|MONDAY 1 FEBRUARY 2021||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: A Californian court last week ruled that Apple boss Tim Cook must take part in a seven hour deposition as part of his company's ongoing legal battle with 'Fortnite' maker Epic Games. Apple had originally proposed that a zero hour deposition would be best... [READ MORE]|
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Apple boss Tim Cook ordered to submit to seven hour deposition in Fortnite legal battle
Epic, of course, has gone legal over Apple's App Store policies. Like other big app makers - Spotify in particular - Epic doesn't like being forced to take in-app purchases on iOS devices via Apple's commission-charging payment platform. It also objects to rules that ban app makers from sign-posting within their apps alternative payment options elsewhere on the internet.
Epic, Spotify and others argue that Apple's App Store policies breach competition law - something the tech giant strongly denies. It claims that the likes of Epic and Spotify just don't want to pay a fair rate for using the super-secure user-friendly payment system it's invested heavily into developing.
The legal battle between Epic and Apple is now actually underway in multiple countries, though the highest profile litigation is that being fought in the courts in California.
As part of its preparations for its Californian court battle, the 'Fortnite' maker wants to force Cook into a lengthy deposition - ie an out-of-court testimony delivered under oath - in order to question the Apple boss about his company's App Store rules, and the ins and outs of the tech giant's wider app-based business.
The famously secretive Apple is unsurprisingly not so keen on having its boss man questioned in this way. Apple originally argued against Cook taking part in a deposition at all. When it became clear it was unlikely to get its way in this domain, Apple proposed a four hour session. But last week magistrate judge Thomas S Hixson ruled that a seven hour deposition was justified given the complexities of the case.
According to Law360, the judge wrote: "The facts of the case go way beyond the historical facts of what happened and when ... there is really no one like Apple's CEO who can testify about how Apple views competition in these various markets that are core to its business model".
The decision was one of two setbacks Apple suffered in this dispute last week. Hixson also knocked back the tech giant's request that it be able to subpoena certain internal documents from Samsung.
The rival phone maker isn't involved in the legal battle but, Apple said, it wanted access to documents outlining how Samsung distributes 'Fortnite'. That's because it suspects its competitor has actually made similar decisions to Apple regarding that distribution.
However, Hixson declined to issue any such subpoena.
Label removed from Tekashi 6ix9ine sample lawsuit on jurisdiction grounds
Yung Gorden - real name Seth Gordon - sued 6ix9ine and the music rights companies he works with a year ago claiming that most versions of 2018 track 'Stoopid' open with a sample of a 'radio drop' he previously recorded for a company called Take Money Promotions. The inclusion of the radio drop on the track had not been cleared with Gorden.
The lawsuit stated that "plaintiff was never contacted by any of the defendants prior to the release of the song 'Stoopid' and all of the uses of plaintiff's work are and continue to be unauthorised and used without permission or consent".
"Accordingly", it went on, "by reproducing and distributing plaintiffs copyrighted material, defendants have infringed plaintiff's exclusive rights in the musical composition of the Yung Gordon intro".
However, one the music companies sued by Gordon, the aforementioned TenThousand Projects, sought to be removed from the litigation, arguing that the New York courts had no jurisdiction as it is based in California, and its record contract with 6ix9ine, real name Daniel Hernandez, is governed by Californian law.
Gordon's legal team argued that because TenThousand Projects worked with New York-based Hernandez, who is repped by a New York-based lawyer, the New York courts did have jurisdiction over the label.
However, the judge overseeing the case, Ann M Donnelly, did not concur. Citing previous precedent in the New York courts, she wrote: "TenThousand's contract with Tekashi 6ix9ine does not, by itself, establish that this court has personal jurisdiction over TenThousand. The parties entered into the agreement in California, and the agreement includes California venue and choice of law provisions".
For that reason, she ultimately concluded, "TenThousand's motion to dismiss the amended complaint ... for lack of personal jurisdiction is granted".
Woodstock settles with financial backer of anniversary edition that never happened
A 50th anniversary edition of Woodstock was planned for summer 2019, before cancelling festivals was the norm. So ahead of its time, Woodstock 50 was actually cancelled twice. And down-sized several times between the two cancellations.
The anniversary event began as a joint venture between the Woodstock company and marketing agency Dentsu. It was the latter that initially cancelled the event in April 2019 after it bailed on the project. The marketing firm expressed various concerns about the festival it was financially backing, not least that the licence secured for the event only allowed half the originally planned capacity.
However, it turned out that Dentsu wasn't contractually allowed to unilaterally cancel Woodstock 50. And the Woodstock company - including Michael Lang, one of the organisers of the original Woodstock festival - insisted that the 2019 special edition would go head.
