|MONDAY 14 MARCH 2022||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The US Second Circuit appeals court last week declined to reinstate the lawsuit filed by lyrics site Genius against Google and LyricFind. The appellate judges concurred with the lower court that said Genius's case was really a copyright case - despite it suing for breach of contract and unfair competition - and that the lyrics site couldn't pursue such a case because it didn't own the copyright in the lyrics it claims Google and LyricFind ripped off... [READ MORE]|
US appeals court sides with Google in Genius lyrics theft case
Genius first sued Google in late 2019, claiming that the tech giant was pulling lyrics from its website for use in the information boxes that appear on the Google search engine when you search for a song. It said it had caught Google nabbing its lyrics by strategically placing different kinds of apostrophes and spaces within the lyrics it published, and then watching as those specific combinations of apostrophes and spaces popped up on the Google platform.
For its part, Google insisted that all its information box lyrics came from its music industry partners, and in particular lyrics aggregator LyricFind. Having been officially pulled into the squabble, LyricFind then said that it mainly sourced its lyrics from the music publishers it works with. And while it does have its own content team that checks and cleans the lyrics, it does not use Genius as a source when doing that work.
None of which explained how those specific combinations of apostrophes and spaces were appearing on the Google site. But, either way, Genius had a problem. It doesn't own the copyright in any of the lyrics on its website - because those rights belong to the songwriters and music publishers. So even if LyricFind, Google or someone else in the supply chain was cutting and pasting lyrics from the Genius site, it still couldn't sue for copyright infringement.
This is why Genius instead sued for things like breach of contract and unfair competition. That was mainly based on the argument that the Genius website had terms of service which forbid the lifting of lyrics off the site for commercial purposes; and that Google or LyricFind were bound by those terms of service whenever they connected to the site; and by copying any Genius compiled lyrics they were in breach of the terms.
However, in court Google successfully argued that this was definitely a copyright case, and US copyright law specifically prevents people from pursuing breach of contract claims when the alleged breach relates to allegations of copyright infringement. Instead the plaintiff is obliged to sue for the infringement. But, of course, it can only do so if it's the copyright owner. Which meant the Genius case was dead.
Genius then sought to get the case revived on appeal. But last week the Second Circuit stated: "Genius argues that the district court erred by concluding that its breach of contract and unfair competition claims are statutorily preempted [by copyright law]. We disagree".
The Second Circuit's judgement explains in more detail why each of Genius's claims are "preempted" by copyright rules, though the key bit of law behind its ruling is Section 301 of the US Copyright Act, which is cited early on in last week's judgement.
That section says that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any state".
We await to see if Genius plans to take the matter any further.
New York appeals court rules new free speech rules shouldn't impact on Dr Luke v Kesha defamation case
That original ruling last year was based on new free speech laws in New York state, but the appeals court said last week that those new rules should not be applied retroactively so that they impact on active disputes.
Luke's defamation lawsuit against Kesha is all that remains of a long-running, multi-layered and quite complicated legal battle between the two former musical collaborators.
At the heart of the wider legal battle was Kesha's allegation of rape against Luke. He denies that allegation, and in turn alleges that she only made that claim in a bid to force his hand in contract negotiations. Hence the defamation action.
In 2020, as the defamation case slowly worked its way through the system, the judge overseeing the proceedings ruled that Luke - as someone who mainly works behind the scenes in the music industry - was not a 'public figure'.
That was important because, under New York law, that decision has an impact on what needs to be proven in Luke's defamation case. If the producer is deemed a public figure, not only does he need to prove that Kesha's rape claims are untrue, but also that they were made "with actual malice". But, as he is not a public figure, he only need prove the former.
However, in 2020 New York state passed some new anti-SLAPP laws. These are laws designed to protect free speech by targeting what are known as 'strategic lawsuits against public participation', basically frivolous litigation that mainly aims to shut people up, rather than actually right any alleged wrong in court.
Under the new anti-SLAPP laws, in defamation cases in New York the "actual malice" requirement can also apply when it's a non-public figure pursuing the litigation if the allegedly defamatory statement relates to issues of public concern. The new rules would also mean Kesha could seek damages from Luke if her allegations were proven in court.
Once Kesha's legal team brought up the new anti-SLAPP laws the big question was whether or not said laws should be applied retroactively so that they impact on a case that was originally filed long before the new rules were in force. Would it be fair to put new obligations onto a plaintiff who could not have foreseen such obligations when they first decided to go legal?
When that question was posed in court, Kesha's lawyer argued that "this is exactly the type of case that [the New York legislature] had in mind when they decided to immediately correct this statute". But Luke's legal rep countered that the new laws didn't explicitly say that they were to be applied retroactively and therefore they shouldn't be.
