THURSDAY 26 AUGUST 2021 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: Legal experts say that a new lawsuit filed by Spencer Eldon - who was the nude baby that appears on the famous cover of Nivana's 'Nevermind' album - could raise some very interesting questions regarding what constitutes 'child pornography' under US law, and more generally regarding the privacy rights of young children... [READ MORE]

TOP STORIES New lawsuit over 'Nevermind' album cover poses plenty of interesting questions
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DEALS FUGA announces deal with German label ONE Sights Music
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LABELS & PUBLISHERS TuneCore appoints Andreea Gleeson as its CEO
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LIVE BUSINESS Night Time Industries Association continues to pile on pressure over COVID Passports
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DIGITAL & D2F SERVICES Spotify rolls out new podcaster monetisation tools offering benefits many artists would like
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MEDIA New podcast to investigate harassment and abuse in the Australian music industry
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AWARDS AIM Awards presented
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AND FINALLY... Kanye West unveils Donda Stem Player
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New lawsuit over 'Nevermind' album cover poses plenty of interesting questions
Legal experts say that a new lawsuit filed by Spencer Eldon - who was the nude baby that appears on the famous cover of Nivana's 'Nevermind' album - could raise some very interesting questions regarding what constitutes 'child pornography' under US law, and more generally regarding the privacy rights of young children.

Eldon filed litigation on Tuesday targeting Nirvana, their label and other people involved in the creation of the artwork for 'Nevermind'. The lawsuit states that the 1991 album cover "constitutes commercial child pornography" under US law - and that the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so".

The plaintiff was just four months old in 1991 when he was photographed submerged in a swimming pool by photographer Kirk Weddle. The new lawsuit runs through the events that led to that photograph being taken and its subsequent use on the Nirvana album.

Citing Robert Fisher, who designed the artwork, the lawsuit claims that it was Nirvana themselves who came up with the idea of featuring a nude baby on the cover of 'Nevermind'. Weddle was then commissioned to capture the required images.

"In 1991, Weddle ... took explicit photos of Spencer, who was then a four month old baby, in a pool at the Pasadena Aquatic Center in Pasadena, California", the legal filing states. "Weddle took a series of sexually graphic nude photographs of Spencer. To ensure the album cover would trigger a visceral sexual response from the viewer, Weddle activated Spencer's 'gag reflex' before throwing him underwater in poses highlighting and emphasising Spencer's exposed genitals".

It was then Kurt Cobain, it's alleged, who chose the version of the photo of Eldon in which it was made to look like the child was reaching for a dollar bill. Says the lawsuit: "Cobain chose the image depicting Spencer - like a sex worker - grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body with his penis explicitly displayed".

None of this was approved by Eldon's legal guardians at the time time, the lawsuit then claims. "Neither Spencer nor his legal guardians ever signed a release authorising the use of any images of Spencer or of his likeness", it states, "and certainly not of commercial child pornography depicting him".

The creation of the image, it's use on the 'Nevermind' cover, and the subsequent exploitation of the artwork over the following three decades has, the lawsuit then claims, caused Eldon extreme and permanent emotional distress.

"Spencer has been and will continue to suffer personal injury by the distribution and possession of child pornography depicting him by persons including the defendants", the lawsuit says.

It adds: "The permanent harm he has proximately suffered includes but is not limited to extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity, loss of past and future wages, past and future expenses for medical and psychological treatment, loss of enjoyment of life, and other losses to be described and proven at trial of this matter".

There are various interesting elements to this case, but the most obvious question is whether or not Eldon being naked in the photo in itself constitutes "commercial child pornography".

The lawsuit tackles that question head on, citing both the law and legal precedent in this domain. Crucially, the case for the photo being defined as commercial child pornography is built of aspects of the image beyond just the nudity itself.

"The album 'Nevermind' depicts a lascivious exhibition of Spencer's penis and genital area", the lawsuit states. Meanwhile, the inclusion of the dollar bill - and the claim that the final artwork was made to look like Eldon was grabbing at the money "like a sex worker" - will also likely factor into the child pornography claim. Even if that's not the concept that Nirvana and Spencer were trying to communicate.

