advanced monies to touts who are in turn awaiting news from primary sellers. And in the middle of all that, StubHub is now on the receiving end of a class action lawsuit in the US.

The secondary ticketing platform, recently acquired by rival Viagogo, is accused of breach of contract, negligent misrepresentation and unlawful business practices over changes it made to its FanProtect guarantee scheme in the wake of the COVID-19 crisis.

According to the lawsuit filed by ticket-buyer Matthew McMillan, when sporting, music and other live events started to cancel last month as measures were introduced to restrict and delay the spread of COVID-19, StubHub told its customers that instead of a refund they could choose a voucher worth 120% of their original ticket purchase.

But then, on 25 Mar, the company's position changed, so that in some circumstances customers would be forced to take the voucher rather than cash.

StubHub is not alone in trying to persuade customers with tickets to cancelled events to take an account credit rather than a proper refund as everyone in the industry deals with unprecedented cash flow challenges. Whether a promoter or ticket agent can refuse a cash refund depends partly on the terms and conditions of the original ticket sale and also local consumer rights law.

In some countries (or provinces and states) promoters and ticketing firms will be obliged to offer cash, which is something StubHub acknowledged when changing its position on 25 Mar. However, McMillan reckons there are also contractual grounds for getting his money back.

Secondary ticketing sites in particular have always made a much bigger deal about their money-back guarantees, which state that a platform will refund any monies spent if a ticket does not get a buyer into a show.

That's partly to combat ticket fraud, where third parties use resale platforms to sell non-existent or fake tickets. If the platform promises a refund on tickets that don't get a buyer into a show - and refuses to hand over any monies to any sellers who sell non-tickets - then, the argument goes, resale sites won't be used by fraudsters, making them a safer place to buy tickets from touts than the likes of Craigslist or Gumtree.

McMillan points out StubHub's past promotion of its FanProtect guarantee in his lawsuit. "StubHub has advertised the FanProtect guarantee heavily in internet and other media, including on its own website and partner websites", it states. "Largely because of the guarantee, StubHub's users have been willing to pay premium prices for tickets and pay substantial fees directly to StubHub".

Noting how the 120% voucher was first presented as an alternative to a refund via an email to customers on 12 Mar, the lawsuit goes on: "On 25 Mar 2020, without delivering a corresponding email to all users, StubHub changed the terms of its FanProtect guarantee on its website, now stating that 'if the event is cancelled and not rescheduled, you will get a refund or credit for use on a future purchase, as determined in StubHub's sole discretion (unless a refund is required by law)'".

In a subsequent email to customers on 30 Mar, StubHub President Sukhinder Singh Cassidy explained how his company's usual policy is to advance monies to sellers before an event has taken place, despite the usually modest risk that a refund may be necessary. If it is, StubHub then issues the refund before seeking to recoup the money from the seller. These practices are "a convenience" for both buyers and sellers, Cassidy wrote, but "given the impact of the coronavirus, it is not possible to sustain this practice in the near-term".

However, reckons McMillan's lawsuit, "these refunds were not offered as a 'convenience' to buyers, but rather were a key component of the contract between StubHub and its buyers, and the underlying feature of the heavily-advertised FanProtect guarantee. These refunds were not courtesies, they were and remain contractual obligations".

And while the COVID-19 crisis may have created a unique situation, the lawsuit says, StubHub - recently acquired by Viagogo for more than $4 billion - should have been prepared for the cash flow implications of a sudden flood of event cancellations. "Despite having recently been acquired for over $4 billion", the legal filing goes on, "instead of obtaining liquidity to weather the storm, defendants sought to simply pass its losses on to its clients".

"As a result of defendants' abrupt and illegal about-face", it adds, "at least tens-of thousands of their customers have been and/or will be cheated out of refunds to which they are legally entitled for thousands of different events".

McMillan's lawsuit seeks class action status so that, if he were successful in forcing StubHub to provide a cash refund for his ticket, that ruling could be relied upon by any US customer of the resale site who bought a ticket before the 25 Mar policy change.

StubHub is yet to respond to the lawsuit. One technicality it could look to exploit is that the ticket McMillan bought from StubHub was for a National Hockey League game, and the NHL has so far only officially paused its season not cancelled it.

The lawsuit concedes that the game McMillan has a ticket for "could conceivably be rescheduled", but adds that "it remains all but a certainty that those games will be cancelled".

Nevertheless, that could be enough for StubHub to argue that McMillan is not in the same class of StubHub users who have bought tickets to shows that have definitely been cancelled, providing a distraction that would prevent it from having to actually answer the breach of contract claims, at least in the short term.

