WEDNESDAY 7 SEPTEMBER 2022 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: As the song theft legal battle over Taylor Swift's 'Shake It Off' continues to go through the motions, her legal team are keen to block two of the plaintiffs' expert witnesses and limit the testimony of a third. The experts, you see, lack expertise. Or so say Team Swift... [READ MORE]

TOP STORIES Taylor Swift asks for expert witnesses to be dropped from upcoming Shake It Off trial due to lack of expertise
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LEGAL Investigative journalist opposes call to testify in ongoing R Kelly trial
Spencer Elden appeals ruling in Nevermind artwork case

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LABELS & PUBLISHERS Fabric launches new record label
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RELEASES Björk releases first single from new album
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GIGS & FESTIVALS Justin Bieber to "take a break" from world tour due to ongoing health issues
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ONE LINERS Blackpink, MMF, Brian Johnson, more
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AND FINALLY... Mark Morrison abandons bid to become mayor of Leicester
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Taylor Swift asks for expert witnesses to be dropped from upcoming Shake It Off trial due to lack of expertise
As the song theft legal battle over Taylor Swift's 'Shake It Off' continues to go through the motions, her legal team are keen to block two of the plaintiffs' expert witnesses and limit the testimony of a third. The experts, you see, lack expertise. Or so say Team Swift.

This all relates to the US lawsuit being pursued by songwriters Sean Hall and Nathan Butler, who reckon Swift's 2014 hit rips off their 2001 song 'Playas Gon Play'. The latter song, recorded by 3LW, includes the lyric "the playas gon play/them haters gonna hate", while 'Shake It Off' famously includes the line "the players gonna play, play, play, play, play/and the haters gonna hate, hate, hate, hate, hate".

The Swift side initially got the lawsuit dismissed on the basis lyrics about players playing and haters hating were too generic to be protected by copyright in isolation. But the litigation was reinstated by the Ninth Circuit appeals court, and subsequent efforts to get it dismissed a second time - mainly based on the same arguments as before - have been unsuccessful.

With the whole matter now heading to trial, Swift's lawyers have submitted new court papers taking issue with some of the expert witnesses that Hall and Butler's team intend to call. In a bid to have those experts' testimonies cut back or cut entirely, the Swift side either question each expert's credentials, or take issue with things they have said in depositions that occurred or documents that were submitted during the discovery phase of this case, or both.

Among the three targeted witnesses is Loren Kajikawa, a Professor at George Washington University and one of those musicologists that pop up in song theft disputes of this kind. His testimony will focus on the application of the so called 'extrinsic test' that is usually employed in copyright cases like this one, which Swift's lawyers describe as being the process of assessing "the objective similarities of the two works, focusing only on the protectable elements of the plaintiffs' expression".

But, argue Team Swift, Kajikawa "is not qualified, fails to apply the extrinsic test and instead provides his subjective views". The key problem, they add, is that this particular song-theft dispute is all about the lyrics - so basically it centres on the comparison of two literary works. But Kajikawa "has no degree in literature and no training in comparative literary analysis (beyond the possibility he might have once taken an undergraduate class)".

Swift's lawyers go on: "He has not read any books on comparative analysis of lyrics or comparative linguistic analysis, and he does not have any understanding as to the methodology used in the comparative linguistic analysis of two works. He also does not teach literature or poetry and has never written a song or lyrics".

In fact, they add, "Professor Kajikawa's area of study is the dynamics of race and politics. [And] like the person with a hammer who sees everything as a nail, Professor Kajikawa argues that anyone who doubts the originality of combining a 'players gonna play' phrase with a 'haters gonna hate' phrase 'signals an inability or unwillingness to recognise the validity of black vernacular expression'".

"That assertion is not only insulting and baseless", the Swift filing goes on, "but irrelevant to the extrinsic test, which 'assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff's expression', not subjective assertions as to the 'validity' of a claimed source".

The next expert whose expertise is being questioned is there to offer an opinion on a specific question, which is: if the court was to conclude that 'Shake It Off' infringed 'Playas Gon Play', "what portion of the profits [from] 'Shake It Off' are attributable to that song's [claimed] use of lyrics from the song 'Playas Gon Play'".

That expert is New York-based lawyer Bob Kohn and, say Team Swift, while he may well be an expert on music industry business practices and music licensing, he lacks expertise regarding that specific question. "He plainly is not qualified to provide that or any of the other opinions he has expressed in this case", the Swift side claim, "and his deposition testimony confirms he is simply making it up as he goes along".