In its analysis of the case, Law360 quotes law professor Amy Adler, who is an expert on the regulation of pornography. She asks: "What constitutes 'lascivious exhibition of the genitals'? How does it differ from an innocent photograph of a naked child, such as a family photograph of a child in the bathtub, which should be protected?"

More specifically regarding the 'Nevermind' cover, she adds: "It is a disturbing image, but I would argue that what makes it disturbing is that it's a picture of an innocent baby swimming toward money. The picture has been commonly understood as a critique of capitalism rather than through the lens of sexuality".

Beyond the technicalities of what constitutes child pornography under US law, Nirvana's defence may also rely on the fact that, at various points in the past, Eldon himself has talked about his appearance on the famous album cover in positive terms. And, indeed, he has recreated the image multiple times over the years, albeit wearing shorts.

That said, in a 2016 interview with Time magazine he did say that he had found himself getting a "little upset" about the photo as he aged. "I just woke up already being a part of this huge project", he added in that interview. "It's pretty difficult - you feel like you're famous for nothing".

Although 'Nevermind' was released long before the social media age, the lawsuit notes that that hasn't stopped the artwork from being exploited digitally in more recent years, including as a Snapchat filter. And another legal expert who spoke to Law360 said that the litigation could also put the spotlight on some other more modern concerns.

Law professor Stacey Steinberg - an expert on child privacy rights - states: "I think this is an interesting case and I will follow it closely. Should a child be able to have control over his or her digital footprint? While this image was taken long before social media, many of today's children are growing up with their images shared online".

Meanwhile, in more practical matters, Eldon is seeking damages of at least $150,000 from each of the defendants.

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FUGA announces deal with German label ONE Sights Music
Downtown-owned music distribution firm FUGA has announced a new deal with Germany-based label ONE Sights Music, part of the distributor's ongoing push into the German market.

Operating as a label, publisher and artist services business, the hip hop centric ONE Sights Music was launched last year by Ramin Bozorgzadeh, who previously headed up rap and hip hop imprints at Universal Music Germany. Under the new deal the company will utilise FUGA's distribution and data platforms, as well as its marketing services.

Confirming the deal, Bozorgzadeh said: "FUGA's unique blend of industry-leading technology, marketing and access to a full range of digital service providers and global markets will be an essential tool for our innovative hybrid business model. I'm very much looking forward to working with the FUGA team and I'm confident we will succeed in expanding our network and realising exciting new opportunities".

With further expansion in the German market a priority for FUGA, the company has also announced that Curt Keplin - who has been working for the business in a consultancy role since last year - is now its Business Development & Marketing Manager for Germany, Switzerland and Austria

On his new job and the ONE Sights deal, he said: "I'm delighted to be joining FUGA at this key moment in its growth, and look forward to building and strengthening our relationships with Germany's independent music scene. In particular, our new partnership with ONE Sights Music presents a unique business opportunity for FUGA to expand into the German hip-hop market".

Meanwhile FUGA CEO Pieter van Rijn added: "We are all delighted to welcome Curt on board and look forward to further strengthening and growing our relationships across the German market under his guidance. The past year has already brought several exciting new partnerships in the region and, with Curt's extensive knowledge and experience of the German independent music sector, we expect that FUGA in Germany will flourish".

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TuneCore appoints Andreea Gleeson as its CEO
Believe's DIY distribution business TuneCore has promoted Andreea Gleeson - most recently Chief Revenue Officer - to the role of CEO. The company hasn't had anyone with that job title since the departure of previous CEO Scott Ackerman last year.

Confirming the appointment, Believe boss Denis Ladegaillerie says: "When Andreea joined TuneCore five years ago, she brought with her a fresh perspective and proceeded to challenge music industry norms while continuing to innovate and build the company. This promotion recognises her leadership skills, expertise across product, technology, and marketing, as well as her keen understanding of artist and label needs during a period of accelerated growth in the independent music market".