Judge Jennifer Schecter ultimately sided with Kesha's team, ruling that the new laws do apply in her dispute with Luke, meaning that he would have to prove actual malice in order to win his defamation case. And, if Kesha won, she could seek damages from the producer.
However, the Luke side appealed, and last week the appeals court formally disagreed with Schecter. They basically concurred with what Luke's team said at last year's hearing. The new anti-SLAPP laws "did not specify that the new legislation was to be applied retroactively", and therefore it shouldn't be.
Unsurprisingly, the Kesha side has already said it plans to appeal the appeal. A spokesperson for her legal team said: "Today's opinion is manifestly erroneous and contrary to the conclusion reached by approximately 20 other courts. We will promptly seek court of appeals review".
Live Nation and Ticketmaster argue another lawsuit should go to arbitration - not least because its new arbitrator is better
The argument goes that when people buy tickets from Ticketmaster they sign up to the company's terms and conditions which clearly state that any subsequent disputes should be taken to private arbitration rather than being pursued in public through the courts.
That argument was put to the test in 2020 in relation to a class action lawsuit filed by Olivia Van Iderstine and Mitch Oberstein which claimed that Live Nation and Ticketmaster abused their market dominance to charge "extraordinarily high fees" for tickets.
When Live Nation tried to force the dispute to arbitration, legal reps for Iderstine and Oberstein argued that the live firm buries things like the arbitration obligation on its ticketing websites in the middle of a load of hard-to-find tedious legalese, and therefore that obligation should not be binding. However, last year the judge overseeing that case nevertheless sent to matter to arbitration.
That's relevant to the latest dispute that Live Nation wants bounced out of court. The company is facing another lawsuit that accuses Live Nation and its ticketing business of colluding to monopolise the US ticketing market. In fact, so similar are the claims in this lawsuit to those made in the Iderstine and Oberstein litigation, says Live Nation, it should be a given that this case is also handled via the arbitration system.
In a legal filing last week, the live giant stated: "This case is identical to another case that this court sent to arbitration less than six months ago. It is brought by the same plaintiffs' counsel. The allegations are the same. The putative classes are the same. The claims are the same. Indeed, the complaint in this case is a nearly word-for-word copy of the [Iderstine and] Oberstein complaint. Why, then, are we here - yet again - and not in arbitration?"
Lawyers working for the plaintiffs on the new case have sought to distinguish it from the earlier lawsuit on that basis that - between that one being filed and this one being filed - Live Nation changed its chosen arbitrator. It previously used an entity called JAMS, but now uses New Era ADR. And, the lawyers argue, New Era ADR employs a different approach to arbitration than JAMS which is entirely "one-sided" in Live Nation's favour.
That's not true, Live Nation argued in its legal filing last week. Indeed, New Era ADR is a new arbitrator that is better set up to deal with complaints that involve many complainants, such as in class actions like this one. And that's increasingly important because multi-party complaints of this kind are more common than they used to be - in part, Live Nation added, because of the efforts of lawyers like the ones working on this lawsuit.
Live Nation argued: "JAMS's rules and procedures are designed for traditional, one-off arbitrations - for example, where one consumer brings claims against a company in a standalone case. But there is a new and increasingly common trend in arbitration: mass individual arbitrations, in which hundreds or thousands (and sometimes tens of thousands) of individual, but otherwise identical, claims are brought in arbitration".
"Keller Lenkner, plaintiffs' counsel in this case, pioneered this strategy", it went on, "starting first with mass numbers of employment claims, and expanding more recently to mass numbers of consumer claims. JAMS, however, does not have any rules or procedures in place for mass individual arbitrations, employment or consumer".
"How will thousands of individual arbitrations be administered and actually arbitrated - and on what timeline? How will arbitrators for so many cases be appointed? How will discovery be conducted? Will there be a process to avoid inconsistent rulings on common issues? What fees should be assessed when there are thousands of nearly identical claims?"
"There are no rules or procedures in place to answer these questions", it argued. "As a result, the parties involved in mass individual arbitrations end up embroiled in contentious negotiations over how to conduct discovery and arbitrate the claims, over the number and type of arbitrators, and over whether the typical fees should be modified".
"Those negotiations can last for months, even years", it continued. "Adjudication of claims on the merits is, at best, delayed and sometimes never occurs at all". Therefore, it concluded, a new kind of arbitration was required and "New Era, founded in 2020, stepped in to fill the void".
So, actually, New Era is better placed to arbitrate disputes like this one, Live Nation reckons, and therefore the court should just speedily kick the whole matter to arbitration so that that process can get underway. We await to see if the court agrees.