Which means we await the secondary ticket firm's response with interest.

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Vybz Kartel's murder conviction upheld by Jamaican courts
The appeals court in Jamaica last week upheld Vybz Kartel's murder conviction. Judges rejected claims by the dancehall artist that his 2014 conviction was unsound due to the prosecution's reliance on just one eye-witness, various issues with the jury, and publicity around the case preventing him from getting a fair trial.

Kartel and three of his associates were found guilty of murdering a man called Clive 'Lizard' Williams in August 2011. Williams' body was never found. But an associate of the victim claimed that he and Williams had been summoned to Kartel's Jamaican home in a dispute over unlicensed firearms. There Kartel et al beat Williams to death, the witness initially hiding and then later discovering Williams lying motionless on the ground trying to speak.

All four of the accused continue to insist that they are innocent. Having vowed to appeal immediately after their 2014 convictions, the appeals process formally began in 2017. Following last week's ruling, a lawyer working for Kartel told DancehallMag that she now intends to take to case to judicial committee of the UK Privy Council in London, which still acts as a final court of appeal for Jamaica.

Meanwhile, appeal judges in the Jamaican courts are still considering the separate claim by Kartel et al that their sentences - which ordered then to serve at least 25-35 years before parole - were too severe. Kartel's attorney said that the extra documents the judges requested suggest they are likely to reduce her client's sentence.

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EU Advocate General says YouTube only needs to pass the postal addresses of infringers on to copyright owners
An Advocate General of the European Court Of Justice reckons that YouTube is not obliged to hand over the email or IP address - or phone number for that matter - of any user accused of uploading copyright infringing content to the video site.

Advocate General Saugmandsgaard Øe gave this opinion as part of a dispute in the German courts between movie firm Constantin Film and YouTube owner Google.

While most content owners simply issue takedowns against YouTube itself when users upload infringing content - usually via the video site's ContentID system - there is nothing to stop said content owners also seeking to sue the users directly for copyright infringement. The challenge is knowing who to sue.

It's generally agreed that courts in Europe have the power to tell YouTube to hand over contact information relating to infringing uses, but the debate in the Constantin Film case was what information precisely. The relevant European Union directive just says "names and addresses". But what kind of addresses?

After the case had bounced around the German courts a little, the country's Federal Court Of Justice asked the EU courts for clarification on what European law said on this matter. Which is why Øe was asked for his opinion. He published that opinion last week, stating that the default position when interpreting European directives is to take the "everyday language" definitions of any words, unless the directive advises otherwise.

"There is little doubt that, in everyday language, the concept of a person's 'address', about which the referring court asks in particular, covers only the postal address, as YouTube and Google have rightly submitted", he then adds. It obviously doesn't cover phone numbers, he goes on, but it doesn't cover other kinds of addresses either.

"As I have just noted", he writes, "in everyday language, the starting point in the interpreting process, the term 'address' refers only to the postal address. Therefore, when it is used without any further clarification, that term does not cover the email address or the IP address". Maybe it should - Øe says he understands why Constantin Film would like it to be so - but "rewriting that legislation falls not to the court, but to the EU legislature".

Øe's opinion is just that, it isn't binding on the EU Court Of Justice. But judges are prone to agree with Advocate Generals, so are likely to say the same to their German counterparts.

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ERA pays tribute to former Chair Paul Quirk
The Entertainment Retailers Association has paid tribute to its former Chair Paul Quirk, who died last week after a period receiving treatment for cancer.

"ERA is indebted to Paul Quirk", says the organisation's CEO Kim Bayley in a statement. "Not only was he a strong and passionate voice for music retailers for more than three decades, he was the longest-serving Chairman of ERA itself, a prime mover behind Record Store Day in the UK and a mentor to countless people across the industry. He will be missed right across the business for his enthusiasm, humour and passion for record retailing".

Quirk, along with his brother Rob, began his career in music retail when they transformed their family's chain of electrical stores into five record shops in Merseyside and Lancashire.

When the British Association Of Record Dealers - which later became ERA - was founded in 1988, Quirk was sceptical, wondering why he should sit at the same table as his main rivals such as Woolworths, Our Price and WH Smith. However, in 1997 he joined the board. He became Deputy Chair in 2003 and then had three stints as Chair between 2007 and 2017.

Having been part of the team that brought Record Store Day to the UK, Quirk continued to work on the project for a time after he had stepped down as Chair of ERA.

