|FRIDAY 11 JUNE 2021||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The Musicians' Union and Incorporated Society Of Musicians said yesterday that they were "extremely disappointed" that David Frost - formerly the UK government's chief Brexit negotiator and now Minister Of State at the Cabinet Office - chose to bail on a hearing being held by the culture select committee in Parliament, where he was due to answer questions on what, exactly, the government is doing to address all the post-Brexit issues facing touring musicians... [READ MORE]|
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UK's Brexit negotiator criticised over no-show at Parliamentary session on the bureaucratic barriers faced by touring musicians
The UK's post-Brexit trade deal with the EU, negotiated by Frost, failed to include any provisions to ensure that British artists could continue to tour Europe without facing any new bureaucracy at the border. That means that, when COVID restrictions lift, performers will be subject to different rules in different EU countries. In some cases that means no new bureaucracy to navigate, but in others artists will need to secure travel permits and/or carnets for their equipment.
Most people agree that the costs and hassle caused by those new requirements will make European tours unviable for many artists, just as the live revenue stream comes back online post-COVID. Various UK ministers - including Prime Minister 'Boris' Johnson - have conceded that the new bureaucracy is a major issue that needs to be addressed, and at various points have issued statements to the effect that they are addressing it. Although so far they seem to be mainly addressing it by issuing statements insisting that they are addressing it.
Given Frost's unique knowledge of the negotiations that led to the post-Brexit trade deal, music industry reps were pleased when the Digital, Culture, Media & Sport select committee in Parliament announced in April that the cabinet minister would answer MPs' questions on this issue on 10 Jun. At the time the committee said Frost would be asked "what the government is doing to avoid 'irreparable damage' to the performing arts sector and related businesses".
But then, yesterday - with political tensions mounting between the UK and the EU as British ministers continue to rail against treaty terms they previously championed - Frost pulled out of the culture select committee session.
The chair of the select committee, Julian Knight MP, was not impressed. He said in a statement: "Parliamentary scrutiny in front of select committees is of crucial importance in our democratic system and is particularly important when we have a government with a majority [of seats in the House Of Commons] of over 80".
Knight then noted that Frost is in government - and has a seat in Johnson's cabinet - as a member of the appointed House Of Lords, not an elected MP. This reduces the scrutiny Frost faces from MPs on a day-to-day basis. "Ministers in cabinet from the Commons have scrutiny due to questions, urgent statements and departmental questions", Knight said. "They are accountable every day. It isn't acceptable for Lords not to be accountable when they hold high office".
With the committee itself stating that can be "no acceptable reason" for Frost bailing on a rescheduled hearing later this month, Knight concluded: "I and this committee look forward to Lord Frost joining us at the rearranged date and we will not truck any further cancellation".
Responding to Frost's no-show, the MU and ISM said in a statement: "Given the impact of Brexit on musicians' touring prospects and livelihoods, and the confusion which still surrounds the implications of the UK-EU trade agreement for the music industry, it was hoped that this select committee session would throw some much-needed light on the subject".
"The scrutiny of the DCMS Committee, who are well-versed in problems raised by musicians and music industry campaign groups, would have been very welcome. To date, Lord Frost has also declined to meet with MU and ISM representatives to discuss the impact of Brexit on musicians".
ISM boss Deborah Annetts added: "As Lord Frost is at the heart of negotiations, his absence deprives MPs of a vital opportunity to find out what the UK government is doing to make sure the music sector is not destroyed by Brexit. Lord Frost must urgently schedule a new appearance to answer the select committee’s questions, to prevent further harm to the UK's creative industries".
While MU General Secretary Horace Trubridge stated: "Since the beginning of the year we have been promised that a deal would be done to remove the enormous barriers that musicians are now facing when performing in EU member states. We have become tired and frustrated by the empty promises from ministers, and the PM himself, but we were pinning our hopes on this meeting and a subsequent breakthrough".
"What has become starkly clear", he added, "is that this government cares not a jot for the UK creative industries, either at home or abroad, and the treasury will pay a heavy price in the future if ministers don't wake up and realise that they are squandering the future prospects of one of this country's most precious assets".
Although the culture select committee wasn't able to discuss what solutions the government is pursuing regarding post-Brexit touring - given Frost's absence - it did hear further testimonies from the music industry on just how big a problem has been created by the lack of touring provisions in the UK/EU trade deal.
Craig Stanley, a promoter, agent and tour producer with Marshall Arts, explained how - in addition to the challenges faced by artists - the new bureaucracy will have double the consequences for production crews and companies in the UK.
