MONDAY 20 SEPTEMBER 2021 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: Stream-ripping site Yout has re-filed its lawsuit against the Recording Industry Association Of America, again setting out its argument that its technology does not circumvent any technological protection measures put in place by YouTube when it helps users to rip audio from the Google-owned video platform... [READ MORE]

TOP STORIES Stream-ripper Yout refiles its lawsuit against the record industry, argues it's pretty easy to rip from YouTube without its app
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LEGAL Ice Cube's Robinhood dispute back in court
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LABELS & PUBLISHERS US National Music Publishers Association close to signing Twitch deal, sources say
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MANAGEMENT & FUNDING New fund launched in memory of former BMG Chair John Preston
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RELEASES Brian Wilson to release solo piano versions of Beach Boys classics
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AWARDS Recording Academy re-jigs Grammys team
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AND FINALLY... Johnny Marr comments on Rick Astley and Blossoms' "funny and horrible" Smiths covers band
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Stream-ripper Yout refiles its lawsuit against the record industry, argues it's pretty easy to rip from YouTube without its app
Stream-ripping site Yout has re-filed its lawsuit against the Recording Industry Association Of America, again setting out its argument that its technology does not circumvent any technological protection measures put in place by YouTube when it helps users to rip audio from the Google-owned video platform.

With stream-ripping services - which allow users to grab permanent downloads of temporary streams - still at the top of the music industry's piracy gripe list, the RIAA tried to have Yout delisted from the Google search engine.

That request was based on the allegation that Yout had violated the US Digital Millennium Copyright Act by circumventing "YouTube's rolling cipher, a technical protection measure, that protects [the labels'] works on YouTube from unauthorised copying [and] downloading".

Such circumvention, the record industry trade group claimed, breached a provision in the DMCA that "prohibits circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work".

However, Yout hit back by suing the RIAA. The record industry trade group had misrepresented its service when trying to get Google to delist its website, the stream-ripping set up argued. And in doing so, the RIAA had damaged its entirely legitimate business.

The case really centres on the complexities of how YouTube works, and whether elements of the YouTube system which - in the eyes of the labels, at least in part exist to stop stream-ripping - actually constitute one of the "technological protection measures" mentioned in the DMCA.

A subsequent back and forth about those complexities between the RIAA and Yout became, well, somewhat complex. Then, in August, the RIAA successfully got Yout's lawsuit dismissed. However, the Electronic Frontier Foundation, supporting Yout, said the dismissal was a mere technicality. So complex had subsequent submissions by the RIAA and Yout become, it was better to dismiss the case and allow Yout to start over with an amended complaint.

However, the Electronic Frontier Foundation, supporting Yout, said the dismissal was a mere technicality. So complex had subsequent submissions by the RIAA and Yout become, it was better to dismiss the case and allow Yout to start over with an amended complaint.

It's that amended complaint that has now been filed. The core arguments remain the same, though Yout will be hoping that it states it case more clearly this time, while also anticipating all of the RIAA's counter-arguments.

At the heart of Yout's lawsuit is the claim is that it's actually pretty easy to download video or audio files from YouTube using the developer tools in the Chrome browser - indeed the lawsuit itself includes a twelve step guide to doing just that, and links to some online articles containing similar guides. Therefore, it adds, its technology isn't circumventing any cleaner content protection technology, it is just simplifying a process that anyone can do via a browser window.

"Yout's software platform enables a person to complete the process described above, but in fewer steps", the counter claim states. "Contrary to defendants' allegations, Yout's software platform is not designed to descramble, decrypt, avoid, bypass, remove, deactivate, or impair any technical protection measure or any technological measure that effectively controls access to a work protected by the Copyright Act".

It adds: "In fact, any digital mechanism in place designed as anti-circumvention technology stops Yout users from recording and saving that protected work, thereby demonstrating Yout's compliance with any anti-circumvention protections in place ... the 'rolling cipher' mechanism that the RIAA argues is employed by YouTube does not prevent copying of videos or other digital media. [in fact] the term 'rolling cipher' is a misnomer and a term likely coined and relied upon by Defendants to argue that services like Yout are somehow breaching a protection that doesn't exist".