There was then some legal wrangling between the Woodstock company and Dentsu, mainly as the former battled to access monies already committed by the latter. With the clock ticking, the legal problems became logistical problems as the festival's organisers missed payment deadlines and lost their venue in the process.
A proposed second venue ran into all sorts of licensing issues amid numerous objections from local residents, leading to a final proposal to shift the event to a new site nearly 300 miles away.
Ultimately, Woodstock 50 was properly cancelled. At the time organisers stressed that the cancellation was ultimately the result of "the unfortunate dispute with our financial partner and resulting legal proceedings [that] set us off course at a critical juncture".
Despite all plans for Woodstock 50 ultimately being abandoned, the dispute between the Woodstock company and Dentsu continued, ploughing on into 2020.
Seeking damages from its one-time backer over the cancelled event, last May the Woodstock company initiated an arbitration clause in its original agreement with Dentsu. Then the following month it filed a lawsuit with the New York Supreme Court.
According to Billboard, it now transpires that the dispute went before an arbitration panel last October, which ultimately found in favour of the Woodstock company, concluding that Dentsu breached its contract when it bailed on the festival.
The marketing firm then subsequently settled the lawsuit out of court. As a result of all that, Dentsu will pay the Woodstock company "an undisclosed settlement sum covering damages but not unrealised profits".
While the specifics of the settlement are not known, a spokesperson for Dentsu told Billboard simply that "the matter has been resolved to the mutual satisfaction of the parties".
And so, that brings to an end the eventful saga that was the 50th anniversary Woodstock festival that never happened.
Rod Stewart reaches plea deal over hotel altercation charges
According to reports at the time, the musician and his son Sean became involved in a fight after the Stewart family were refused entry to a New Year's Eve children's party at the hotel.
During the incident, Sean pushed and then Rod punched a security guard called Jesse Dixon. Stewarts senior and junior were then charged with battery, although they claimed that it was Dixon who started the scuffle.
With that in mind, the two men pleaded not-guilty to the misdemeanour charges last year, but were known to be working out a plea deal with prosecutors to avoid the case going to trial.
According to local paper The Sun-Sentinel, that plea deal has now been agreed. Terms of the deal are not known, but a trial will now seemingly be avoided.
Dissecting The Streaming Inquiry #06: Transparency
Based on the five years of research CMU Insights has undertaken with the Music Managers Forum as part of the 'Dissecting The Digital Dollar' project, we explain the background to the key debates, helping you navigate and understand each issue and the proposed solutions.
Alongside the digital pie debate we've already discussed, one issue came up time and again during the various interviews and debates that were undertaken as part of the 'Digital Dollar' project: the frequent lack of transparency regarding the inner workings of the streaming music business and the deals agreed between the services and the record labels, music distributors, music publishers and collecting societies.
Unsurprisingly, many of the groups representing artists, songwriters and managers raise the transparency issue in their submissions to the inquiry. As with the digital pie debate, there are actually different elements to the transparency debate here.
There's the need for more transparency around the basic business models being employed, especially with newer services that use music in different ways to Spotify-style services, like Facebook/Instagram, TikTok and Triller.
Then there's the need for more transparency around the specific revenue share agreements and minimum guarantees set out in each licensing deal, all of which are usually hidden from artists, songwriters and managers by non-disclosure agreements. And even from an artist's accountant who is trying to audit their client's royalties, and who can't - really - without that information.
And of increasing concern, there is the lack of transparency around the algorithms employed by the streaming services to push and recommend music. Do those algorithms skew towards certain artists or genres? And how can artists and labels influence said algorithms?
In its submission, the Ivors Academy writes: "It is true to say that for many creators and those who represent them, there is a real challenge in understanding the business models of the service providers and securing any sort of transparency regarding their income, costs and profits. What we do know is that the platforms seem to be getting wealthier and more powerful, while at the same time the number of streams needed to generate even the smallest amount of royalties to the songwriter or composer keeps increasing".
In its submission, the Incorporated Society Of Musicians states: "There is a lack of transparency around deal terms as a result of [streaming services] using non-disclosure agreements to suppress confidential commercial information. This is having a significant detrimental impact as it makes it impossible for musicians to know if they have been paid correctly for their work".
And in its submission, the Musicians' Union writes: "Streaming platforms license music from rightsholders and in general these deals include non-disclosure clauses, which make it impossible for creators, performers and their representatives to find out how much is paid overall in relation to the royalties they receive. Greater transparency is needed in order to assess the fairness of licensing systems".
The 2019 European Copyright Directive introduces a transparency obligation for labels and publishers, obliging those companies to provide certain kinds of information to artists and songwriters whose work they own or control regarding the exploitation of those works.
