TUESDAY 26 APRIL 2022 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: The US Supreme Court has declined to hear a song-theft dispute in relation to 'You Raise Me Up', the song made famous by Josh Groban or Westlife depending on where you live... [READ MORE]

TOP STORIES US Supreme Court declines to answer key question for dealing with song-theft disputes
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LEGAL Cher's dispute with Sonny Bono estate over termination right continues
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DEALS Sky Ferreira signs to Third Side Music
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LIVE BUSINESS Promotions announced at X-Ray Touring
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DIGITAL & D2F SERVICES Elon Musk's bid to buy Twitter approved
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INDUSTRY PEOPLE Face The Music Now Foundation to support survivors of sexual harassment and abuse in the music industry
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RELEASES Beabadoobee wants new single to make you "feel like you're tripping on shrooms"
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AND FINALLY... Pusha T comments on feud between Kanye and Kid Cudi: "It sucks"
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SNAPPER MUSIC - ACCOUNTS ASSISTANT & ADMINISTRATION (LONDON)
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US Supreme Court declines to answer key question for dealing with song-theft disputes
The US Supreme Court has declined to hear a song-theft dispute in relation to 'You Raise Me Up', the song made famous by Josh Groban or Westlife depending on where you live.

Lawyers for the Icelandic writer who claimed that 'You Raise Me Up' ripped off his earlier work 'Söknuður' wanted the Supreme Court to intervene in the dispute, mainly based on the argument that the US courts have proven inconsistent when considering cases of this kind. But the highest court in the US isn't seemingly up for hearing that argument.

'You Raise Me Up' was written by one time Eurovision winners Secret Garden, with the duo's Norwegian songwriter Rolf Løvland composing the music. They released a version of the song in 2002, with Groban's cover coming the following year, and the Westlife version being released in 2005. Numerous other covers have also been released over the last two decades.

In his 2018 lawsuit, Icelandic music-maker Johann Helgason argued that 'You Raise Me Up' ripped off his 1977 song 'Söknuður', suggesting that Løvland probably heard the earlier work when boarding an Icelandair flight in the mid-1990s, the airline having used Helgason's song as its boarding music at that time.

Ahead of going legal, Helgason and Icelandic collecting society STEF seemingly analysed the two songs and concluded that they were "97% alike".

The Icelandic songwriter then hired the services of musicologist Judith Finell, who is perhaps best known for her testimony on behalf of the Marvin Gaye estate in the big 'Blurred Lines' trial, where a jury concluded that Robin Thicke and Pharrell Williams had infringed Gaye's 'Got To Give It Up' when writing their hit. Her report backed up Helgason's claims regarding the similarities between 'Söknuður' and 'You Raise Me Up'.

However, the judge in the Californian court where Helgason filed his lawsuit wasn't especially impressed with Finell's work. He wrote that "the Finell reports fail to describe reliable principles and methodology, fail to apply such principles and methodology to the facts, and fail to properly apply the extrinsic test, rendering the reports unreliable, unhelpful, and inadmissible".

The so called 'extrinsic test' comes up a lot in song-theft cases - especially in the Californian courts where a lot of these lawsuits are filed - it being the process of ascertaining what elements two songs share and whether those elements are protected by copyright in isolation.

Lawyers for Løvland argued that both 'Söknuður' and 'You Raise Me Up' were clearly influenced by the Irish folk song 'Londonderry Air', best known for being incorporated into 'Danny Boy'.

So, that argument went on, the similarities between 'Söknuður' and 'You Raise Me Up' were where both songs lifted from the earlier public domain folk song. Take those elements out of the equation, they reckoned, and 'Söknuður' and 'You Raise Me Up' weren't that similar.

At first instance the judge concurred with the defence on all that, a ruling that was then upheld last year by the Ninth Circuit appeals court. The Helgason side subsequently decided to take the matter to the Supreme Court.