"Andreea's elevation to CEO also underscores Believe's commitment to gender parity and empowering female leaders", he adds. "I'm THRILLED that she will lead TuneCore, as we shape the future of music around the world to best serve and develop independent artists".

Gleeson herself says: "I'm inspired daily by the talented artists and industry leading team who make TuneCore the most innovative and forward thinking independent digital music distributor in the world. I truly believe in our mission – in step with our parent company Believe - to serve artists at every stage of development and will continue to build TuneCore to be the destination where artists can start, grow and manage their careers, while working to level the playing field for all independent artists".

Following Ackerman's departure, Gleeson was already basically running TuneCore in her Chief Revenue Officer role in partnership with the company's Chief Operating Officer Matt Barrington. He, the company adds, will also now "expand his operational purview to encompass all TuneCore departments, working in concert with Andreea to lead the company".

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Night Time Industries Association continues to pile on pressure over COVID Passports
The Night Time Industries Association continues to put pressure on the UK government over its plan to force clubs and some other venues to check the COVID vaccination status of customers at the door from the end of next month. NTIA wants minsters to abandon that plan.

In a statement yesterday, the trade group said that over 15,000 letters have now been sent to MPs opposing the proposal that night-time businesses must check COVID passports from late September. Prime Minister 'Boris' Johnson first announced that plan last month as other COVID regulations were relaxed in England, allowing clubs to re-open and full capacity shows to resume,

NTIA boss Michael Kill says: "Over 15,000 letters have been sent to constituent MP's highlighting the industry's deep concern for the government narrative around COVID passports, in particular the impact of this measure on the workforce, trade and culture".

"After a short period of freedom, we are once again overshadowed by uncertainty, the end of September brings with it some huge challenges around staffing, discrimination, safety, and tourism", he adds. "We are already seeing bookings and advance ticket sales dropping off at the end of September with several event promoters reporting refund requests due to COVID passport requirements from the start of October."

"We are also seeing the initial signs of illegal events being organised for the end of September, early October, which will certainly be counter productive against the current public health strategy, and will place further pressure on emergency services and policing", he goes on. "Our industry has been exceptional during this pandemic, supporting communities, managing people, risk and public health and we are now seeing irrefutable evidence of this success in the daily infection and mortality figures".

Concluding, Kill says: "The government needs to step forward and confirm its intentions and end the uncertainty of a sector worth over 112 billion to the economy".

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Spotify rolls out new podcaster monetisation tools offering benefits many artists would like
An update from Spotify this week on its new tools to help with the monetisation of podcasts has caused some chatter in the music community to the effect that maybe the streaming firm is being much more helpful to podcasters than it is to musicians.

Although, in many ways Spotify's latest dabblings in the podcasting domain are more interesting because it sees the company properly move into the direct-to-fan subscriptions space, a move it could replicate in music down the line.

Spotify first teased its in-development monetisation tools for podcasters at the big Stream On event it staged earlier this year, before beginning an invite-only pilot with a small group of podcasters back in April.

With various tech and media companies trying to dominate the podcasting business, it's reasonable to assume that any podcast platform that can help podcasters more easily monetise their content will gain an advantage in what is a very competitive marketplace.

Most efforts to monetise podcasts in the past have been advertising and sponsorship based, although an increasing number of podcasters actually make more money through memberships, subscriptions and pay-to-access premium content.

That usually means making a podcast available for free via all the different podcasting apps, but then urging listeners to pay some money via a platform like Patreon, either to access some extra content, or just to get the warm glow of supporting a podcaster whose programmes you like.

Both Apple and Spotify are now trying to make the subscriptions and memberships approach more seamless. Spotify is doing that by adding new tools to its podcast creation platform Anchor - and those tools are now being made available to all podcasters in the US.

Said tools allow podcast makers to directly charge listeners a subscription fee and to then make extra premium content available to those paying subscribers, both through the Spotify app, but also via any other podcast platform. The latter is achieved by providing paying subscribers with a secret feed that links to the premium content.

