|THURSDAY 13 AUGUST 2020||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The estate of the late Randy Wolfe has officially marched up to the doors of the US Supreme Court to request that the American judges most supreme intervene in the long running 'Stairway To Heaven' song-theft case. Allowing the most recent ruling on that matter to stand would be, the estate reckons, "a disaster for the creatives whose talent is often preyed upon"... [READ MORE]|
US Supreme Court asked to intervene in 'Stairway To Heaven' copyright dispute The estate of the late Randy Wolfe has officially marched up to the doors of the US Supreme Court to request that the American judges most supreme intervene in the long running 'Stairway To Heaven' song-theft case. Allowing the most recent ruling on that matter to stand would be, the estate reckons, "a disaster for the creatives whose talent is often preyed upon".
A quick recap. The estate of Randy Wolfe, aka Randy California, first sued Led Zeppelin in 2014. They said that the band's 'Stairway To Heaven' ripped off an earlier song called 'Taurus', which Wolfe had written for his band Spirit. But in 2016 a jury ruled that, while it may be true that Led Zepp members had heard 'Taurus' before writing 'Stairway', the two songs were not - in fact - similar enough to constitute copyright infringement.
The estate then took the matter to the Ninth Circuit appeals court criticising various decisions made by the judge in the original jury trial. The appeals court initially concurred with the estate and ordered a retrial. But then it reconsidered the matter en banc - with more judges involved - and that time decided that the original ruling in Led Zepp's favour should stand.
Which is why the estate now wants the Supreme Court to get involved. In a filing to the top court earlier this month, the estate says that the Ninth Circuit made two mistakes in its second ruling, the first relating to what elements of a song enjoy copyright protection, the second regarding what constitutes originality under copyright law.
The first of those bugbears relates to the idea that, in the US, a song is only protected by copyright in the form that it was filed with the US Copyright Office. That's an issue for older songs, because it used to be that only sheet music could be filed when a song was registered, not a recording of said song. And sheet music doesn't always represent all the elements of a song as it appears in its original recording.
In this case - and others - some or all of the the elements that one song is accused of ripping off from another are contained in the original recording but not the original sheet music. Therefore, the Wolfe estate argues, this idea that only the song as contained in the sheet music should be protected is a bad idea that should be rejected. And this month's legal filing opens with a rather novel critique of that concept.
The filing states: "1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926, 1927, 1928, 1929, 1930, 1931, 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943, 1944, 1945, 1946, 1947, 1948, 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 represent the 106 years that the courts of this nation recognised that musical works were protected as created and fixed in a tangible medium under the Copyright Act of 1909 - and that the deposit requirement was a technical formality".
"In those 106 years", it goes on, "not one copyright trial was limited or controlled by the deposit, which was usually an incomplete outline of the song. The Ninth Circuit's en banc decision, holding that only paper sheet music deposits have copyright protection under the 1909 Act, will likely divest hundreds of thousands of songs of copyright protection".
On the originality point, the issue relates to when you have common musical elements not protected by copyright that have then been employed and a arranged in a specific way. While the common elements themselves are not protected, could the arrangement have protection? The Wolfe estate reckons it could, and - they argue - so did US copyright law, until the Ninth Circuit ruling.
Citing the 1991 Supreme Court case Feist Publications v Rural Telephone Service Co, it states: "Originality is a constitutional requirement for copyright protection, but is an extremely low bar. Selection and arrangement allows for the protection of combinations of otherwise unprotectable elements as long as the combination is original. Both concepts have widely and faithfully been applied since Feist by all the courts of appeal".
"The Ninth Circuit's en banc opinion, however, redefined originality", it argues on, "significantly heightening the requirement in contradiction to Feist. It also held that selection and arrangement is not a necessary instruction for the extrinsic test".
Should the Ninth Circuit, the estate asks, be allowed to "fundamentally alter wide swaths copyright precedent regarding the extrinsic test - namely originality, and selection and arrangement - in a way that directly challenges binding Supreme Court precedent to the contrary?"