Citing some of what Kohn seemingly said in that deposition, the new filing goes on: "Plaintiffs rely on an expert who opines that the allegedly infringed combination of public domain player and hater phrases is the 'heart' of 'Playas Gon Play', without which 'Shake It Off' would lose all 'force, meaning, and energy'. But that expert is a lawyer who plays no musical instruments and claims expertise because he saw The Beatles on 'The Ed Sullivan Show' and - like most if not all of us - listens to music".

Finally, there is New York-based accountant Juli Saitz, who is also providing an opinion in relation to the 'Shake It Off' profits, and what Hall and Butler might be able to claim if they prevail in court. The Swift side argues that one of her expert opinions in that domain is just plain wrong, while also criticising her rebuttal of a report compiled by one of their experts, Barry Massarsky.

On the former point, they write: "Ms Saitz argues that it would be improper to allow a copyright defendant to deduct taxes in calculating the defendant's profits from the alleged infringement, because that would result in 'double-taxation' when the copyright plaintiff is taxed on an award of profits. Yet she admitted that is just the result of the general principle of the Internal Revenue Code that each taxpayer pays taxes on the income he, she, or it receives".

"Moreover", they add, "Ms Saitz's opinion that copyright defendants should not be allowed to deduct taxes in calculating profits is trumped by the established law that they may do so".

With all that in mind, the Swift side concludes, "the court should exclude the expert opinions, testimony and reports of plaintiffs' experts Mr Kohn and Professort Kajikawa, and should exclude Juli Saitz's expert opinions, testimony, and reports as to the deduction of taxes and Mr Massarsky's report and methodology".

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Investigative journalist opposes call to testify in ongoing R Kelly trial
The journalist who has been reporting on the R Kelly sexual abuse allegations since 2000, Jim DeRogatis, filed a motion yesterday seeking to quash a subpoena from the defence in the musician's current trial that orders him to testify.

It was Chicago-based DeRogatis who, in the early 2000s, was sent a copy of the tape that seemed to show Kelly sexually abusing a fourteen year old girl, named as 'Jane' in the current trial. At that point the journalist had already reported on allegations that Kelly was using his fame to meet and sexually abuse underage girls.

DeRogatis handed the tape over to Chicago police instigating the first criminal investigation into Kelly's alleged abuse of women and teenagers. That investigation ultimately led to the 2008 trial where Kelly was acquitted, in no small part because Jane denied that it was her on the tape and refused to cooperate with prosecutors.

Kelly's current trial has focused a lot on the alleged sexual abuse of Jane - who is now cooperating with prosecutors and says that it is her seen on that tape. Also in the spotlight are alleged efforts by Kelly and his team to subvert the 2000s criminal investigation and trial, and to retrieve various leaked videos that allegedly showed the musician sexually abusing minors.

It's charges relating to that alleged cover-up which are being battled by Kelly's co-defendants in this case, Derrel McDavid and Milton 'June' Brown. And it's McDavid's lawyers who want DeRogatis to testify.

McDavid's team are keen to question and scrutinise the authenticity and distribution of the leaked videos, including the one sent to DeRogatis, seemingly as part of their general bid to prove McDavid was not aware at the time that the tapes Kelly was keen to reclaim in the 2000s contained footage of alleged crimes being committed.

The McDavid team have also accused the former lead prosecutor on this case, Angel Krull, of improperly communicating with the journalist via a Gmail account back in 2019. Although, according to the Chicago Tribune, DeRogatis says that was simply him seeking to cultivate sources for his ongoing reporting on this story, and "Angel never gave me a damn thing - no federal prosecutor ever did".

DeRogatis was called to testify in the 2008 trial, but declined to answer questions by citing First and Fifth Amendment protections under the US Constitution. He shouldn't have to answer questions in court this time either, his lawyers argue, because multiple other witnesses have already testified about the "veracity of the videotape", making his proposed testimony unnecessary.

Meanwhile, "because Mr DeRogatis' role has been as an investigative reporter, compelled testimony ... is invasive as to his news gathering methods and cumulative of the actual sources and their source materials".

It remains to be seen what the judge overseeing the case reckons to those arguments. The Kelly trial is due to resume later today after the courthouse where it is taking place was closed yesterday due to "system failures".

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Spencer Elden appeals ruling in Nevermind artwork case
The man who, as a baby, appeared nude on the famous cover of Nirvana's 'Nevermind' album is appealing the recent dismissal of his lawsuit in relation to the artwork.

Spencer Elden sued Nirvana, their label and other people involved in creating the 'Nevermind' cover in August 2021. Claiming that Elden's guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so".

