|THURSDAY 31 MARCH 2022||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The various comedians who have sued Pandora over unlicensed jokes have consolidated their lawsuits into one action, while arguing that the fact the streaming firm has removed their comedy routines from its platform since they went legal is an "outright admission that they knew they were infringing the copyrights of the works"... [READ MORE]|
Comedy copyright claims against Pandora consolidated into one lawsuit
Comedians Nick Di Paolo, Andrew Dice Clay, Bill Engvall and Ron White - and the estates of Robin Williams and George Carlin - have all sued Pandora making basically the same allegations against the streaming firm. Indeed - with the exception of the obligatory section outlining how amazing their careers have been - each comedian has basically filed the same lawsuit. Which means it's quite easy to now consolidate all that litigation.
The comedy legal battle all centres on the fact that when streaming platforms stream recordings they are usually exploiting two distinct sets of rights - because there is a copyright in the recording, but also in the underlying work contained in that recording.
So, in terms of music, we might call those the recording rights and the song rights respectively. And in music, streaming firms need to secure two sets of licences, one set from the record industry covering recording rights, and another set from the music publishing sector covering song rights. And in Pandora's case, the latter would be covered by licences from the US song right collecting societies like BMI and ASCAP.
In comedy, likewise, there is one set of rights in the recording and another in the routine being performed in that recording, the latter a 'literary work' in copyright terms. But to date where streaming services carry comedy content they only have deals with the labels or distributors that control the recordings, which means that the literary works contained in the recordings have not been properly licensed.
Spotting this licensing gap with comedy and other spoken word content, two companies launched in the US to manage the licensing of the literary works of comedians and other spoken word creators - Spoken Giants and Word Collections. The former was involved in a spat with Spotify last year over its under-licensed comedy content, while everyone involved in this Pandora litigation is working with the latter.
As with the original lawsuits, the newly combined legal action points out that Pandora itself previously raised concerns about the under licensing of spoken word content on its platform when it was still a standalone publicly listed company and was making filings with the US Securities And Exchange Commission.
The new legal filing argues that Pandora could have secured literary work licences from each comedian or declined to stream their material, but "instead, Pandora chose to infringe". And, the comedians argue, that infringement was wilful, not least because of what it stated in those old SEC filings.
"In Pandora's own SEC 10K public filing with the SEC from 2011 to 2017", the lawsuit says, "Pandora admitted in its risk factors ever year that it performs spoken-word comedy content 'absent a specific licence from any performing rights organisation' and it has never obtained a licence for the underlying literary works for the sound recordings of spoken-word comedy content that it streams".
"Pandora further admitted that it 'could be subject to significant liability for copyright infringement and may no longer be able to operate under [their] existing licensing regime'". This admission was only withdrawn, the lawsuit adds, when Sirius XM bought Pandora.
Meanwhile, "since the filing of the lawsuits against Pandora by plaintiffs, which are now consolidated in this action, Pandora has proceeded to remove each comedian's catalogue from their platform".
"While Pandora has refused to comment verbally on these lawsuits", the legal filing argues. "Their actions in removing the works from its platform constitute an outright admission that they knew they were infringing the copyrights of the works, which they admitted in SEC filings, and now wish to belatedly stop the bleeding having been caught and sued".
It remains to be seen how Pandora responds.
Choreographer on Charlie Puth video reignites debate about dance copyright on Fortnite
It's by no means the first time Epic has faced a legal claim of this kind, with a flurry of lawsuits filed over Fortnite emotes a few years back when the gaming platform first became a global phenomenon.
Though many of those legal claims stalled, partly because of complexities around registering the copyright in choreography in the US. However, lawyers working for LA-based choreographer Kyle Hanagami hope this case is stronger.
If you'd like a formal description of Fortnite emotes, Hanagami's lawsuit provides one. "Epic has created a marketplace for entertainment content that happens to be within Fortnite", the lawsuit explains. "As a free-to-play video game, Epic allows players to download and play Fortnite for free. Fortnite is supported by in-game transactions where players can purchase virtual currency, called 'Vinderbucks' or 'V-Bucks'".
"The players in turn use V-Bucks to purchase customisations in an electronic marketplace for their in-game avatars", it goes on. "These customisations include new characters, pickaxe modifications, glider skins, clothes and emotes (movements or dances). There are four types of emotes: common emotes, uncommon emotes, rare emotes, and epic emotes. The 'rarer' the emote, the more expensive or harder it is to obtain".
The emote that is accused of ripping off Hanagami's 'How Long' dance routine is called It's Complicated", which is apt, because when it comes to the copyright in dance routines things are quite complicated. Copyright does protect choreography providing it is fixed (so written down or captured in some way), although generally copyright seeks to protect dance routines rather than individual dance moves.