Urging the Supreme Court to now intervene, the estate seeks to present this not as a dispute between fellow artists, but as a battle between the creator and the corporates of the entertainment business.
Employing emotive language, the legal filing states: "The [Ninth Circuit] opinion is a disaster for the creatives whose talent is often preyed upon. By the same token, it is a gift to the music industry and its attorneys - enthusiastically received - by a circuit whose own judge once observed: 'Our circuit is the most hostile to copyright owners of all the circuits'".
"The 'court of appeals for the Hollywood Circuit' has finally given Hollywood exactly what it has always wanted: a copyright test which it cannot lose. Portending what is to come, in the days following the decision's filing multiple major copyright rulings have already dramatically favoured industry defendants. The proverbial canary in the coal mine has died; it remains to be seen if the miners have noticed".
Of course, there are plenty of artists and songwriters at all levels who believe the 'Stairway' ruling was the right ruling, having previously been concerned about the precedent set in the big 'Blurred Lines' song-theft case, and the impact it could have not only on the corporate exploitation of music rights, but also the creative process.
Those music-makers - as well as record labels, music publishers and music lawyers - will now all be watching with interest to see whether the Supreme Court agrees to hear the big 'Stairway To Heaven' copyright case.
Three men arrested for allegedly bribing or intimating R Kelly's victims
The arrests come as Kelly awaits trial in multiple states over numerous allegations of abuse in relation to numerous women. The musician has been repeatedly refused bail, partly because of claims that he sought to tamper with witnesses the last time he faced criminal charges of sexual abuse in the mid-2000s.
The three men arrested this week are Richard Arline Jr, Donnell Russell and Michael Williams, all of whom have connections to Kelly in one way or another.
Arline is accused of trying to bribe one alleged victim by offering up to $500,000 if she declined to cooperate with prosecutors. Russell is accused of threatening to release sexually explicit pictures of another victim if she continued to cooperate. And Williams is accused of seeking to intimidate another victim by setting fire to a vehicle parked outside a Florida property where she was staying.
Confirming the arrests had been made, Peter C Fitzhugh of US Homeland Security said: "These crimes shock the conscience. The men charged today allegedly have shown that there is no line they will not cross to help Kelly avoid the consequences of his alleged crimes - even if it means re-victimising his accusers. These acts not only fly in the face of human decency, they insult the very rule of law".
Meanwhile acting US Attorney Seth DuCharme stated: "The defendants are separately charged with engaging in multiple crimes that were intended to undermine and subvert the integrity of the criminal justice system and victimise the women who have come forward with serious allegations of criminal conduct against the defendant R Kelly. Efforts to illegally influence pending federal cases, whether through threats of violence, intimidation, damage to property, or payments to buy a potential witness's silence, will not be tolerated".
However strong the cases maybe against Arline, Russell and Williams, R Kelly insists that he had no involvement in their alleged activities. His legal rep Steve Greenberg told Vulture: "Kelly has nothing to do with this - nothing to do with it at all. He's never reached out to a witness, he's never tried to intimidate a witness".
NMPA boss hopeful streaming rate increases will stay despite appeals court forcing a review
An appeals court in Washington last week confirmed it was forcing the CRB to reconsider its most recent review of the rates paid by streaming services under the compulsory licence that covers the mechanical copying of songs in the US.
That review, of course, increased the basic rates for streaming, ultimately pushing the percentage share of streaming revenue allocated to the song from 10.5% to 15.1% over a number of years, which equates to a 44% increase overall.
A number of streaming services appealed that CRB ruling, resulting in last week's appeals court decision ordering the rethink. The full details of that decision have now been published, and - as expected - most of the criticisms contained within it relate to the process the CRB went through, rather than the specific changes it ultimately made.
There is also specific criticism of how the CRB dealt with a thing called the 'total content cost', a separate royalty metric that co-exists with the percentage-of-total-revenue rates.