If British artists are unable to tour, crew members will lose work obviously. However, British production crews and companies also traditionally work with international artists when they are touring Europe, especially American acts. But if using British crews and suppliers on European tours requires a whole load more bureaucracy, promoters of those shows will look for talent elsewhere in the EU.
According to the BBC, Stanley explained: "American acts, when they come over, the vast majority of the time, take on British staff and use British equipment 85 to 90% of the time". But with the extra bureaucracy costs that will now be incurred by going that route, "they will start to move to Schiphol, to Frankfurt, to warehouses in the middle of Germany, and take on the gear there, and all of that will be lost".
A statement from Elton John - one of the few members of the music community who has managed to get a meeting with David Frost - was also read out during the select committee hearing, with the musician subsequently posting his message to MPs onto Instagram.
He said: "We are currently in grave danger of losing a generation of talent due to the gaping holes in the government's trade deal. New and emerging artists will be unable to tour Europe freely - an essential part of their education and development - due to the prohibitive costs of visas, carnets and permits".
"However", he went on, "despite this looming catastrophe, the government seems unable or unwilling to fix this gaping hole in their trade deal and defaults to blaming the EU rather than finding ways out of this mess. The situation is already critical and touring musicians, crews and support staff are already losing their livelihood".
He concluded: "During our meeting Lord Frost said trying to solve this issue is a long process. Unfortunately our industry doesn't have time. It is dying now. The government have broken the promise they outlined in 2020 to protect musicians and other creative industries from the impact of Brexit on tours to Europe. They now need to find solutions in both the short and long term to ensure the UK music industry continues to thrive".
Joe Biden cancels Donald Trump's TikTok ban, but China-owned app still being scrutinised by US officials
While still going through the motions as America's supposed President, Trump issued two executive orders against TikTok and its Chinese owner Bytedance last August. The first banned US citizens and businesses from transacting with the company, the second ordered the TikTok owner to divest its American assets. Both orders were based on concerns that, because Bytedance is a Chinese company, the Chinese government has access to TikTok’s global audience and user-data.
Both executive orders came into force last year, but TikTok remains Chinese owned and continues to operate in the US unhindered. That was partly due to legal action, by both Bytedance itself and some TikTok users. Trump's executive orders used powers granted to the President by America's International Emergency Economic Powers Act, but Bytedance and the TikTokkers pointed out that that act has limitations when it comes to "personal communications" or the sharing of "informational materials".
On that basis, they argued that Trump's orders were an overreach of the President's powers under the IEEPA. Judges reckoned those arguments had merit so temporarily paused the TikTok ban. Team Trump appealed those rulings, but when Joe Biden took over the presidency he asked the courts to halt the legal proceedings while his team reviewed his predecessor's orders.
Concurrent to that, Bytedance said that it was looking into bringing US investors into the TikTok business. There was talk for a time of a complete sell off of TikTok within the US, though in the end the proposal was that American companies Oracle and Walmart become shareholders, and that they take responsibility for ensuring that the TikTok app was being super responsible with all the user-data it gathers. That proposal then went to the White House to see if it would address Team Trump's concerns.
Given that some reckoned Trump's executive orders against TikTok - and other big Chinese apps like the Tencent-owned WeChat - were mainly about ramping up the anti-China rhetoric in the run up to last year's presidential election, it was thought that Bytedance et al would have an easier time once Biden was in charge.
Although, concerns about popular China-owned apps being used within the US - and to what extent the Chinese government has control over content on those apps and access to data gathered by them - have been expressed on all sides of the political spectrum in Washington. And while a new executive order issued by Biden on Wednesday cancels Trump's TikTok and WeChat bans, it also puts in place a new security review that will now be applied to both apps.
Biden's new order states: "The increased use in the United States of certain connected software applications designed, developed, manufactured, or supplied by persons owned or controlled by, or subject to the jurisdiction or direction of, a foreign adversary [like China] continues to threaten the national security, foreign policy, and economy of the United States".
Therefore, it adds, "the federal government should evaluate these threats through rigorous, evidence-based analysis and should address any unacceptable or undue risks consistent with overall national security, foreign policy, and economic objectives, including the preservation and demonstration of America's core values and fundamental freedoms".
Government sources told the Washington Post that Team Biden want a more "robust" system for reviewing the risks posed by apps owned by Chinese companies, which also takes into account the concerns expressed in the US courts about Trump's executive orders.