"The 'rolling cipher' mechanism that the RIAA argues is employed by YouTube does not prevent copying of videos or other digital media", it goes on. "[In fact] the term 'rolling cipher' is a misnomer and a term likely coined and relied upon by defendants to argue that services like Yout are somehow breaching a protection that doesn't exist".

In the middle of all that, Yout also adds the usual argument in cases like this, which is that while some of its users might use its software to gain copies of recordings illegally, it also has entirely legitimate uses. "Many content creators use Yout's service to record their own original videos", it argues, "further, many content creators encourage their audience and fans to use Yout to record and play back their original content".

It remains to be seen how the RIAA now responds. It previously urged the court to dismiss the original lawsuit with prejudice, which would have prevented Yout from presented amended arguments, the labels claiming that any such future arguments would still be "futile" and therefore a waste of everyone's time.

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Ice Cube's Robinhood dispute back in court
Ice Cube's legal squabble with the Robinhood stock-trading app was back in court last week, with the core debate unchanged: is a financial news service published by Robinhood actually advertising masquerading as editorial?

The rapper sued the financial services firm over an article it posted to its Robinhood Snacks news website earlier this year. The article was companied by a picture of Ice Cube and the caption "Correct yourself before you wreck yourself", a play on the lyric, "You better check yo self before you wreck yo sel"” from his 1993 track 'Check Yo Self'.

In his lawsuit, the rapper argued that the use of his photo on that article implied he was endorsing the company. And, he added in no uncertain terms in his lawsuit, he didn't want anyone thinking he had any connections to "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".

That implied endorsement infringed Ice Cube's trademark and publicity rights, the lawsuit claimed. But Robinhood countered that it had properly licensed the photo from the agency that owned the copyright in it, and its use of the image in an editorial context did not imply any sort of endorsement of its products. Therefore there was trademark and publicity rights case to answer.

In June, judge Laurel Beeler dismissed the case, stating: "This court dismissed the complaint for lack of standing because the plaintiff did not plausibly plead that Robinhood's use of his identity suggested his endorsement of Robinhood’s products".

That conclusion was in part because the judge felt Robinhood's news service was editorial rather than advertising. She wrote: "The plaintiff characterises the newsletter as an advertisement, not a newsletter. But he attaches the newsletter, which is demonstrably not an advertisement".

However, despite the dismissal, Ice Cube was given the opportunity to submit an amended complaint, which is why the whole dispute was back before the same judge last week.

According to Law360, the rapper's legal rep Michael Taitelman again argued that, while Robinhood Snacks is on one level an editorial service, it exists to market and sell the company's other services. Which makes it advertising.

And the tone employed in that editorial service is part of the finance firm's bid to "be the most culturally relevant [stock-trading] app, which exactly ties to their use of a culturally relevant person, Ice Cube, who is in the wheelhouse of the people they are trying to attract to the platform. They wouldn't have used Ice Cube['s image] if there wasn't a connection to what they were trying to promote".

Needless to say, Robinhood's attorney, Mitchell J Langberg, insisted that Beeler got it right when she dismissed the case in June. The way his client used the Ice Cube photo "most clearly isn't an endorsement". He then added that - even if you did consider the new service to be advertising - which it isn't - but even if you did - "the use of that photo isn't even an endorsement - nobody's pointing to a product [or] suggesting that someone get a product".

Beeler mused during the session that she recognised that Robinhood Snacks was economically motivated. However, is that enough to see it as advertising, or the use of the Ice Cube photo as endorsement?

The judge is now considering both side's arguments before ruling on Robinhood's latest motion for dismissal. Even if Beeler does let the case proceed, there are still First Amendment free speech arguments to be had.

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US National Music Publishers Association close to signing Twitch deal, sources say
The US National Music Publishers Association is close to agreeing a licensing deal with Amazon's livestreaming platform Twitch, according to multiple sources who have spoken to Billboard.