With that in mind - while the music publishers remain furious with Spotify et al for forcing any kind of review - NMPA boss David Israelite was keen to stress in a statement to media that the appeals court "supported the rate increase granted by the CRB to music publishers and songwriters, agreeing that writers have been underpaid [to date]".
Noting some of the specific aspects of the original CRB ruling that the appeals court said required better explanation, Israelite added "we believe these things are easily done by the CRB". And he again stressed that those complexities, and the issues raised with the 'total content cost', have "nothing to do with the 44% rate increase".
He then stated: "We are heartened that the court understands and supports the fact that songwriters are grossly underpaid by streaming services. It is shameful that Spotify and Amazon have now spent millions of dollars – money which could've been paid to songwriters – on attempting to deny them a raise based on technicalities".
Over on the other side of the debate, the trade body for the digital firms - the Digital Media Association - told Law360: "Despite our differences, publishers, songwriters and streaming services deserve a fair hearing, and we thank the court for its work".
While the now impending re-review of streaming royalties by the CRB may be mainly dealing with rather tedious complexities - and may well not impact on the basic rate increase - with the streaming services, and Spotify in particular, under increased fire from songwriters and some artists, we can expect said re-review to create some real PR headaches for the digital services.
Taylor Swift has another go at shaking off 'Shake It Off' lyric theft action
This all relates to one of the 'Shake It Off' song-theft lawsuits. The one in which Sean Hall and Nathan Butler accused Swift of ripping off their 2001 song 'Playas Gon Play' on her 2014 hit in which, of course, she sang that "the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate".
In 2018, a US district court judge dismissed Hall and Butler's lawsuit on the basis that the fact of players playing and haters hating was all too "banal" for the duo's 2001 lyric "the playas gon play/them haters gonna hate" to enjoy copyright protection in isolation.
But the duo took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion, adding that Hall and Butler had "plausibly alleged originality" and therefore had a sufficiently strong case for the lawsuit to proceed to a full hearing.
Which means the whole thing is back with the district court, hence why Team Swift are having to re-file their arguments for why 'Shake It Off' definitely did not infringe any lyrics from 'Playas Gon Play'.
Among other things, Swift's lawyers argue that when an idea and the expression of that idea are inseparable, the expression can't be protected by copyright, because that would mean the idea was also protected by copyright, and copyright doesn't protect ideas.
The idea here being that players are going to play and haters are going to hate, and the expression of that idea being "the playas gon play/them haters gonna hate".
"Plaintiffs admit that 'players play' and 'haters hate' are each commonplace phrases", says the new legal filing, "but plaintiffs allege they are the first to 'combine playas/players playing along with hatas/haters hating' to 'describe two separate people – one playa who engages in playing and one hater who engages in hating'".
"However", it goes on "the idea of one player who engages in playing and one hater who engages in hating is inseparable from the allegedly copied words, namely players play and haters hate".
It then adds: "Here, the only similarity between plaintiffs' lyric ... and 'Shake It Off's lyric ... is the unprotectable idea that players play and haters hate".
So, there you go, the banality of players playing and haters hating may not be sufficient to kick out Hall and Butler's copyright claim through summary judgment, but seeking protection for a phrase that equates to wanting exclusive control of a mere idea is. Or so reckons Team Swift. We await to see how Hall and Butler respond.
Simon Mayo to present new album-centric show on Greatest Hits Radio
The media firm says that the new weekly programme "will celebrate the good times and great memories albums represent and will play their greatest hits alongside rediscovering musical gems within iconic albums".
Mayo himself says: "Three hours of great album music will be a Sunday treat for me. I hope it will reconnect you to a time when your album collection was the most important thing in your life. It said who you were. By the time we come off-air, you'll want to listen to them all again!"
Meanwhile Content Director at Greatest Hits Radio, Andy Ashton, adds: "It's incredibly exciting that Simon Mayo is joining our already world class line-up as the network expands across the UK. Greatest Hits Radio is all about the music, and we can't wait to hear Simon sharing his passion for albums and all the greatest hits they hold with our audience".