That review, to be led by the country's Commerce Department, could still result in challenges for TikTok et al, though possibly extra obligations and requirements to protect the data of American users, rather than an all out ban.
Bytedance is yet to comment on the new executive order, but the cancelling of the TikTok ban was welcomed by the American Civil Liberties Union, which argued that Trump's orders violated the free speech rights of American TikTok and WeChat users under the US First Amendment.
The Union's Ashley Gorski told reporters: "President Biden is right to revoke these Trump administration executive orders, which blatantly violated the First Amendment rights of TikTok and WeChat users in the United States. The Commerce Department's review of these and other apps must not take us down the same misguided path, by serving as a smokescreen for future bans or other unlawful actions".
Wednesday's executive order doesn't actually affect Trump's separate order that Bytedance offload its US assets. The Chinese company's previous proposals regarding a deal involving Oracle and Walmart went to the Committee On Foreign Investment In The United States for consideration, and that considering is still seemingly ongoing.
Independent music now makes up more than a quarter of all UK music consumption
Based on what they call Album Equivalent Sales - so actual sales of albums in physical and download formats, mashed up together with all the streams into a confusing mess - independent music counted for 26% of all consumption in 2020. While the consumption share of indies in streaming is also increasing, it is physical sales that have really boosted the numbers. On vinyl, independents had a 35% share of AES, with 30% on CDs - and there are signs that those figures will increase again this year.
"The independent community lies at the heart of our vibrant music scene, consistently innovating to make the UK a dynamic and competitive incubator of diverse new talent", says BPI boss Geoff Taylor. "Indie labels and their artists are harnessing the global reach of streaming, introducing new models for artist/label partnerships, and are playing a key role in the revival of vinyl and resilience of CD. They help to ensure the music industry is teeming with creativity, and that fans and artists have more choice than ever".
Paul Pacifico, CEO of AIM, adds: "Independent music businesses are the home of innovation and experimentation in the UK music industry. Our community of creative entrepreneurs keeps music moving forwards. As streaming offers consumers ever more opportunity to discover and enjoy diverse and eclectic music, it is no wonder that independent market share continues to grow, even in the face of industry consolidation".
Among the other stats announced today, the BPI also revealed that - with the vinyl revival continuing its upward trajectory - physical sales are becoming ever more important in getting records to number one in the charts. Which has been true for a while, but is more true than ever today. Meaning that, once streaming and physical sales data are shoved together for chart compiling purposes, it's usually the latter that pushes albums to the top of the list.
"2021 is on its way to becoming a particularly strong year for CDs and vinyl, with eighteen out of the year's 22 number one albums so far boasting a physical sales majority", says Drew Hill, MD of Proper Music Distribution. "It's clear fans appreciate choice, and the different roles that streaming and physical play – discovery v tangible ownership – are proving to complement each other well".
The combining of streaming and physical sales data is always a bit complicated, of course, and the fact that physical sales gets you the number one is at least partly down to the metrics employed as the chart is compiled. But the point is that, for the vast majority of albums that have topped the charts this year, when streaming and physical data is merged, more than 50% of chart eligible consumption came from physical sales. Usually more than 60%. Sometimes 80%.
That's not all down to the good old vinyl revival though. There are other physical formats remember. Don't forget that before you go and write off MiniDiscs completely. OK, maybe MiniDiscs didn't make up that big a percentage of sales. I bought a MiniDisc this year though. So, see, it's starting! The MiniDisc revival is going to happen! Stayed tuned for those big MiniDisc stats once 2021 is over.
But for some of the artists who got to number one on the back of physical sales in 2020, that mainly meant CD sales. In fact, for Barry Gibb and Tom Jones, 81% of their combined consumption tally came from compact discs. And even for younger acts like Rag N Bone Man, You Me At Six, Celeste, Bring Me The Horizon and Tom Grennan, CDs made up more than half of their respective tallies.
Though, if all this mashing together of streaming and sales data is hurting your head, let's move things along to something more fun like the big old cassette revival. More than 150,000 cassettes were sold in 2020, remember.
OK, maybe that doesn't sound like much of a revival. But that's approximately 150,000 more cassettes being sold than you would have expected a decade ago. For Bring Me The Horizon, cassettes counted for 10% of their overall chart consumption tally, while for Lana Del Rey it was nearly 20%. I mean, what?
If you're enjoying the chart consumption stat headache this article has induced and would like to ramp it up to a full on migraine, you can get every single stat you could ever need in the latest edition of the BPI's All About The Music report. Which, appropriately, is now out in physical form. Though not on MiniDisc. Which is no fun.