Iconic Artists Group announce deal with Nat King Cole estate
Co-founded by veteran artist manager Azoff, Iconic Artists Group has been competing with the various investment funds that are seeking to buy up the music rights of heritage artists and songwriters, but also has a focus on managing and monetising the brands and trademarks of such acts as well, as is the case with this deal with the Cole estate.
Confirming said deal, Cole's children Timolin and Casey Cole said: "We're delighted to entrust our father's legacy to Irving Azoff and the team at Iconic. Through the years, it's been amazing to see how dad's music continues to inspire and bring people together, and with Iconic at the helm, we know his musical legacy will endure and continue to grow".
Meanwhile, Azoff added: "We are THRILLED that Nat King Cole's family is trusting us with his musical legacy. He was a groundbreaking artist that influenced generations of artists that followed him. One of our true greats - his voice is instantly recognisable and an enduring piece of the fabric of our lives".
More music industry collecting societies suspend deals with their Russian counterparts
Last week, UK collecting society PRS announced that it was suspending its reciprocal relationship with its Russian counterpart RAO. It also confirmed that it was liaising with CISAC - the global organisation of song right societies - to "consider the ongoing membership of Russian societies in the global network".
Later in the week, when confirming that it had suspended its operations in Russia in response to the war in Ukraine, music publishing firm Kobalt said that it had also voiced its "support for any decisions that would cut off the local Russian collection society, RAO, from the network of collection societies".
Subsequent to that, the Kobalt-owned society AMRA confirmed that it was also suspending its agreement with RAO. An AMRA spokesperson stated: "AMRA condemns Russia's invasion of Ukraine and urges a peaceful resolution as quickly as possible. Effective immediately, AMRA is suspending its unilateral agreement with RAO, the Russian society for musical works, under US government sanctions".
Meanwhile, on the recordings side, SCAPR - the global organisation for societies representing performer remuneration rights - last week also announced that it was suspending its Russian member VOIS.
It said in a statement: "Being an international federation of collective management organisations, with members from various countries, the SCAPR board has decided to suspend its Russian member with immediate effect. We will discuss their exclusion at our next General Assembly in June 2022. In the meantime, we invite SCAPR members to suspend their activity with them too".
The UK record industry's society - which represents both labels and performers - then announced it was suspending its deal with VOIS on Friday.
"PPL deplores Russia's attack on the sovereign nation of Ukraine", it said in a statement. "Music is a powerful, universal language and we add our voice to the global chorus across our industry calling for an end to the violence and pledging support for those already adversely affected. Our thoughts are with them".
"PPL has today taken the necessary steps to suspend our relationship with VOIS, the collective management organisation for the neighbouring rights of performers and recording rights-holders in Russia", it added. "As a member of SCAPR, the international association of performer CMOs, we also welcome its decision to suspend the Russian CMO".
Although not actually a SCAPR member, the US collecting society for labels and performers, SoundExchange, has also announced that it has ended its reciprocal agreement with VOIS.
In a memo to members, its CEO Michael Huppe said that the society did not "take this action lightly but believes it's important to demonstrate our support for the people of Ukraine. Ultimately, the flow of performance royalties between SoundExchange and VOIS is not significant, but as a matter of principle, we believe this is the right course of action".
AEG again opposes MSG's London Sphere proposal ahead of key planning meeting
MSG's plans to build a high-tech new venue alongside East London's Olympic Park were first unveiled in 2018. Very similar to another venue MSG is constructing in Las Vegas, the Sphere venues are super high-tech inside and out. On the outside, the spherical building would be covered by an LED 'skin' that displays videos and adverts for as much as sixteen hours a day.
Various groups have opposed the venue plans as MSG's planning application has gone through the motions. That includes local residents, politicians and, of course, AEG, which operates the nearby O2 venue complex at North Greenwich.
For its part, AEG insists that it doesn't oppose healthy competition in the London entertainment market. But, it says, MSG's proposed new Sphere would sit alongside the venues already based in the Olympic Park - including the London Stadium and Copper Box - as well as being just three Jubilee Line stops away from The O2.
Summarising its opposition to the MSG Sphere project ahead of next week's LLDC meeting, AEG said this morning "the proposed Sphere is too close to other major venues - London Stadium, Copper Box and The O2 - and therefore the crowds will pose a serious and dangerous impact on local transport infrastructure".
"As a highly experienced venue operator in London, and world-leading venue and events business that has safely welcomed over 70 million people to and from The O2 since opening in 2007", it continued, "AEG is particularly concerned that MSG's analysis of the potential transport impact remains incomplete and unclear".