Twitch has come under increased pressure of late to sort out its music licences, of course, given how much music features in livestreams on the platform. Both record labels and music publishers have also become more prolific in filing takedown notices against the Amazon service, which has annoyed creators steaming via the platform, given that Twitch's systems for dealing with such takedowns and any subsequent responses from affected creators are not that sophisticated.

On the songs side, Twitch does already have licences from the US collecting societies ASCAP and BMI. But those only cover the so-called performing rights in songs, and a stream also involves a reproduction, which - with Anglo-American repertoire - is controlled by the music publishers. And as a video-based service, Twitch also arguably involves a synchronisation of the music, which also has an impact on the licences it needs.

In a blog post aimed at its creators late last year, Twitch said that it was attempting to sort out some music licences to reduce the number of takedown notices it was receiving, but that music licensing was a big challenge. And, it added, the kinds of licensing deals the labels and publishers had agreed with other digital platforms wouldn't work for a service like Twitch, where many creators don't use music in their streams.

But NMPA boss David Israelite said the blog post contained "astounding admissions". He wrote: "Twitch has the audacity to imply licensing music for its platform is a novel or difficult exercise. Twitch - and its parent company - cannot seriously argue that their profit margins do not leave room to fairly compensate creators and songwriters for the use of their music".

"Other sites, including Facebook, Instagram, YouTube, Snapchat and TikTok, to name a few, have figured out how to compensate songwriters for the use of music on their platforms, even though not all of their user-generated content contains music", he added. "There are several licensing roadmaps for Twitch to follow. Instead, Twitch has gone to incredible lengths to avoid properly licensing music for its streamers".

But, it seems, Twitch has now found a roadmap to follow. NMPA has negotiated a number of template deals with digital platforms on behalf of its members over the years, and - according to Billboard - the trade group is now "close to signing a music licensing agreement" with Twitch "potentially ending an arduous, year-long stalemate between the livestreaming platform and publishing organisation".

An agreement in principle is in place, it added, although nothing has as yet been signed. But one source reckoned the deal could be announced as soon as this week.

Of course, that deal doesn't mean that all of Twitch's music challenges are dealt with. It's not clear how many NMPA members would opt into the deal and it would only presumably apply within the US. Plus, on the recordings side, only a small number of labels and distributors currently have deals in place with Twitch, so there's lots more to be done in that domain as well.

But you know, one step at a time I guess.

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New fund launched in memory of former BMG Chair John Preston
A new fund has been launched in memory of former BMG and BPI Chair John Preston to support young musicians and songwriters in Scotland.

Set up by Preston's widow Roz, in partnership with the Liam Colgan Music Fund, the John Preston Memorial Fund will distribute money via two awards for music graduates from the University Of The Highlands, and two others open to all young musicians and songwriters across the Scottish Highlands and Islands.

"Throughout his career in the music industry, John was committed to finding and supporting emerging talent, both among artists and business people in the music industry", says Roz Preston. "He would be honoured that this memorial fund in his name will go towards creating awards for music students and others from across the Highlands and Islands who dream of a career in music".

Iain Clark, former drummer with Uriah Heep and now Chair of the Liam Colgan Music Fund, adds: "I worked with John some years ago when he was chairman of one of the European pioneers in digital music distribution companies. He was one of the most kind, decent and honourable people I’ve ever met and we went on to become good friends. I was honoured to help his widow Roz set up this memorial fund in John's name".

"John was also a proud Scot who I'm sure would have been delighted this fund is supporting young people in this remote area of Scotland", he goes on. "Many people simply don't see past the stunning landscapes and natural beauty of this region, but in isolated, rural areas like this, many young people often feel disconnected to the wider world".

"We want to give young people here, many of whom are genuinely talented and keen to get into the music business, access to the opportunities and support available to their urban counterparts, to help them pursue their ambitions", he concludes. "It's something I know John would have supported 100%".

Preston died suddenly in 2017, following a short illness, aged 67. He began his career working at a chain of record shops in Scotland before gaining his first record label job in artist development at EMI in 1977. He then went on to hold a number of senior positions at various record labels, including Polydor, RCA and BMG, during their late 20th Century boom.