In their petition to the highest American court, the Helgason team focused on the use - in both the Californian court and the Ninth Circuit appeals court it sits under - of that 'extrinsic test', which - remember - the lower court judge reckoned hadn't been property applied by Finell in her expert report.

However, the Helgason team argued, in other parts of the US federal courts sitting under different appeals courts have taken a different approach to copyright cases of this kind. And that includes the Second Circuit appeals court, which - among other things - covers the New York courts, which also see their fair share of music industry litigation.

According to Law360, in the Second Circuit the so called "ordinary observer" test would likely be employed, and had that happened in the Californian courts, Helgason's team reckoned, summary judgment would have been denied and the case would have gone before a jury.

Law360 explains: "The test that courts in the Second Circuit use to look at copyright disputes dates to a ruling issued in a 1960 textile copyright case called Peter Pan Fabrics Inc v Martin Weiner Corp. That test relies on determining what similarities an 'ordinary observer' would discern between two things. In their petition, [the Helgason team] said [they] had proof that when Groban would perform 'You Raise Me Up' in concerts in Iceland, the audience sang along with the words to 'Söknuður'".

With that in mind, the Helgason petition opened by asking the Supreme Court: "In a copyright infringement case, when deciding whether two musical works are substantially similar, should the courts apply the ordinary observer test as is the rule in the Second Circuit, or should the courts apply the two-part extrinsic/intrinsic test as is the rule in the Ninth Circuit?"

For those seeking at least some clarity about how US copyright law should be applied in these always confusing and unpredictable song-theft cases, that's a decent question to ask. But, it turns out, not a question the Supreme Court is going to answer anytime soon. The 'Raise Me Up' litigation was among a list of cases knocked back by the Supreme Court yesterday.

Which pretty much means this particular song-theft dispute is at an end. Though the various debates it raised along the way are almost certainly not.

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Cher's dispute with Sonny Bono estate over termination right continues
The widow of Sonny Bono has urged a Californian court to throw out a recent legal claim made by Cher, which centres on how the pesky termination right in US copyright law impacts on a deal done in the 1970s after Bono and Cher split up both professionally and personally.

Bono and Cher began working together in the early 1960s, subsequently marrying and then enjoying much success together in both music and on TV. However, the marriage ended in 1975, and their double act ended soon after. Following all that, a deal was done in 1978 that provided Cher with a 50% share in the royalties being generated by the songs and recordings that had been released during the couple's time together, professionally and personally.

That deal has been in force ever since, but - it seems - Bono's widow Mary and the Bono Collection Trust that oversees the late musician's estate is now seeking to change that arrangement.

The Trust has been using the termination right - which allows creators to eventually terminate old deals via which they assigned their copyrights to other entities - in order to claim more control over some of Bono's catalogue. Not only that, but the Trust also argues that the terminations impact on the royalty and veto rights Cher secured in the 1978 deal.

Seeking court confirmation that, on that latter point, the Trust is wrong, Cher filed a lawsuit last year stating: "This action has become necessary because now, more than 40 years after plaintiff received her 50% ownership of her and Sonny's community property, Sonny's fourth wife and widow, defendant Mary Bono, claims that a wholly inapplicable statutory termination provision of the Copyright Act of 1976 has undone plaintiff's ownership of her royalties from the songs and recordings that she and Sonny made famous during their marriage, and deprived plaintiff of other long-established rights under the 1978 agreement".

But, according to Law360, in a hearing yesterday legal reps for Mary Bono argued that the Trust's interpretation of the termination right is the correct one, and that when US Congress created the termination right it intended said right to also cover any contractural arrangement regarding royalties.

For their part, legal reps for Cher insisted that precedent in the US courts favoured their position, that the termination right only applies to the ownership of an actual copyright, not any contractural royalty rights linked to the copyright.

Having heard both sides' oral arguments, the judge overseeing the case asked legal reps for Mary Bono and Cher to both submit written briefs outlining their legal arguments regarding the reach and technicalities of the termination right.