As in music cases, where the courts are generally uneasy about concluding a few notes of a song can be protected by copyright in isolation, with choreography there's the debate about how we distinguish between moves and routines.
Now, in the US there is a copyright registration process, which means we have some clarity on whether any one work is sufficient to be protected by copyright, because if it is accepted by the US Copyright Office then we can assume it is. Although, as with music cases, there can still be problems down the line if someone lifts a key element of the copyright protected choreography, but only that element, so we are back to debating "can that element be protected by copyright in isolation?"
Though, with many of the initial choreography cases against Epic a few years back, the plaintiffs had only actually begun the process of registering the copyrights in their choreography as they sued the gaming firm. With the registration process still going through the motions - and the complexities over when a dance routine is original and substantial enough to have copyright protection - those lawsuits stalled.
However, the copyright in Hanagami's routine from 'How Long' has been registered. It was properly formalised in Puth's much streamed music video. And the routine is possibly more substantial than with the movements Epic was previously accused of ripping off. Although, at the same time, the It's Complicated emote only uses part of Hanagami's routine and has movements not included in the 'How Long' choreography so - you know - it's still complicated.
The new lawsuit actually acknowledges the previous litigation, reckoning that Epic has actually started licensing some choreography for its emotes in more recent years, but only when it reckons it can get a very good deal.
"On information and belief, because of the lawsuits, Epic began to approach some artists about licensing choreography", the lawsuit states. "However, on further information and belief, Epic typically approaches young and/or less sophisticated artists, like those who are catapulted to fame on social media platforms like TikTok, about licensing choreography for pennies on the dollar".
It then adds: "Hanagami, a sophisticated businessman and established choreographer who is aware of the value of his choreography generally and the registered choreography specifically, was never approached by Epic about a licence".
Commenting on the new lawsuit, Hanagami's lawyer David Hecht told reporters: "Epic is profiting from my client's hard work, and their infringement could not be more blatant. Epic's sale of Kyle's registered choreography as an item in the Fortnite Item Shop without his knowledge or authorisation is fundamentally unfair".
"He felt compelled to file suit to stand up for the many choreographers whose work is similarly misappropriated", he added. "Copyright law protects choreography just as it does for other forms of artistic expression. Epic should respect that fact and pay to license the artistic creations of others before selling them".
Brian Wilson sued by ex-wife over $50 million song rights deal with Universal Brian Wilson is involved in a legal battle with his ex-wife Marilyn Wilson-Rutherford over a $50 million deal he signed late last year in relation to his songs catalogue with Universal Music Publishing.
According to legal papers, there were two elements to the mega-bucks deal between Wilson and the publisher, which already controlled his songs catalogue (although Wilson and his father originally set up their own publishing business in the early 1960s, that was subsequently sold with the catalogue ultimately ending up with Universal).
The first element of the big deal saw Universal acquire the songwriter share of income Wilson retained under his original publishing deal. The second element related to Wilson's termination right under American copyright law, via which he could seek to reclaim the US rights in his songs. But, instead of doing that, he took a one-off payment from the major. Of the $50 million, nearly $32 million related to the first element, and the rest to the second element.
The dispute with Wilson-Rutherford stems from the couple's 1981 divorce settlement. That settlement gave Wilson-Rutherford a 50% interest in any income Wilson received from the songs he wrote during their marriage, so from 1964 to 1978. Which means she needs to be cut into the big old Universal deal.
Wilson has paid his ex-wife $11 million in relation to the first element of the deal, which is 50% of the slice of the $32 million that was allocated to songs written between 1964 and 1978. However, there is a dispute over whether she should also be due a share of the monies paid in relation to the termination right.
Brian Wilson's lawyers argue that the 1981 divorce settlement doesn't apply to the termination right part of the deal, because he didn't have that right at the point the settlement was signed.
After all, the right to terminate a past copyright assignment doesn't kick in until a certain number of years after that assignment took place - 35 years for deals signed since 1978, but 56 years for deals - like Wilson's original publishing deals - that pre-date 1978.
All that said, it was the 1976 US Copyright Act that put the current termination right rules in place, so it did exist as a future right in 1981.
All of which means Wilson-Rutherford reckons she's due a cut of the termination right payment, but Wilson reckons she is not. Although he did seemingly offer a $3.3 million payoff in an effort to settle the dispute, but without success. Wilson-Rutherford, apparently, wants $6.7 million.
All this went legal in February when Wilson-Rutherford sued in the LA courts, meanwhile - according to Billboard - last week Wilson's lawyers filed papers with the California federal court, where the case will now seemingly proceed. Fun times.