He left the music industry in 1998 in order to train in boat building, he and his wife building their own boat in order to sail around Europe over a period of seven years. But he retained some links to music, in particular working on the development of Dave Stewart's Hospital private members' club in London.

Applications for the two open awards being offered by the new fund are open now. One songwriter and one musician aged between sixteen and 30, and based in the Scottish Highlands, will received £500 each. Find out more here.

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Setlist: Live at Spot+
Setlist's Chris Cooke presents a live version of the programme at the Spot+ conference in Aarhus, Denmark. He is joined by a panel of industry experts to review key events in music and the music business from the last week, including the RIAA's latest stats, Portishead's user-centric royalties on SoundCloud, Epic Games and Apple, COVID passports, and why Ed Sheeran hates American awards ceremonies. 

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

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Nick Cave to publish memoir on life after the death of his son
Nick Cave is to publish a new memoir about his life following the death of his son Arthur in 2015. Titled 'Faith, Hope And Carnage', the book is based on 40 hours of interviews with journalist Sean O'Hagan.

"This is the first interview I've given in years", says Cave. "It's over 40 hours long. That should do me for the duration, I think. [It was] a strange, anchoring pleasure to talk to Sean O'Hagan through these uncertain times".

O'Hagan adds: "This is a book of intimate and often surprising conversations in which Nick Cave talks honestly about his life, his music and the dramatic transformation of both, wrought by personal tragedy".

"Arranged around a series of themes - including songwriting, grief, creativity, collaboration, catastrophe, defiance and mortality - it provides deep insight into the singular mind of one of the most original and challenging artists of our time", he goes on, "as well as exploring the complex dynamic between faith and doubt that underpins his work".

The book is set to hit shelves in autumn 2022.

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Brian Wilson to release solo piano versions of Beach Boys classics
Brian Wilson has announced a new album of solo piano versions of Beach Boys songs, titled 'At My Piano'.

"We had an upright piano in our living room and from the time I was twelve years old I played it each and every day", says Wilson. "I never had a lesson, I was completely self-taught".

"I can't express how much the piano has played such an important part in my life", he goes on. "It has bought me comfort, joy and security. It has fuelled my creativity as well as my competitive nature. I play it when I'm happy or feeling sad. I love playing for people and I love playing alone when no one is listening. Honestly, the piano and the music I create on it has probably saved my life".

The tracklist for the new album is as follows:

1. God Only Knows
2. In My Room
3. Don't Worry Baby
4. California Girls
5. The Warmth Of The Sun
6. Wouldn't It Be Nice
7. You Still Believe In Me
8. I Just Wasn't Made For These Times
9. Sketches Of Smile: Our Prayer/Heroes & Villains/Wonderful/Surf's Up
10. Surf's Up
11. Friends Till I Die
12. Love & Mercy
13. Mt Vernon Farewell
14. Good Vibrations

'At My Piano' will be released through Decca on 19 Nov.

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Recording Academy re-jigs Grammys team
The US Recording Academy has given Ruby Marchand the responsibility of overseeing the good old Grammy Awards. This follows the departure of Bill Freimuth, who had performed that role since 2018, having been with the Academy itself since 2004.

Marchard joined the Academy as Chief Industry Officer last year, and will continue in that role too, becoming Chief Awards & Industry Officer, overseeing membership and industry relations as well as the organisation's big awards bash. At the same time, Joanna Chu has been promoted to Vice President Of Awards, reporting to Marchard. She was previously Managing Director Of Awards, and - like Freimuth - originally joined the Academy in 2004.

"I am proud to welcome Ruby and Joanna into their new positions as we work to enhance our awards processes from the inside out,", says Harvey Mason Jr, who became permanent CEO of the Recording Academy in May, following nearly eighteen months as interim CEO. "Their expertise in this space is highly valuable as we continue to refine the Recording Academy's role in the music industry and work to provide the highest quality of service to our members".

At the same time that Freimuth departed last month, VP Communications Lourdes Lopez and Chief Marketing & Innovations Officer Lisa Farris also left the organisation.