In an announcement earlier this week confirming that all this was now being rolled out in the US, the line that captured the attention of many music-makers was this one: "We now offer the ability for creators to download a list of contact addresses for their subscribers so they can further engage with their subscriber bases and offer even more benefits".

Neither artists nor podcasters can directly engage their listeners on the main Spotify platform in that way, but now any podcast makers that can successfully upsell their own premium packages will enjoy that all important direct connection. So, interesting question, other than by launching a podcast, could artists also enjoy a similar direct connection to fans via Spotify in the future?

For all sorts of reasons, it seems unlikely any streaming service would ever provide contact information for people who simply listen to any one track. But could Spotify start offering direct-to-fan tools to artists beyond the existing lacklustre buttons that link through to third-party ticketing and merch stores? And could that include artist subscription packages via which an artist gets a direct connection with the fan?

It seems certain that direct-to-fan services based around online content and experiences - rather than just selling physical products - is going to play a key part of the next phase of digital music growth. And pretty much all the social media platforms are busy adding membership, e-commerce and digital gifting tools at the moment.

Those tools are currently being used more by creators outside of music, but that is likely to change, and as that happens, it makes sense that Spotify, Apple et al will want to jump on the direct-to-fan bandwagon, maybe using their respective podcaster tools as a model.

In a way, it would probably be better for artists - and other creators - if the social media and streaming services properly integrated with the existing third-party direct-to-fan platforms rather than trying to own that space themselves.

However, a company like Spotify is probably better positioned than most to tackle the various music licensing issues with music-based direct-to-fan activity that have generally been just ignored to date. So maybe there's a big opportunity for it to pursue right there.

In the meantime, back in the world of podcasts, Spotify says that its new monetisation tools for podcasters will start to roll out beyond the US later this year.

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New podcast to investigate harassment and abuse in the Australian music industry
As both Sony Music and Universal Music continue with investigations into allegations regarding toxic corporate cultures at their respective Australian divisions, a new five part podcast will put the spotlight on "serious allegations of harassment, abuse and assault in the Australian music industry".

Australian company Schwartz Media will begin publishing the new series called 'Everybody Knows' from next week. Its presenter, investigative journalist Ruby Jones, says: "This series is an investigation into the underbelly of the Australian music industry, the harassment, abuse and misogyny that's been allowed to flourish there for years. But my investigation doesn't stop there".

"I want to know why, four years on from #MeToo, so little has changed for women in Australia", she adds. "How the law, journalistic failures and a culture of 'boys will be boys' has combined to make speaking about abuse so impossible. How is it that everybody knows about the crimes being committed and yet nothing changes?"

Name-checking the company's daily news podcast 7am, the Head Of Audio at Schwartz Media, Osman Faruqi, says: "With 'Everybody Knows', we're bringing the same compelling, narrative storytelling format we use every day on 7am to a long-form, investigative series. We think it sets a new benchmark for quality audio journalism in Australia".

"Ruby is a brilliant host of 7am", he goes on, "but she's also an extraordinary journalist in her own right. We'd been looking for the right opportunity to unleash some of those skills, and 'Everybody Knows' is it".

Sony Music announced back in June that it was investigating allegations of sexual harassment and intimidating behaviour at its Australian business. The announcement followed the sudden departure of the long-time boss of Sony Music Australia, Denis Handlin, who isn't accused of harassment himself, but has been criticised for overseeing such a toxic working environment.

Universal Music then confirmed earlier this month that it had also launched an internal investigation into inappropriate behaviour at its Australian offices.

'Everybody Knows' will start appearing on all the main podcast platforms from next Wednesday.

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AIM Awards presented
Arlo Parks and Enny were the double winners at the Independent Music Awards from the Association Of Independent Music last night. Parks took the prizes for UK Independent Breakthrough Artist and Best Independent Album, while Enny got the Best Independent Track award and was declared the One To Watch.

Commenting on this year's awards bash, AIM boss Paul Pacifico said: "Having been through one of the toughest times in music history, this year's awards celebrate the humanity at the heart of the independent music community"

And that means, he added, "the relationships between people, whether artists and their teams, independent distributors, and the platforms and independent record stores out there surviving and thriving in spite of challenges of the day. And of course, the fans, the people that make all of this possible. We're a mutually reinforcing community that stands and succeeds together. Congratulations to all of our winners!"