"I worked alongside Paul for sixteen years of my seventeen years at ERA", says Bayley. "He was not only a sharp and knowledgeable chairman, but a true friend who was unstinting in his support".

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Setlist: COVID-19, Paradigm, Public Enemy
CMU's Andy Malt and Chris Cooke review key events in music and the music business from the last week, including former Paradigm agent Debbee Klein suing her now ex-employer over redundancies - specifically her redundancy - made in response to the COVID-19 outbreak, plus Public Enemy's big hoax or non-hoax. Setlist is sponsored by 7digital.

Listen to this episode of Setlist here, and sign up to receive new episodes for free automatically each week through any of these services...

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Duffy tells "dark" story of her kidnap and assault in new essay
Duffy has published an essay in which she describes the kidnap and rape that she first spoke about in February this year. In that February message she said that she wanted to explain why she had withdrawn from the public eye after the release of her second album a decade ago, promising to publish a more detailed account of her past ordeal.

In the new essay she says that she spent "almost ten years completely alone" attempting to come to terms with what had happened to her, before explaining why she felt unable to speak out sooner and then offering support to others who have experienced sexual violence.

She reveals that she was drugged at a restaurant and then held captive in her home for four weeks before being transported to "a foreign country". She eventually managed to escape after being brought back to the UK.

Saying that initially she "didn't feel safe to go to the police", she reveals that she has since told her story to police officers twice - once when someone attempted to blackmail her, threatening to reveal her story, and again when three intruders broke into her home.

"I am sharing this [now] because we are living in a hurting world and I am no longer ashamed that something deeply hurt me, anymore", she writes. "I believe that if you speak from the heart within you, the heart within others will answer. As dark as my story is, I do speak from my heart, for my life, and for the life of others, whom have suffered the same".

As well as detailing her own story, Duffy also speaks of the people who have contacted her since she made that initial post on Instagram back in February. Both those who have offered support and others who have come to her with their own stories of sexual assault.

"I also received messages from others whom were sexually abused and raped, of all ages and races and places and genders", she says. "I want you to know I saw and read them. I read every word, and your story lives on in me".

Last month, her first new song since 2010 - 'Something Beautiful' - was played on BBC Radio 2. Although she said at the time that she did not plan to release it, and she reiterates in her essay that she does not plan to return to a career in music at this time.

"As liberating as it's been to finally speak and to finally sing, albeit on radio, I will now return to quietness", she writes. "I thank Jo Whiley for letting me share a song on radio, during these times. Meant a lot to me".

"I know this much though", she adds. "I owe it to myself to release a body of work someday, though I very much doubt I will ever be the person people once knew. My music will be measured on the merit of its quality and this story will be something I experienced and not something that describes me".

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Bill Withers dies
Singer-songwriter Bill Withers died last week due to heart complications, his family announced on Friday. He was 81.

"We are devastated by the loss of our beloved, devoted husband and father", Withers' family said in a statement. "A solitary man with a heart driven to connect to the world at large, with his poetry and music he spoke honestly to people and connected them to each other".

"As private a life as he lived close to intimate family and friends", they went on, "his music forever belongs to the world. In this difficult time, we pray his music offers comfort and entertainment as fans hold tight to loved ones".

Born in 1938, Withers originally made his career in the navy, enlisting at the age of seventeen and serving for nine years. It was only later that he became interested in making music and the possibility that it might be something he could do as a new career. He initially paid to record demoes himself, using money earned as an aircraft mechanic after leaving the armed forces.

He signed to Sussex Records in 1970 and, as a result of his delayed entry to the music industry, was 33 when he released his debut album, 'Just As I Am', the following year. With an unusual amount of life experience for a new pop star, he hit the ground running with one of his many classics, 'Ain't No Sunshine', being his first single - it sold over one million copies in 1971 alone.

In 1975, after three albums, Sussex Records went out of business and Withers signed a new record deal with Columbia. Although during this time he delivered two more ubiquitous classics - 'Lovely Day' and 'Just The Two Of Us - Withers disliked the more corporate atmosphere of the company. He also clashed with the label over what direction his music should take, leading to delays between albums and increasingly poor sales.

He parted ways with Columbia in 1985. Having already developed a dislike of touring, he effectively chose to end his career as a musician at this point. He did not entirely leave the business though, setting up a music publishing company run by his wife Marcia.

His last performance, one of very few since the 1980s, was at the 40th birthday party of Detroit Pistons owner Tom Gores in 2004.

Withers is survived by Marcia and their children, Todd and Kori.