Live industry warns against delayed reopening, calls on government to release Events Research Programme findings
The study claims that over 5000 shows will have to be cancelled or postponed if the reopening of full capacity events is pushed back from the original 21 Jun target date. It also says that 248 grassroots venues are at immediate threat of eviction.
LIVE argues that delaying live music's full return is unnecessary, as the government's own research - through its Events Research Programme - confirms that the risk of transmission of COVID-19 is minimal at full capacity shows, so long as certain logistical measures are employed.
A group of live industry reps are now calling on the government to publish its findings from the Events Research Programme in full, so that the industry can implement necessary changes in order to reopen full capacity shows this month, as originally planned.
LIVE CEO Greg Parmley says that pushing back the lifting of COVID rules would leave the live sector in limbo, and force the cancellation of numerous large scale events "that the public are so looking forward to after a year of cancellations".
He adds: "By its own evidence from the Events Research Programme ... large scale events can happen safely with the right precautions in place. The government must now follow its own science if it is to avoid the decline of the UK's world-leading live music industry, which absolutely cannot afford to miss out on another summer of cancelled events after a year on pause".
Joining LIVE in its call for the government to allow live music to fully return this month are reps for the National Arenas Association, the Music Venue Trust, and promoter AEG Presents.
"The pilot shows at the BRITs and [in] Liverpool [as part of the Events Research Programme] were touted as the key to getting back to full capacity live performance, which is why it's extremely frustrating that the government refuses to publish the full report and allow the sector to open up through the carefully planned precautions which are currently waiting in the wings", says Lucy Noble, Chair of the National Arenas Association. "We implore the government to follow their own scientific data that proves live events are safe with the right mitigations. Now is the time for them to protect the live events sector for generations to come".
Mark Davyd, CEO of MVT, adds: "In the event of any delay to reopening, government action to restore confidence to the sector will need to be swift, decisive and comprehensive. Any decision to delay places the sector in the most perilous and uncertain situation since April 2020. All that has been done by government, the public, artists and communities to save our venues risks being undone".
Meanwhile, James King, CEO of European Festivals at AEG Presents, says: "A delay into July without a clear roadmap [for when COVID restrictions will lift] puts an impossible strain on all festivals, including AEG's All Points East Festival, along with our suppliers across the industry. We cannot keep waiting indefinitely without knowing when [restriction lifting] will take place, and this uncertainty will undoubtedly result - by default - in more cancellations. We are desperate for the UK festival season to begin again, but an undated reopening makes long term planning and investment unfeasible".
British Prime Minister 'Boris' Johnson is expected to hold a press conference to announce plans to delay the lifting of restrictions - due to concerns over the spread of the new delta variant of COVID-19 - on Monday.
Attitude Is Everything launches accessible reopening checklist for venues and festivals
"The ten point Accessible Reopening Checklist is designed to help any venue or event get ready to welcome back deaf and disabled people", says AIE founder Suzanne Bull.
"It's free and easy to use, so there's no reason for promoters, venue managers and event organisers not to embrace and implement this checklist. Deaf and disabled people are artists, employees, volunteers and fans, and they're looking forward to returning to an inclusive world of sports, arts and culture. You'd better get ready!"
In which case, we'd better have a look at this plan. The ten things that venues and promoters need to commit to are as follows...
Commenting on the checklist, Chair of the Diversity & Inclusion Group at live industry trade body LIVE, Jane Beese, says: "When live music returns, it's imperative that all audiences are able to head back into venues as quickly and safely as possible. This checklist is a great reminder of the needs of deaf, disabled and neurodivergent people".
Meanwhile Beverley Whitrick, Strategic Director at the Music Venue Trust, adds: "Music Venue Trust is pleased to see that Attitude Is Everything continues to provide guidance and awareness raising about access issues that are practical but also acknowledge that not everyone might have this in place. The Accessible Reopening Checklist helps identify areas that might need further work so we will be sharing this within our grassroots music venue community".
AIM Awards nominees announced
Says Parks: "What an honour to be nominated for four AIM Awards. This is far beyond my wildest dreams and I'm so glad my work has reached this far and touched so many, especially in these tumultuous times".
Say Working Men's Club: "It's a real honour to be nominated for three AIM Awards, many thanks to AIM and to everyone that has backed our record. We can't wait to be back out playing in front of real people as soon as possible".