And, in case you wondered, these are all the winners...

UK Independent Breakthrough: Arlo Parks (Transgressive Records)
International Breakthrough: Jayda G (Ninja Tune)
One To Watch: Enny (FAMM)
PPL Award For Most Played New Independent Artist: Lauv
Best Live [Streamed] Act: Ben Böhmer

Best Independent Track: Enny – Peng Black Girls ft. Amia Brave (FAMM)
Best Independent Album: Arlo Parks – Collapsed in Sunbeams (Transgressive Records)
Best [Difficult] Second Album: Fontaines DC – A Hero’s Death (Partisan Records)
Best Independent Remix: Megapunk – Ela Minus (Elkka Remix) (Domino)
Best Creative Packaging: Working Men’s Club – Working Men’s Club (RAW Edition) (Heavenly Recordings)
Best Independent Video: Wesley Joseph – Thrilla (EEVILTWINN)

Best Independent Label: Forever Living Originals
Best Small Label: Strut Records

Pioneer Award: Tricky
Innovator Award: Adrian Sherwood
Outstanding Contribution To Music: Joan Armatrading
Diversity Champion: Paulette Long
Indie Champions: Love Record Stores and Bandcamp

This year's AIM awards also celebrated a load of regional music champions around the UK, with the hosts of each local version of the BBC Introducing programme asked to pick a person or organisation that plays a particularly important role in supporting the music community in their area. And here is the full list of winners for the Local Heroes Awards.

Sammy Clarke (Kent)
Billy Lockett (Northampton)
David Plumtree & his Cafe Indie Team (Humberside)
Bryony Williams (West Midlands)
Bridgitte Tetteh (Berkshire)
Chloe Mogg & Amy Crouch - 7 Arts Still Exist (Hereford & Worcester)
Georgie Keen (Suffolk)
Ladies Of Rage (Wales)
Ace Ambrose (Coventry & Warwickshire)
Tramlines Festival (Sheffield)
Lavz (Beds, Herts & Bucks)
Zahra Tehrani (Oxford)
Jennifer John (Merseyside)
Yasin El Ashrafi (East Midlands)
Xidus Pain (Cambridgeshire)
Come Play With Me (West Yorkshire)
Joe Townsley - Noise Academy (Lincolnshire)
Hot Box Live Events (Essex)
Guy Britton (The West)
Harkirit Boparai & Joe Coates (York)
George Fleming - Save Our Scene (London)
Wendy House (Norfolk)
Ensemble (Scotland)
Nelson Navarro (The South)
Trademark Blud (Shropshire)
Laura Brewis - Young Musicians Project (The North East)
Sarah Wilson (Tees)
Danni Brownsill (Stoke)
Nikki MacRae (Northern Ireland)
Emma Twamley (South West)
The Lottery Winners (Lancashire)
Rivca Burns - SFTOC, MIF Festival (Manchester)
Tyrone Gordon (Solent)
Kiya Ashton (Channel Islands)
Josh Duncan & Josh Spedding - Swerve (Cumbria)

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Kanye West unveils Donda Stem Player
When the new Kanye West album finally arrives - whether that's tomorrow, or this weekend, or Christmas 2034 - what happens if you reckon that the second version of the record played out at the most recent listening party, rather than the final version, was better?

Well, good news, for a mere $200 you can buy yourself a Donda Stem Player and fiddle around with all the tracks on the record until they sound something more like your preferred version. And then you can add your own music to the device and play around with that too.

According to West's website, among other things the small gadget allows you to control vocals, drums, bass and samples on any track you choose to mess with. You can also isolate parts and add some effects.

West has been talking about a device of this kind since at least 2019. Its launch has been timed to coincide with the ever moving target that is the release of 'Donda', with that album preinstalled on the gadget. It will initially be available in the US and UK.

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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 consultancy unit 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 Insights 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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