The Wanted's Tom Parker dies
A statement posted on the band's social media accounts yesterday read: "Max, Jay, Siva, Nathan and the whole Wanted family are devastated by the tragic and premature loss of our bandmate Tom Parker, who passed away peacefully at lunchtime today surrounded by his family and his bandmates. Tom was an amazing husband to Kelsey, and father to Aurelia and Bodhi. He was our brother, words can't express the loss and sadness we feel. Always and forever in our hearts".
His wife Kelsey added: "It is with the heaviest of hearts that we confirm Tom passed away peacefully earlier today with all of his family by his side. Our hearts are broken, Tom was the centre of our world and we can't imagine life without his infectious smile and energetic presence".
"We are truly thankful for the outpouring of love and support and ask that we all unite to ensure Tom's light continues to shine for his beautiful children", she went on. "Thank you to everyone who has supported in his care throughout, he fought until the very end. I'm forever proud of you".
Parker joined The Wanted in 2009, following mass auditions to find members for the group which were orchestrated by Jayne Collins, who had put together The Saturdays two years earlier. With all five members in place, The Wanted then released their debut single, 'All Time Low', the following year, which went to number one in the UK.
The band released three albums before going on hiatus in 2014. The same year Parker released a one-off solo single, a collaboration with Richard Rawson - aka Fazer of N-Dubz - called 'Fireflies'. In the following years he also appeared as a contestant on 'Celebrity Masterchef' and 'The Jump', and in 2017 joined the cast of the UK tour of 'Grease'.
Following Parker's cancer diagnosis in 2020, The Wanted began discussing a reunion, announcing their return in September last year. That month they took part in a charity concert - which came off the back of a Channel 4 documentary fronted by Parker, titled 'Inside My Head' - to raise money for cancer charities Stand Up to Cancer and The National Brain Appeal. They also released a greatest hits album and their first new single for seven years, 'Rule The World'.
Earlier this month, they completed a twelve date UK tour, via which they also raised money for The Brain Tumour Charity. Parker made brief appearances on stage at select dates, with his final show at the M&S Bank Arena in Liverpool on 17 Mar.
A number of times in 2021, Parker had said that his tumour was responding to treatment, tweeting last November: "I'm sat here with tears in my eyes as I tell you we've got my brain tumour under control. We had the results from my latest scan… and I'm delighted to say it is STABLE. Such a mix of emotions. We couldn't ask for any more really at this point; a year or so in to this journey".
Parker's autobiography, 'Hope: My Inspirational Journey', is due to be published in July.
Kelly Lee Owens announced LP.8
Owens began working on the album immediately after the release of her last record, 'Inner Song', in 2020. Realising that she would not be able to tour around the release of 'Inner Song', due to the pandemic, she instead set about making music with no pressure or deadline.
Relocating to Oslo, she worked with producer Lasse Marhaug on music that they envisioned being somewhere in between Throbbing Gristle and Enya. And if that's not something you want to hear, then I can't help you.
Shortly after completing work on the new record, she called her label Smalltown Supersound and told them that she had just finished making her "eighth album". In an effort to explain this, she says: "For me, eight meant completion - an album that will ripple infinitely with me personally". At the very least, this is hopefully confirmation that we can expect at least five more albums from Owens.
Alan Braxe and DJ Falcon team up for new EP, Step By Step
"In the early 2000s we each released our first respective music projects in collaboration with Thomas Bangatler on his Roulé label", say Braxe and Falcon - aka cousins Alain and Stéphane Quême. "It was a time of youthful nonchalance in which we barely knew what we were doing. It was a world of discovery, just making music without any preconceived notions or rules. Our state of mind at the time was very DIY, similar to punk, but with different types of instruments".
"Twenty years later the musical landscape and tools to make music have changed exponentially and become more complicated", they go on. "Using modular synthesisers in the production of our new music and the happy accidents they generate have helped us reconnect with the punk spirit of the early days, freeing ourselves from convention. Our love for the oscillation between melancholy and hope that emerges from our use of repeated musical phrases and loops is as inspiring to us today as it was 20 years ago".
Of 'Step By Step' the track, the duo say: "The instrumental could be seen as a downtempo variation of the Roulé era club tracks. Panda Bear wrote and performed amazing vocals and it transformed the instrumental into a beautiful song, which in its final form could be defined as a power ballad with French house DNA".
You can listen to 'Step By Step' and 'Creative Source' now. Both tracks are also available as a twelve-inch white label, while the full EP will be out on 26 Aug.
US record industry collecting society SoundExchange has appointed Anjula Singh as Chief Financial Officer and Chief Operating Officer. "I am THRILLED to announce Anjula's well-deserved promotion to Chief Financial Officer and Chief Operating Officer", says CEO Michael Huppe. "Anjula has been a tremendous partner over the years in advancing the mission of SoundExchange. Her immense institutional knowledge, mastery of our business's complexities, and ability to work across teams will be critical to our strategy and success as we move into the next chapter".