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Laura Marling brings forward new album release to this week
Laura Marling has announced that she will release new album 'Song For Our Daughter' this week. Originally set for release later this year, conversely to many other artists, she has decided that she would rather put it out during the COVID-19 pandemic.

In a post on social media, Marling writes: "In light of the change to all our circumstances, I saw no reason to hold back on something that, at the very least, might entertain, and at its best, provide some sense of union".

"It's strange to watch the façade of our daily lives dissolve away, leaving only the essentials; those we love and our worry for them", she goes on. "An album, stripped of everything that modernity and ownership does to it, is essentially a piece of me, and I'd love for you to have it".

"I'd like for you, perhaps, to hear a strange story about the fragmentary, nonsensical experience of trauma and an enduring quest to understand what it is to be a woman in this society", she continues. "When I listen back to it now, it makes more sense to me than when I wrote it ... The sentiment of that album [is] how would I guide my daughter, arm her and prepare her for life and all of its nuance?"

The album will be released this Friday. Listen to new single, 'Held Down', here.

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Will Drake slide out of the way for Matt Lucas's baked potato?
Hey everyone, we have a chart battle on our hands. I guess. I mean, sort of. Look, at times like these we all need a distraction. Any distraction. So we might as well remember that the music charts still exist. Because Matt Lucas's COVID-19 charity single 'Thank You Baked Potato' and Drake's absolutely dreadful new single 'Toosie Slide' are battling it out for, well, not number one, but at least number three in this week's singles chart. And Drake is winning.

Last week, comedian Matt Lucas announced he was releasing a reworked version of his 'Baked Potato Song' - which he originally performed on BBC Two comedy gameshow 'Shooting Stars' - to raise money for the FeedNHS campaign. That's the fundraising initiative he co-founded that seeks to raise £1 million to get hot, healthy meals to NHS staff on a daily basis as they battle the COVID-19 pandemic.

"'The Baked Potato Song' was something I sang on 'Shooting Stars' 20 years ago and in an idle moment on Tuesday night I rewrote the lyrics and updated them", said Lucas. "'Baked Potato' is always giving good advice and the new advice in the new version of the song is about washing your hands, staying indoors and only going to grocery stores. I urge everyone to go out and buy the single this week and raise vital money for the FeedNHS campaign".

Drake's new single, meanwhile, is some dance nonsense cynically designed for TikTok success.

Anyway, both are contenders for the highest new entry position in this Friday's Official Chart. Yesterday, Drake was sitting at number three, with Lucas at number five. But a lot can happen in a working week. Remember when we were allowed to go to the pub or pop out to buy some vintage earmuffs? That wasn't actually 700 years ago, despite how it feels.

If we take Global Radio's entirely different Big Top 40 chart as a guide - which reveals its finished countdown each Sunday as the Official Chart puts out its preliminary stats for the release week - then Lucas is on to be the big winner, sitting at number two. Drake is way down at 37 in that chart. Although, that's all down to the different reporting period and the quirky maths employed by the commercial radio chart. So maybe I shouldn't have brought it up.

Whatever, we're on course for there to be one big winner when the latest Official UK Singles Chart is announced on Radio 1 this Friday. And that's, well, that's The Weeknd at the moment. He's likely to be in the number one spot which, despite everything, is still technically the top position. But forget that, what we want to know is: who might be at number two? Or maybe three. Or four. Or twelve. It's all to play for! Cling on to this. Cling on to it with all you have.

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ANDY MALT | Editor
Andy heads up the team, overseeing the CMU Daily, website and Setlist podcast, managing social channels, reporting on artist and business stories, and writing the CMU Approved column.
andy@unlimitedmedia.co.uk (except press releases, see below)
   
CHRIS COOKE | Co-Founder & MD
Chris provides music business coverage, writing key business news and CMU Trends. He also leads the CMU Insights and CMU Pathways consultancy units and the CMU:DIY future talent programme, as well as heading up CMU publisher 3CM UnLimited.
chris@unlimitedmedia.co.uk (except press releases, see below)
   
SAM TAYLOR | Commercial Manager
Sam oversees the commercial side of the CMU media, leading on sales and sponsorship, and also heads up business development at CMU InsightsCMU Pathways and CMU:DIY.
sam@unlimitedmedia.co.uk or call 020 7099 9060
   
CARO MOSES | Co-Publisher
Caro helps oversee the CMU media as a Director of 3CM UnLimited, as well as heading up the company's other two titles ThisWeek London and ThreeWeeks Edinburgh, and supporting other parts of the business.
caro@unlimitedmedia.co.uk
 
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