The various defendants in the case have argued that Elden has previously spoken positively about appearing in the artwork and repeatedly recreated the image as a teenager and adult, albeit wearing shorts. Though they actually managed to get the lawsuit dismissed on the basis Elden had left it too late to sue.

With the specific laws Nirvana et al were accused of violating, there is a ten year statute of limitations. That doesn't mean Elden would have had to sue within ten years of the photograph being taken, but - technically speaking - he should have gone legal within ten years of his eighteenth birthday. So the deadline for filing the lawsuit was 2019.

Elden's lawyers initially missed a deadline to answer those claims, which resulted in the lawsuit being dismissed but with the option to refile. In their amended lawsuit they argued that the statute of limitations point should be rejected because Nirvana and their label continue to distribute 'Nevermind' with Elden's image on it, meaning that they continue to harm their client even today.

But last week the judge hearing the case rejected those arguments and declined to allow Elden to submit another amended lawsuit. However, Elden's team are now appealing that ruling, standing by their interpretation of the relevant statute of limitations in cases like this.

They say in a statement that the judge's ruling last week was based on "a misunderstanding of the statute of limitations", and that the judgement "contravenes over fifteen years of well-settled precedent and the legislature's intended purpose of the law".

They add: "Quite simply, under the statute and the case law the ongoing distribution of Spencer's child pornography on the 'Nevermind' album cover repeatedly violates the baby depicted on the cover even though he is now all grown up".

"The 'Nevermind' cover was created at time when Spencer was a baby", they go on, "and it is impossible for him to age out of this victimisation while his image remains in distribution".

According to CBS, one of Elden's attorneys, Bob Lewis, has also responded to the other key argument from the Nirvana side, ie that Elden has previously spoken positively of the artwork and recreated the image, and that that contradicts his current claim that his appearance on the album cover caused him harm.

But Lewis told 'CBS MoneyWatch' that this behaviour is "consistent with how sex abuse victims deal with trauma". He added: "They oftentimes will embrace their abuser for quite some time, so it's not uncommon for someone in his situation to be confused about what happened to him and not know exactly how to handle it".

"But in recent years", Lewis added, "he's come to terms with that and understands that having his pictures published like this has done him great harm, so we're suing to prevent that".

And so the 'Nevermind' artwork dispute continues.

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Fabric launches new record label
London nightclub Fabric has announced the launch of new record label, Fabric Originals, which aims to release "special projects from the artists that form the present and future of boundary pushing club music globally".

The first release on the label with be a split twelve-inch from Eris Drew and Octo Octa. Other records from DJ Bone, Helena Hauff, I Jordan, Sherelle, Lcy and Marcel Dettmann are also on the way.

Eris Drew's contribution, 'Day After A Night With U', says Fabric, "draws on elements of the artist's classic keyboard orchestrations within the context of acid breaks, adding chest-rattling bass notes to anchor the track's eyes-down 4/4 rhythm".

"The track's spiritual sensibilities push to the fore further with an infectious soul vocal sample and vintage feeling synths", it adds, "alongside an almost spiritual mysticism that permeates the song's skittering production and upbeat melodics".

"A sensual reverberation of shared love breaking the shackles of anxiety, the track's acid line rips through the centre of the ornamental keyboards, just like the coming together that inspired the night that ripped open Eris' heart to fill her with love during a personally difficult time".

Meanwhile, Octo Octa's 'Stars & Water' was created in reaction to Drew's track, and, says the label, "takes on a similarly heartfelt tone. Finding cues from a classic house sound, the track employs deftly swinging rhythms to build progressive energy".

"The track's analogue bassline", they go on, "contributes to its propulsive tempo before a beautifully spacious switch up leads the track from a high energy workout to a half-time wander through the track's sonic oasis, before an ecstatic build towards a final climax. 'Stars & Water' carries strength and sweetness; bouncing and drifting to move one's body, but also their heart".

Fabric Originals will sit alongside the club's long-running mix series and its existing Houndstooth label, which will be celebrating its tenth anniversary in February.

Listen to 'Day After A Night With U' here and 'Stars & Water' here.

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CMU:DIY: Artist:Entrepreneur Day returns to Manchester
The Artist:Entrepreneur Day from the Featured Artists Coalition and CMU:DIY is returning to Manchester next month in partnership with English Folk Expo.

Once again three FAC artist entrepreneurs will talk about their individual artist businesses, explaining how music-makers go about building a fanbase, and generating revenues from their music rights, shows and fan relationships.

They will be joined by CMU's Chris Cooke and a team of music industry experts to provide insights, ideas and lots of practical advice for early-career music-makers looking to build a business around their music.

This is all happening on Saturday 15 Oct at Home in Manchester. Info and tickets here.