The awards will be livestreamed on 25 Aug. Here are all the nominees...
Best Independent Track: Arlo Parks - Hope (Transgressive Records), Bonobo & Totally Enormous Extinct Dinosaurs - Heartbreak (Outlier - Ninja Tune), Enny - Peng Black Girls feat Amia Brave (FAMM), Katy J Pearson - Take Back The Radio (Heavenly Recordings), Lava La Rue - Magpie (Marathon Artists), Mustafa - Air Forces (Young), serpentwithfeet - Fellowship (Secretly Canadian), Shygirl - TASTY (Because Music), Squid - Narrator feat Martha Skye Murphy (Warp Records), Tkay Maidza - Shook (4AD)
Best Independent Album: Arlo Parks - Collapsed in Sunbeams (Transgressive Records), Che Lingo - The Worst Generation (7Wallace Music), Dry Cleaning - New Long Leg (4AD), Floating Points, Pharoah Sanders & The London Symphony Orchestra - Promises (Luaka Bop), Krust - The Edge of Everything (Crosstown Rebels), Moses Sumney - Græ (Jagjaguwar), Phoebe Bridgers - Punisher (Dead Oceans), Speaker Music - Black Nationalist Sonic Weaponry (Planet Mu), Rian Treanor - File Under UK Metaplasm (Planet Mu), Working Men's Club - Working Men's Club (Heavenly Recordings)
Best [Difficult] Second Album: AJ Tracey - Flu Game (Revenge Records), Bicep - Isles (Ninja Tune), Dream Wife - So When You Gonna... (Lucky Number), Fontaines DC - A Hero's Death (Partisan Records), Leon Vynehall - Rare, Forever (Ninja Tune)
Best Independent Remix: Songhoy Blues - Bon Bon (Mike Lindsay Remix) (Transgressive Records), Thundercat - Fair Chance feat Ty Dolla $ign & Lil B (Floating Points Remix) (Brainfeeder), Ela Minus - Megapunk (Elkka Remix) (Domino), P-rallel - Soulboy feat Greentea Peng(IZCO Remix) (Different Recordings), Sweat feat Liz (Sophie Remix) - Sonikku (Bella Union)
Best Creative Packaging: AJ Tracey - Flu Game (Special Edition) (Revenge Records), Figaro de Montmartre - Emotion Soap (Figaro de Montmartre), King Gizzard & The Lizard Wizard - Eco Wax Editions (Heavenly Recordings and Flightless Records), Sleaford Mods - Spare Ribs (Rough Trade Records), Working Men's Club - Working Men's Club (RAW Edition) (Heavenly Recordings)
Best Independent Video: Arlo Parks - Hope (Transgressive Records), Julien Baker - Hardline (Matador Records), Kojaque - No Hands (Different Recordings), Novo Amor – If We’re Being Honest (AllPoints), Wesley Joseph - Thrilla (EEVILTWINN)
UK Independent Breakthrough: Arlo Parks (Transgressive Records), Conducta (Kiwi Rekords), India Jordan (Ninja Tune), Rina Sawayama (Dirty Hit), Working Men's Club (Heavenly Recordings)
International Breakthrough: Bicep (Ninja Tune), Fontaines D.C. (Partisan Records), Jayda G (Ninja Tune), 박혜진 Park Hye Jin (Ninja Tune), Tkay Maidza (4AD)
One To Watch: Che Lingo (7Wallace Music), ENNY (FAMM), Lava La Rue (Marathon Artists), Nova Twins (Nova Twins Ltd), TSHA (Ninja Tune).
Best Independent Label: 4AD, Dead Oceans, Forever Living Originals, Partisan Records, Transgressive Records.
Best Small Label: Athens Of The North, Finesse Foreva, Killing Moon, Sonic Cathedral, Strut Records.
Indie Champion: Bandcamp, Love Record Stores
Diversity Champion: Paulette Long
Producer Robin Schulz has extended his deal with BMG and launched his own imprint Mentalo Music. "The extension of my publishing agreement puts an exclamation mark behind the satisfaction in terms of our collaboration and the establishment of the Mentalo Edition is a logical next step", he says.
Warner Chappell has signed Emma Jean Thackray to a worldwide publishing deal. "I'm delighted to sign to Warner Chappell ahead of the release of my first full-length album and as I enter into the next stage of my career", she says. "I never want to stay in one lane when it comes to my music and the team at Chappell encourage me to take risks and do what I feel is right. I'm looking forward to working together going forward".