Flume has released new track 'Sirens', featuring Caroline Polachek on vocals and produced by Danny L Harle. "I was living by myself in London and it was the darkest time in the pandemic", says Polachek about writing the song. "I was really going through it, feeling so small, unable to control anything in the world, and the lyric 'sirens' was in reference to constant ambulances I was hearing". Flume's new album, 'Palaces', is out on 20 May.
Tom Odell is back with new single 'Best Day Of My Life'. "I guess the idea behind this song was from my experience of sadness", he says. "After you've been through a really hard time, there are these incredible peaks of euphoria, these moments of almost uncontrollable joy, which you're almost suspicious of".
Superorganism have released new single 'It's Raining', featuring Stephen Malkmus and rapper Dyland Cartlidge, and sampling Scott Walker. "We've been enormous fans of Stephen Malkmus forever, and we loved the idea of combining Malkmus and Scott Walker into a strange almost broken-sounding hip hop track", say the band. "We'd done a remix for Dylan Cartlidge and absolutely loved his flow; we asked him if he'd like to try a verse and he fit so naturally. With Dylan being from the north of England and Stephen in Portland, the rain theme is all the more fitting for them too".
Ibeyi have teamed up with Jorja Smith for new single 'Lavender And Red Roses'. "We knew we wanted to create something with Jorja that would be different from what we've done previously that would allow us to connect with the true meaning of the song", says Ibeyi's Lisa-Kaindé. "When we came across the three sisters of fate from the Greek mythology that personify fate we knew immediately that it would be the right idea".
Plastikman - aka Richie Hawtin - and Chilly Gonzales have released a short film to accompany 'Consumed In Key', their new version of classic Plastikman album 'Consumed', which is out tomorrow.
Nigo has released the video for 'Hear Me Clearly', featuring Pusha T, taken from his new album 'I Know Nigo!'
Totally Enormous Extinct Dinosaurs will release his second album (and first for ten years), 'When The Lights Go Out', later this year. From it, this is 'Blood In The Snow'.
Pure Reason Revolution have released new single 'Phantom'. Their new album, 'Above Cirrus', will be released on 6 May.
Farrah has released new single 'Freewheeling'. "It describes that feeling of confusion when someone isn't sure about you - wondering if you should respect yourself and walk away or wait around for answers", she says of the song. "I hope that people who listen to this song feel empowered enough to realise they are more than enough on their own and don't need to settle for someone who is unsure because someone else will see and deserve your true value".
Eliza has released new single 'Straight Talker'.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
HYBE founder on BTS fans' NFT concerns: "As of now, we haven't announced anything"
In a new interview with Time Magazine, Bang reflects on the reaction to an announcement by HYBE last year that it planned to launch its own NFT exchange in the future. The responses from the stock market and K-pop fans were very different, he notes.
"When we said we were going to pursue an NFT exchange, the market reacted with enthusiastic welcome, but fans showed concern and at times aggressive feedback", says Bang. "All I'd like to say to fans is: As of now, we haven't announced anything. We haven't [publicly] discussed what kind of product we would service or what type of product we would make, although I fully understand the concern".
Investors are keen on NFTs for their perceived quick financial returns, while others (not just BTS fans) see environmental concerns - because of the high amount of energy consumed through the running of NFTs and the blockchains on which they sit - as a reason to avoid them at all costs.
However, Bang adds, one of the reasons the company opted to launch its own NFT exchange, rather than partnering with an existing platform (although it is working in partnership with NFT exchange operator Dunamu) was in part so that the company could "respond directly to fan concerns".
"I'm thinking a lot about policies and technical measures that can reflect these concerns as well", he says. Still, having floated HYBE on the stock exchange two years ago, he notes that this is one example of how you have to balance the different demands made on a publicly listed company by shareholders and consumers.
"We are doing our best to provide more value and experience to fans while trying to satisfy the market's quick demands, which can be difficult", he says. "That being said, quite some time has passed [since our initial NFT exchange announcement]. We have some interesting projects in the works and I think we'll be able to show them to you soon. And when that happens, I'd like to say cautiously, that perhaps you'll find yourself not thinking, 'These guys don't understand why we hate this'".
Whether HYBE can satisfy investors' desire for increasing returns and fans' worries about the planet with an NFT project remains to be seen. Various NFT providers have made claims about selling tokens with a lower environmental impact - and the Ethereum blockchain where most NFTs are minted is shifting to a system that guzzles less energy - though concerns aplenty remain.
Others worry that the entire Web3 movement is an effort to rebuild the internet as a money generator for a relatively small number of people at the top, to the ultimate detriment of everyone else - despite various claims that the opposite is the principle objective. All of which makes it difficult to convince critics that, actually, your NFT project is a nice, fluffy one that will do no harm.
Anyway, this whole Time interview is very interesting, so you should go and read it here.