He also mused that - if the termination right does ultimately impact on Cher's royalty rights - that might result in the 1970s agreement needing to be revisited, given the royalty share in that agreement was partly provided in lieu of spousal support.

The case continues.

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Sky Ferreira signs to Third Side Music
Raising hopes that Sky Ferreira might actually release some more music one day, the musician has signed a new publishing deal with Third Side Music.

"Sky is an unparalleled career artist who has proven to be a true visionary with her craft time and time again", says Third Side Music's VP Creative Brontë Jane. "I'm honoured to welcome someone so incredibly singular to the TSM family".

Following numerous false starts, Ferreira released her acclaimed debut album, 'Night Time, My Time', in 2013. Despite talking about working on the follow-up since 2014, and often hinting that new music was on the way, it is yet to emerge.

In 2019 - when Pitchfork named her song 'Everything Is Embarrassing' the twelfth best of the 2010s - she said in an Instagram post that she would be "releasing new music right before the decade is over". She did not.

In addition to working on new music over the last eight years, Ferreira has also acted in numerous films, including Edgar Wright's 'Baby Driver'.

Back in March, she teased new music in a short clip on YouTube, which, along with this new publishing deal, might hint that she is actually going to release something at last.

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Promotions announced at X-Ray Touring
Booking agency X-ray Touring has announced the promotion of Jo Biddiscombe to the role of director, meaning she joins Martin Horne, Ian Huffam, Josh Javor and Scott Thomas on the agency's management board. She's been with X-ray since its launch and became an agent there in 2017.

It's one of four promotions at the agency, with Claire MacLeod becoming an agent at the firm and Paul Lomas and Hannah Edds being promoted to the role of booker.

Confirming all this, Scott Thomas says: "As we continue with the full return to live touring, and an intensely busy few years ahead across our roster, we're very pleased to refresh both our board and team of agents and bookers. This acknowledges the already invaluable input from the individuals involved, and the ideas and dynamism they'll bring to their new roles".

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Elon Musk's bid to buy Twitter approved
Elon Musk's bid to buy Twitter has got board approval, and what could possibly go wrong with that? The billionaire revealed he'd bought a 9.1% stake in the social media firm earlier this month before declaring his interest in taking complete ownership of the company. Twitter's board was initially resistant to that proposal, but has now backed Musk's $44 billion takeover package.

Ever since Musk confirmed that initial share purchase, there has been plenty of speculation about what the often out-spoken entrepreneur wants to do with a social network that continues to be both influential and controversial, despite never achieving the scale of most of its rival social media and user-generated content platforms.

Along the way, he's given a few hints about the logistical and strategic changes he might make once completely in control of Twitter, with the key theme being 'it's all about the free speech, baby!' And, indeed, that's what he led with in a statement that accompanied confirmation of his takeover bid getting board approval.

"Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated", he said.

"I also want to make Twitter better than ever", he went on, "by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans. Twitter has tremendous potential - I look forward to working with the company and the community of users to unlock it".

Of course, while Musk is correct that free speech is the bedrock of a functioning democracy, the right to freedom of expression is still a restricted right.

The laws of defamation, privacy and copyright all restrict free speech to an extent. Most media - even those with an overt political agenda - have traditionally had policies in place that insist editors restrict the flow of lies, bullshit and conspiracy theories. Pub landlords can always kick obnoxious shouty cunts off their premises. And if you stand at someone's front door yelling a string of offensive and threatening statements through the letter box, at the very least the local police will move you on.

It's no secret that social media platforms have struggled to deal with the complexities of regulating free speech online - never entirely sure what to do about the stack of controversial, unlawful, abusive and misleading content that the wonderful human race posts each and every day.

Certainly, the platforms have proven reluctant to become the judges, editors, landlords and police of the internet. But - as the years have gone by - all the them have had to perform each of those tasks in some way.