Home fitness company Liteboxer has partnered with Universal Music, with the latter licensing some tunes for the former's Rhythm Technology equipment. "We all know working out is good for us, but the drudgery of getting on an exercise bike or heading out the door for a run keeps many of us from building healthy habits", says Liteboxer CMO Scarlet Batchelor. "Our partnership with UMG will offer a generation raised on gaming a fitness option that they actually want to do".
Megan Thee Stallion - adopting her Tina Snow alterego - is back with new single 'Thot Shit'.
You need to know that Doja Cat has released new single 'Need To Know'. Her new album, 'Planet Her', is coming next week. Don't know if you need to know that.
Lorde has released new single 'Solar Power', and announced that an album of the same name is on the way too.
You want more Lorde? Yeah, well, she provides backing vocals on the new single from Clairo, titled 'Blouse'. The song is taken from Clairo's second album, 'Sling', which is out on 16 Jul.
French Montana is back with new single 'FWMGAB'.
There's a new single from HER out, called 'We Made It'. She's also announced that her debut album, 'Back Of My Mind', will be out next week.
Marina has shared the video for 'Venus Fly Trap' from her new album 'Ancient Dreams In A Modern Land', which is out today.
It's about this time of year that people start calling their new singles the "song of the summer". In the case of Tebey and Una Healy, they've literally called their new single 'Song Of The Summer'.
CupcakKe has released new single 'Huhhhhh'. That's five h's. Six if you count the first. Don't forget that, whatever you do.
Machine Head have released a trilogy of new tracks: 'Become The Firestorm', 'Rotten' and 'Arrows In Words From The Sky'. "These three songs represent Machine Head better than anything I could ever try to explain", says the band's Robb Flynn. "The way these songs grew and took shape over time tells us our future is more exciting than even we would like to admit. Being able to corral all the chaos, pain, confusion, and, yes, hope into music has never made me feel more alive".
Jake Shears has released new single 'Do The Television'.
Upsahl has released new single 'Melatonin'.
Zeal & Ardor have released the video for recent single 'Run'.
Jinwoo has released new single 'Your Table'. He describes the song as "a weird mix of nostalgia, regret and looming responsibility", adding: "It's a lot about old relationships, in particular the relationships that can exist between men; friendship, brotherhood, love, jealousy and sex".
Avelino has released new single 'Waze'. He's also announced that he will release new album, 'Ego Kills', on 23 Jul.
Wuh Oh has released new single 'Daddio'.
Newly signed to Flying Nun, Vera Ellen has released new single 'You!'
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Judge erring towards dismissing Ice Cube's lawsuit against Robinhood
Ice Cube, you may remember, was not impressed when the financial services firm illustrated a story on its Robinhood Snacks news website with his picture and the caption "Correct yourself before you wreck yourself", a play on the lyric "You better check yo self before you wreck yo self" from the rapper's 1993 track 'Check Yo Self'.
The use of that photo and caption, Ice Cube argued, formally linked him to the Robinhood company, which had got itself all caught up in the big GameStop short squeeze story that got so much news coverage earlier this year. In his lawsuit the rapper said that he didn't want to be associated with "an unscrupulous and predatory conglomerate that professes to be a financial services company for the everyday person [but which is] in truth ... a wolf in sheep's clothing".
Given that Robinhood Snacks had properly licensed the photo of Ice Cube it used from the owner of the copyright in the image, the rapper sued on the basis that its use of the picture infringed his trademark and publicity rights. That, the judge hearing the case correctly noted in a hearing yesterday, requires the court to consider whether the use of the photo and caption in any way implied that Ice Cube was endorsing Robinhood's products.
Robinhood argues that its Snacks site is an editorial rather than commercial operation, so its use of the photo was editorial and not commercial. Ice Cube counters that the Snacks site is just a marketing tool for the rest of the Robinhood business, so its content is promotional.
Although the litigation raises questions around both free speech and publicity rights under US law, judge Laurel Beeler said yesterday that whether or not to grant Robinhood's motion to dismiss the case is entirely based on the implied endorsement question.
According to Law360, she said: "For me, it literally comes down to endorsement. If it is endorsement, then I think the plaintiff has a case. If it's not an endorsement, I think it falls".
Addressing Ice Cube's lawyer, she added: "This doesn't look like product [promotion]; this looks like illustration. And at least with the cases you cited me, if the only argument was endorsement, I have a tough time getting to standing, and that sort of ends the inquiry for me".
Beeler will now give further consideration to both sides' arguments before making a final decision.