To what extent that new obligation will overcome the various transparency concerns outlined above remains to be seen. But - with the directive not being implemented in Brexit Britain - artist and songwriter groups reckon something similar should definitely be considered here.
The MU argues that all the principles of that directive relevant to music should be incorporated into UK law, but adds: "We believe that the wording of the European directive could actually be improved upon so it is more effective and practical to apply".
That includes incorporating into UK copyright law "transparency obligations for record labels, music publishers, streaming platforms and other licensing entities so that creators can effectively make use of their right to audit music companies they are signed to or who administer royalties to them. At present, it is very costly for artists to audit labels and it is ineffective because they are not able to gain access to details of licensing deals with platforms because of non-disclosure agreements".
The Ivors Academy is calling for specific regulation of large rights-owning music companies, principally the majors. Such regulation would include rules to force more transparency on those businesses.
"Many of the current practices and behaviour of the major music groups would not be tolerated in other industries subject to regulatory oversight", it states. "A code of conduct with ombudsman overseeing minimum standards of transparency should be embraced by the industry. The industry should have nothing to fear from such a requirement".
The Academy also notes that collecting societies have specific transparency obligations via another earlier EU directive. These rules "should be implemented in the UK for the work of major music intermediaries", it argues. "A code of conduct is required that sets out minimum standards of accountability and transparency".
The submission from the Music Managers Forum and Featured Artists Coalition echoes the concerns of the Ivors, MU and ISM. However, it also hones in on the specific transparency issues around the newer services, and especially those that agree initial deals with the labels, publishers and societies which are primarily based around a very large upfront advance payment.
"A particular problem is the lack of transparency around advances and lump sum payments from streaming platforms (such as Spotify or Apple) or social media services that use music (such as Facebook or TikTok)", it states.
With Spotify-style services, the advance is usually recoupable. Which means that the service reports usage on a monthly basis and calculates what would have been due to the label, publisher or society under its core revenue share agreement.
Those royalties are then deducted from the advance. Once the advance has been paid off, the label, publisher or society starts getting monthly payments again.
The main issue here is what happens if it turns out the advance was higher than what was actually due during the time period the advance covers. The label, publisher or society usually gets to keep the difference, and that sum of money is confusingly referred to as 'breakage'. The big question is: do artists and songwriters get a share of that over-payment?
Initially, there was a lack of transparency regarding breakage payments. However, ultimately, most labels and publishers did commit to share breakage with artists and songwriters. Although it wasn't always entirely transparent how that money was being shared out. Also, once a service gains momentum and can pay advances based on decent past usage data, the chances of their being significant breakage reduce somewhat.
The bigger concern now, MMF and FAC continue, is the new social media-type services that use music, where the advances work a little bit differently. "With some social media services that are still working out how they plan to actually use music", MMF and FAC explain, "the advance may be a one-off lump sum payment covering a set period of time".
In which case "no additional payments are made during that time period and what music has actually been streamed may not be reported". So how does that money get shared out with artists and songwriters? "There is no industry consensus on if and how that money is shared out, and what systems are employed are rarely communicated", MMF/FAC say.
They then make three specific transparency demands.
First, "labels, publishers and societies should, as a matter of course, explain in clear terms to artists and writers the structure of every deal they enter into with a streaming service which directly impacts its business relationship with each artist or writer".
Secondly, "where you have monies not directly linked to specific usage of music, they should clearly publish the method they are using to distribute that money, and communicate how those payments will be reported".
And finally, "an artist's accountant should, on request but subject to NDA, have sight of specific deal terms where that information is required to properly audit an artist's royalties".
MMF/FAC say that Parliament could codify some or all of these transparency obligations into copyright law. They also cite the copyright directive but agree with the MU that provisions in said directive could be improved upon.
Noting the transparency obligations in the directive, they write: "That article was very much a compromise that did not go as far as most artists, songwriters and managers would have liked, but it provides a basic framework for how copyright law reforms might address the issues around transparency".
You can follow all our full coverage of the Parliamentary inquiry into the economics of streaming via this CMU timeline here.
Sophie dies in "sudden accident"
According to reports, she climbed onto the roof of the three storey apartment block where she was living in Athens to view the full moon in the early hours of Saturday morning, but lost her footing and fell while trying to take a photograph.
In a statement, Sophie's record label Transgressive said on Saturday: "Tragically our beautiful Sophie passed away this morning after a terrible accident. True to her spirituality she had climbed up to watch the full moon and accidentally slipped and fell. She will always be here with us. The family thank everyone for their love and support and request privacy at this devastating time".