Law-makers in multiple jurisdictions are also in the process of increasing the legal responsibilities of the platforms in this domain, with the European Union's Digital Services Act - which will do just that - finalised last week.

However - under pressure from users, advertisers and investors - plenty of platforms have already introduced a version of the measures law-makers are now making mandatory, though the new laws might force those voluntary measures to be slightly more transparent and consistent.

Either way, measures of that kind - whether introduced to fulfil legal obligations or to placate nervous advertisers - are always controversial.

Half the world thinks they are token gesture and ineffective, and don't really do anything to combat the racism, sexism, xenophobia, homophobia, threats, abuse, bullshit conspiracy theories and dangerous political propaganda that floods the social networks every day. The other half thinks they are an undemocratic assault on free speech.

And everyone is convinced that the social media content policies - and the algorithms and filters that enforce them - are totally skewed against their personal political opinions.

So, it's tricky. Musk is right that more can be done and should be done to balance the need to tackle harmful content with the need to protect and promote free speech. Part of that is about developing more transparent approaches to content moderation, something law-makers want and Musk seemingly supports too. But a lot of it is about achieving nuance at scale. And nuance isn't necessarily the new Twitter owner's particular area of expertise.

Interesting times though. Of course, for the music industry, as big a concern as Twitter's content moderation policies is its total lack of music licences and unhelpful systems for dealing with copyright infringement on the platform. It remains to be seen if Twitter's position on all that shifts too once it's under new private ownership.

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Face The Music Now Foundation to support survivors of sexual harassment and abuse in the music industry
US music industry veteran Dorothy Carvello has launched the Face The Music Now Foundation, an organisation that will support survivors of sexual harassment and abuse in the music industry. It will also work to change a system of what it refers to as "institutionalised abuse" within the sector.

"As a survivor myself, I have seen and experienced first hand how sexual harassment and abuse shatters survivors psychologically, financially, and professionally", says Carvello.

"It's not a matter of money; it's about helping them put the pieces back together", she continues. "This is about the decades old and widespread abuse of power in the music industry. We want to help survivors find their voices and take back some of what they have lost".

Carvello, who was the first female A&R at Atlantic Records, detailed her personal experiences in her 2018 memoir, 'Anything For A Hit: An A&R Woman's Story Of Surviving the Music Industry'.

As well as speaking out about her own experiences, she has been particularly critical of the use of non-disclosure agreements by music companies to stop others coming forward. As part of these efforts, she has become a shareholder in all three major labels, with a view to eventually forcing - with the support of other shareholders - the termination of any NDAs currently in force over current or former employees relating to harassment.

"These large, publicly traded companies have been protecting predators and it's time their shareholders know how their money is being used", she says. "For far too long, the music industry has been turning a blind eye to sexual abuse and harassment, and we're long overdue for that to change".

Among those on the board of the new organisation are dean of MTSU's College Of Media And Entertainment Beverly Keel and songwriter Bruce Roberts.

"Throughout my career in the music industry, journalism and now academia, I've seen how the industry largely operates outside of traditional office norms", says Keel. "It's lonely being the only woman in the room, and by working with Dorothy and the Foundation, I am focused on empowering those who have experienced abuse to speak up, and to ensure that our future leaders don't perpetuate the abuse of power that has become all too common".

You can find further information on the Face The Music Now Foundation here.

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CMU:DIY: Next Industry Takeover Seminar is next week
The latest series of UD Industry Takeover Seminars - co-hosted by CMU:DIY - kicked off last week. And the next edition takes place next week on Thursday 5 May.

This one is all about music rights - and where record labels and music publishers fit into an artist's business. Things kick off with a CMU:DIY guide from CMU's Chris Cooke, who is then joined by a panel of experts including Davina Merchant from Downtown Music, Lara Baker from Songtrust, Shauni Caballero from The Go 2 Agency and Terence Daniel from PPL.

Get your tickets here.