Going into the nitty gritty of the transport concerns, it went on: "The safe and efficient movement of visitors to and from The O2 relies heavily on there being sufficient capacity on Jubilee Line trains when they reach North Greenwich tube station as it is the only underground line connecting the Greenwich Peninsula to the rest of London".
"MSG Sphere crowds will depart Stratford heading west at the same time as visitors departing from events at The O2 - and in worst-case scenarios from London Stadium events as well. This would leave no capacity on the trains at North Greenwich for the arena's visitors, leading to transport chaos and the risk of visitors missing onward connections home and becoming stranded".
"Despite this potential impact being identified", AEG added, "MSG are unwilling to agree to restrictions on the operation of the Sphere in order to mitigate this impact. Nor are they willing to provide any additional train services".
Honing in on the other complaints made by other groups that oppose the MSG Sphere, AEG said: "The exterior of the MSG Sphere is an area of two hectares and more than 90 metres in height - broadly the height of St Paul's Cathedral - comprising a digital display of over a million LEDs".
"Yet there is no qualified professional assessment of the potential health and wellbeing effects of light, moving images, and visual distraction to local people, including vulnerable groups and children, or specialist assessment of the health and amenity implications of the advertising façade".
AEG has also raised concerns about the long drawn out and complex planning application process itself, noting that the decision is being made by the LLDC - set up in the wake of the 2012 London Olympics and reporting into the mayor of London - rather than the local council.
"Concern has also been raised", it went on, "that due to the protracted application period, and the drip feed of documentation with over 2000 separate documents and representations online, the enormous scale of the submission has made it impossible for residents and affected parties to access all of the relevant information to properly understand the implications of what is proposed".
Concluding, a spokesperson for AEG said: "We are calling on the LLDC to refuse MSG's application for a new venue in Stratford and encourage the mayor of London to formally oppose this project in order to protect Newham's residents and existing businesses from this inappropriate development".
Songwriter and producer Tainy has sold his pre-2021 catalogue to Influence Media for a reported $25 million. "Tainy has redefined the sound and the future of Latin music", says Influence Media's Rene McLean. "We are honoured to be part of the creative journey as he and [his manager] Lex Barrero continue to push music and culture into a new stratosphere".
Founder of gossip website Hollywood Unlocked, Jason Lee, has joined Kanye West's team as Head Of Media And Partnerships. The appointment follows an interview West did with Hollywood Unlocked last month. "I think after the interview on Hollywood Unlocked, it was clear that we had an aligned vision for levelling the playing field in media", Lee tells Variety. "Ye voiced a vision for a company he was building, and that media was an arm of that, and he felt I could be an asset".
Megan Thee Stallion has enlisted Dua Lipa for new singe, 'Sweetest Pie'.
Imagine Dragons have released new single 'Bones'.
Tove Styrke has released new single 'Hardcore', and announced that she will release her new album, 'Hard', on 3 Jun. She's also scheduled some UK and Ireland tour dates in for May, including one at Brixton Academy in London on 22 May.
Quinquis has released new single 'Run', from her upcoming album 'Seim'.
GIGS & TOURS
The Rolling Stones will play the British Summer Time festival in London's Hyde Park on 25 Jun and 3 Jul as part of a European tour marking their 60th anniversary. Ahead of those shows, they will also play Anfield Stadium in Liverpool on 9 Jun. Tickets go on sale on Friday. Here's a video announcement thing.
The Yeah Yeah Yeahs have announced two UK shows this summer. They will play the Manchester Apollo on 5 Jun and London's Brixton Academy on 7 Jun. "OK UK!" say the band. "We are coming to lend our light to dark ages and holy shit are we ready to play our hearts out for you! Yeah it's been nine years since we've graced your club stages! Yeah we've got some tunes so fresh and so NEW to try out on you!" Tickets go on general sale on Friday.
Converge and Chelsea Wolfe will play two UK shows off the back of their collaborative album 'Bloodmoon'. They'll play the Alexandra Palace Theatre in London on 28 Jun and Albert Hall in Manchester on 29 Jun. Tickets are on sale now.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Rod Stewart mends roads
"I'm repairing the streets where I live, because no one [else] can be bothered to", he says in the first video, which shows him and a team of men shovelling gravel into potholes.
"This is the state of the roads near where I live in Harlow", he goes on in a second video, showing the very worn out road. "It's been like this for ages. People are bashing their cars up and the other day there was an ambulance with a burst tyre".
"My Ferrari can't go up here at all", he then laments, before complaining that there are "millions and millions of pounds" being spent on the nearby M11 motorway.
No word yet on whether or not Stewart can now get his sportscar to the shops.