The changes in the executive team at the Recording Academy continue Mason's efforts to build back trust in the organisation itself and its awards, following accusations of corruption made by former CEO Deborah Dugan upon her departure just before the 2020 ceremony. Following this, various artists - most notably The Weeknd - hit out at how the awards are run.

Part of Mason's plan involved removing nomination review committees from the shortlisting process in all but a number of what the Academy terms 'craft categories' - awards for things like package design and immersive audio, where a smaller number of Grammy voters have specialist knowledge.

Such committees had been used in niche categories since the 1980s. Then, in 1995, review committees were also added to the big four Grammy awards to make a final decision on the nominees in those categories.

That came after the nominations for Album Of The Year that year had featured nods for the likes of The Three Tenors and Tony Bennett, but not Snoop Dogg, Pearl Jam and other newer artists who had released some of the year's most successful albums. That had led to accusations that the awards were out of touch.

Despite introducing nominations committees to combat controversy, in recent years the committees themselves have become controversial. One of Dugan's key claims was that these "secret committees" often overruled voters, and in some cases artists who were part of these groups were allowed to put themselves into the shortlists. Accusations that the Academy denied.

Whether these changes to the awards - and the team that runs them - will be enough to convince people that the Grammys is just another boring, pointless event - as opposed to a corrupt, boring, pointless event - remains to be seen. I'm sure Ed Sheeran will tell you that it'll be "horrible" whatever they do.

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Johnny Marr comments on Rick Astley and Blossoms' "funny and horrible" Smiths covers band
Johnny Marr has delivered his verdict on the new Smiths covers band that's been created by Rick Astley and Blossoms, calling it "funny and horrible". Although it doesn't seem like he was laughing when he said that.

The Smiths guitarist was responding to footage of Astley joining Blossoms on stage at The Forum in London last week to perform 'This Charming Man'. Shortly after that, they announced that they will play two full Smiths tribute shows together next month.

However, Marr doesn't seem to be accepting the tribute - in part because he's a bit miffed that Blossoms didn't mention the project when he saw them recently. All of which could make things uncomfortable when both he and Blossoms support The Courteeners this Friday.

"This is both funny and horrible at the same time", he tweeted, posting footage of Astley performing with Blossoms. "I met The Blossoms a few weeks ago and they elected to not mention it", he added in a reply to a fan. He also said to another: "Didn’t mention when we were hanging out a few weeks ago. Must've slipped their minds".

"I've got no problem with tribute bands or with anyone doing anyone's songs good or bad", he went on. "I've got no problem with Rick Astley. There's a back story. That's that".

So, yeah, like I said, it's gonna be slightly awkward at that gig later this week. Maybe Marr could balance things out by covering a Blossoms song with some old 1980s pop star. Phil Oakey, maybe. Or Jimmy Somerville. Or, er... Morrissey?

Actually, as many people have noted, one of the good things about this Astley/Blossoms hook-up isn't just the weirdness of it all, but also that it gives people a way to enjoy Smiths songs without having to think too hard about those Morrissey complications.

When the upcoming tribute shows were announced, Blossoms frontman Tom Ogden said: "The Smiths have always meant so much to Blossoms, with even their rainiest songs complete with wry humour and soul-reaching musicianship and melody".

"Their poppier moments are pure, joyful, danceable poetry", he added. "Imagine backing Rick Astley to play the songs of The Smiths? We've had wilder dreams, but not many. We'll barely be able to believe it until it happens, but the dates are set, we're studying every note, line and beat to say 'thank you' to The Smiths alongside Rick and do both of them proud".

Astley added: "From the moment The Smiths emerged in 1983 I was hooked and it's as a fan, with deep respect as a musician for Morrissey, Marr, Rourke and Joyce, that I'll be joining the endlessly enthusiastic and talented Blossoms on stage to sing their songs. It's no secret that it's been an ambition of mine to turn an idea that first sounded crazy, making more sense as Blossoms and I talked about it and then rehearsed it, into a reality. These shows will be nights that I'll never forget".

So, all very reverential. Although, you can see how the Blossoms guys might have been planning to mention it all to Marr when they saw him recently, but then got a bit worried that it might seem like they were taking the piss.

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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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