In his own statement, Transgressive co-founder Toby L said: "Every interaction with Sophie was insightful and soul-enriching. And she led the way for everyone. Today I say thank you for so many of the best conversations, nights and songs that I'll ever experience. Sophie, you pushed your artform, and us, forwards in magical, unrepeatable ways. For Transgressive to serve as a custodian of your work is the greatest of honours. I'll cherish the privilege, and you, forever".
First gaining attention as an affiliate of the PC Music collective, Sophie's breakthrough single, 'Bipp', was released through the Numbers record label in 2013. A compilation of early tracks, 'Product', was then released in 2015.
Previously working anonymously, Sophie used her voice and image for the first time on the single 'It's Okay To Cry' and its video. She also began to speak publicly about being transgender. That track was later included on her debut album, 'The Oil Of Every Pearl's Un-Insides', which was released through Transgressive and her own MSMSMSM label in 2018.
As well as her solo work, Sophie collaborated with and produced for numerous other artists, including Lady Gaga, Charli XCX, Arca, Kim Petras, Vince Staples, Gaika and Let's Eat Grandma. She also co-wrote Madonna's 2015 single, 'Bitch, I'm Madonna'.
Paying tribute, PC Music's Danny L Harle said: "Sophie was a truly holistic artist. Her influence is immeasurable and I'm honoured to have known her".
COVID-19 CANCELLATIONS & POSTPONEMENTS
The Coachella festival in California has again been pushed back due to COVID-19. Originally scheduled for April last year, the festival was postponed to October and then to April this year. The latest set of dates have now been pulled due to a public health order prohibiting it from taking place.
LABELS & PUBLISHERS
Sony Music has launched a new label, XXIM Records, as an imprint of its Masterworks division. It will work with experimental artists in genres such as neo-classical, post-rock and ambient. "The intersection of acoustic instrumentation and electronic sounds is presenting exciting new creative avenues for artists and attracting increasing numbers of fans around the world", says co-head of Masterworks, Per Hauber. Signings at launch include Eydís Evensen, Uèle Lamerore, Hugar and Stimming X Lambert.
Music distributor Ditto has launched a blockchain-powered decentralised finance (or de-fi) company, Opulous, to provide loans to musicians. "Musicians are often largely overlooked when it comes to traditional banking loans, or the terms are so unfavourable it isn't worth their time", says Ditto CEO Lee Parson. "Using de-fi, Opulous cuts out traditional banking, providing musicians a platform with minimal interest payments, while giving investors the chance to stake a claim in one of the most exciting and fastest growing financial industries in the world".
Music publisher Peermusic has appointed Matt Phipps-Taylor to the role of Chief Information Officer, replacing Jeff Witcher, who is retiring. He was previously Chief Data Officer at UK collecting society PPL. "His experience will be invaluable as we continue to develop neighbouring rights administration technology", says Executive Chair Mary Megan Peer.
Megan Thee Stallion has released a Joel Correy remix of her track 'Body'.
J Balvin, YG and Tyga feature on a new remix of 'Spicy' by Ty Dolla $ign.
Jpegmafia have released new single 'Fix Urself'. Their new EP, 'EP2', from which the track is taken, is out on 12 Feb.
Rob Zombie has released new single 'The Eternal Struggles Of The Howling Man'. The track is taken from his new album, 'The Lunar Injection Kool Aid Eclipse Conspiracy', which is out on 12 Mar through Nuclear Blast.
Kyary Pamyu Pamyu has released new single 'Gum Gum Girl'.
Desire have released new single 'Zeros'.
Årabrot have announced that they will release new album, 'Norwegian Gothic', on 9 Apr. From it, this is new single 'The Lie'.
FEMM have released new single 'Come & Go'.
Chad VanGaalen has released new single 'Samurai Sword'. His new album, 'World's Most Stressed Out Gardener', is out on 19 Mar.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Sea shanty reaches number three on UK singles chart
In a slight variation on the quote he has given to every media outlet over the last week or so (ie "I was postman, now this!"), Evans said: "It is absolutely amazing and so surreal. Never in a million years would I have thought I'd have gone from a postman to having a song sitting third in the charts in the space of two weeks. It's incredible!".
So that's nice. Fans of chart facts might also like to know that Evans' version of 'Wellerman' is the highest chart debut by a Scottish artist since 2011, when Emelie Sandé reached number two with 'Heaven'.
Another version of the song, by The Longest Johns, is now at number 52 in the chart, dropping from number 37 last week. It had previously entered the Top 40 on the back of the hype surrounding Evan's then-not-officially-released viral version.
Shanties are still no match for celebrity diary entries though, with Olivia Rodrigo's 'Drivers License' staying at number one in the UK singles chart for a third week. Sabrina Carpenter's response to that song, 'Skin', is also a new entry at 28.