Beabadoobee wants new single to make you "feel like you're tripping on shrooms"
Beabadoobee has released 'See You Soon', the latest single from her upcoming second album, 'Beatopia'.

"I feel like the idea behind 'See You Soon' is that it's meant to make you feel like you're tripping on shrooms", she says. "Or, I feel like the chorus especially, I want it to sound like a breath of fresh air, like, you know, like a realisation of some sort".

"I wrote it during a time where I was away a lot and making a lot of mistakes and doing a lot of things to help me figure a lot of stuff out", she goes on. "And I feel like I found the importance of doing that really, it was really therapeutic because it made me appreciate everything around me so much more".

"Being away and being by myself with my own thoughts, it was kind of like a punch in the face", she continues. "And I guess it's just really playing along with the fact that you know, it's OK to make mistakes, as long as it makes you a stronger person, as long as it makes everything makes sense. And it's important to be by yourself sometimes".

'Beatopia' is out on 15 Jul, and Beabadoobee has UK and Ireland tour dates scheduled for October, finishing with a show at London's Brixton Academy on 19 Oct. Listen to 'See You Soon' here.

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Pusha T comments on feud between Kanye and Kid Cudi: "It sucks"
Pusha T has said that the ongoing feud between his friends and collaborators Kanye West and Kid Cudi "fucking sucks". Though he's nevertheless glad that Cudi let him include a track that features all three rappers on his new album 'It's Almost Dry'. But, please note, Cudi himself has said that this will be the last time you will ever hear him and West on the same recording.

"It fucking sucks", Pusha T tells Vulture. "You know Cudi is my fucking brother to the end. Just navigating these relationships, this brotherhood, the arguing … it gets public. It's one thing for us to argue. We all argue - that's not a problem. It gets out there, whether it's Ye bickering first, or Cudi coming back with what he says. It's super fucked up".

West and Cudi have worked together many times in the past, of course, including on their collaborative project Kids See Ghosts. The fall out came when West announced on Instagram that Cudi would not appear on his 'Donda 2' album because of his former collaborator's supposed friendship with comedian Pete Davidson - the current partner of West's ex-wife Kim Kardashian.

"Just so everyone knows, Cudi will not be on Donda because he's friends with you know who", said West in a handwritten note in the now deleted post.

Cudi responded on Twitter, saying: "We talked weeks ago about this. You're whack for flipping the script and posting this lie just for a look on the internet. You ain't no friend. BYE".

He also posted a comment under West's original post, saying: "Too bad I don't wanna be on your album you fuckin dinosaur hahaha. Everyone knows I've been the best thing about your albums since I met you".

When new Pusha T track 'Rock N Roll' - featuring both West and Cudi - turned up on 'It's Almost Dry', there was some hope that this meant that the two rappers had resolved their differences. But Cudi was keen to quickly clarify the situation and dash all that hope.

He tweeted last week: "Hey! So I know some of you heard about the song I got with Pusha. I did this song a year ago when I was still cool with Kanye. I am not cool with that man [now]. He's not my friend and I only cleared the song for Pusha cuz that's my guy. This is the last song you will hear me on with Kanye".

Recalling the recording session for 'Rock N Roll', Pusha T says in the Vulture interview: "The day we made this record, everybody was so fucking happy".

"Ye's chopping the Beyonce sample", he goes on. "Cudi happens to come in that day. We see each other, and I hadn't seen him in a while. He's like, 'I gotta get on a record. Are you crazy?' Cudi did, like, three or four different references. Beyonce cleared the sample. There was so much great energy around the making of that record".

"You know, time passes, and issues come up", he adds. "Cudi [is] really doubling down on this being the last time we're going to hear them two together … He's a super-convicted motherfucker. So I appreciate him clearing it up. He did what he did for his bro, and I love him for that".

So, have a listen to (possibly) the last ever track to feature both Kanye West and Kid Cudi, 'Rock N Roll', here.

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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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