The new Mayo show will air each Sunday afternoon from 6 Sep.
AIM Awards presented
Because, yes, while there were many innovations in play as a result of the awards ceremony having to take place in the virtual world, organisers still nevertheless remembered to hand out some prizes.
And those prizes, in case you wondered, were distributed as follows...
UK Independent Breakthrough: Moses Boyd
Best Independent Album: Sarathy Korwar – More Arriving
Best Small Label: Speedy Wunderground
Innovator Award: AJ Tracey
Warner Chappell in the UK has signed a worldwide publishing deal with DJ/producer Nathan Dawe who is currently having chart success with his track 'Lighter'. Needless to say, Head Of A&R Amber Davis is "delighted".
Another day another Hipgnosis deal. Yes, another one! The Hipgnosis Songs Fund has acquired the royalty rights of music producer Ernest 'Dion' Wilson, aka No ID. "The words No ID are a stamp of excellence on any album", says Hipgnosis boss Merck Mercuriadis.
Warner Chappell in the US has signed a publishing deal with country singer Thomas Rhett. He thinks the deal is "really cool". Yeah, maybe.
The Music Venue Trust has announced seven new artist patrons who have pledged to support and advocate on behalf of grassroots venues in the UK, they are: Michele Stodart, James Bay, Ed Harcourt, Sam Duckworth, Ferris & Sylvester, Ren Harvieu and Roachford
EDUCATION & EVENTS
More speakers have been announced for the International Festival Forum, which will this year take place online as the Interactive Festival Forum. Former music chief at talent agency WME Marc Geiger will keynote, he having recently made a gloomy prediction that live music won't return to normal until 2022. Other speakers include agents Alex Hardee, Maria May, Peter Elliott and Matt Bates, and, on the festivals side, Jim King and Arnaud Meersseman from AEG Presents, Roberta Medina from Rock In Rio, Martin Elbourne from Glastonbury and The Great Escape, Fra Soler from Primavera Sound, and Tamas Kadar from Sziget. Info here.
A new Idles single from their upcoming album 'Ultra Ono'? Yeah, what of it? It's called 'Model Village' and has a video created in partnership with WeTransfer, obviously.
Will Joseph Cook will release his second album 'Something To Feel Good About' on 27 Nov via Bad Hotel. If that seems like an awful long way away and you'd quite like something to feel good about a bit sooner, well here is the title track.
Emmy The Great has posted new single 'Mary', which will feature on her new album 'April / 月音' when it's released by Bella Union in October.
Yves Tumor has posted a new lyric video for the track 'Strawberry Privilege', which appears on the recent album 'Heaven To A Tortured Mind'
GIGS & TOURS
Having been unable to play any festivals this summer, Placebo have announced that they will instead post to their YouTube channel recordings of festival sets from the past, going all the way back to a performance at the good old Phoenix festival in 1996. That one will be uploaded tomorrow, with additional recordings going live each Friday through to mid-September.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Reelz TV sues Instagram over its Reels
"Unless stopped, Facebook and Instagram's pervasive use of 'Reels' will completely swamp the distinctive brand identity that plaintiffs have built up for their own, pre-existing 'Reelz' media services". That's what.
"Defendants' use of 'Reels' usurps the goodwill embodied in the 'Reelz' trademarks and is likely to confuse consumers. Indeed, at least one major publication has already mistakenly referred to 'Reelz' and included a link to the Reelz [TV] Facebook page, in an announcement meant to refer to defendants' infringing use of 'Reels'".
Oops. That major publication, by the way, was Forbes. But anyway, yes, Reelz is suing Facebook and its Instagram Reels set-up for trademark infringement. So that's fun isn't it? Let's all make annoying ten second videos about it and share them with all our friends on Reelz. Sorry, I mean Reels. See, easy mistake to make!