Björk releases first single from new album
Björk has released 'Atopos', the first single from her upcoming new album 'Fossora', alongside the first of a series of videos created by photographer Viðar Logi.

"It is a good intro [to the album], kinda like [its] passport", she said on Twitter. "Sonically a heavy bottom-ended bass world, we have six bass clarinets [and] punchy sub drilling, nesting and digging us into the ground".

"The lyrics are inspired by what Roland Barthes described as the unclassifiable 'other'", she added. "Our differences are irrelevant our union is stronger than us".

"Because of the enormous importance of bass in this song", she said in a post on Instagram, "please could you play it loudly?"

Well, as she asked so nicely, you should crank the volume up on this right now.

'Fossora' is set for release on 30 Sep.

By the way, if you're not listening to Björk's new 'Sonic Symbolism' podcast, in which she discusses the creation of each of her nine previous albums, you really should remedy that right away.

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Justin Bieber to "take a break" from world tour due to ongoing health issues
Justin Bieber has announced that he is taking another break from his world tour, which was due to run through to the end of March next year, due to ongoing health issues.

The musician postponed US tour dates in June after revealing that he had been diagnosed with Ramsay-Hunt Syndrome, which had caused part of his face to become paralysed.

He resumed the tour at the end of July with a show at the Lucca Summer Festival in Italy, before playing a number of concerts in Europe in the month that followed, and then travelling to Brazil to play Rock In Rio at the weekend.

From there, he was due to tour South America, and then travel on to South Africa, the Middle East, Asia, Australia and New Zealand, before returning to Europe for more shows there - including dates in the UK and Ireland.

However, in a statement on social media last night, he told fans: "Earlier this year, I went public about my battle with Ramsay-Hunt Syndrome, where my face was partly paralysed. As a result of this illness, I was not able to complete the North American leg of the Justice Tour".

"After resting and consulting with my doctors, family and team, I went to Europe in an effort to continue with the tour", he continued. "I performed six live shows, but it took a real toll on me. This past weekend, I performed at Rock In Rio and I gave everything I have to my the people in Brazil".

"After getting off the stage, the exhaustion overtook me, and I realised that I need to make my health the priority right now", he concluded. "So I'm going to take a break from touring for the time being. I'm going to be OK, but I need time to rest and get better".

It is not yet clear if and when the remaining shows on the tour will be rescheduled.

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EVENTS & EDUCATION

The UK's Music Managers Forum has announced that it will hold a Managers Summit at Koko in London on 27 Sep. It will include a keynote interview with Attention Management's Iain Watt and coincide with the release of new book 'The Essentials Of Music Management'. Tickets and info here.

Brian Eno will give a talk on his approach to sound at the Barbican on 23 Oct, as he unveils 'Andevernomore: 1st Garden', a sound installation in the Barbican Conservatory featuring music from his upcoming new album 'Foreverandevernomore', which is out on 14 Oct. Tickets go on general sale on Friday.

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APPOINTMENTS

Michelle Donelan has been appointed as the UK's new Culture Secretary, replacing Nadine Dorries who stepped down as Liz Truss took over as Prime Minister yesterday. Donelan previously worked in marketing and internal comms for World Wrestling Entertainment, so I guess that kind of counts as relevant experience. With the entire culture industry currently panicking that it's about to collapse entirely, her inbox will likely be bulging already.

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RELEASES

AC/DC frontman Brian Johnson will publish his autobiography, 'The Lives Of Brian', on 21 Oct. "I've had some long nights and some great nights, some bad days and a lot of good days, and during that time I've gone from choirboy to rock n roll singer, and now I've gone and written a bloody book about it", he says.

Pixies have released new single 'Dregs Of The Wine'. It's the band's first release to be co-written by guitarist Joey Santiago. Their new album, 'Doggerel', is out on 30 Sep.

The Waeve - aka Graham Coxon and Rose Elinor Dougall - have announced that they will release their eponymous debut album on 23 Feb. Here's new single 'Can I Call You?'

Biig Piig has released new single 'Kerosene'. "It's about wanting someone to rip my clothes off, and the tension of that relationship", she says. "My own hot girl summer anthem".

The Big Moon have released new single 'Trouble'. Says the band's Juliette Jackson: "'Trouble' is about remembering walking over the railway bridge to the hospital to give birth. Somehow in my memory it's like a bridge over a canyon in a technicolour 'Wizard Of Oz' jungle landscape. But it's just a pissy graffiti-covered South London pedestrian bridge. It's about learning that memories aren't always right, and you don't have to hang on to them and be traumatised by them forever".

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GIGS & TOURS

Blackpink have announced two shows at the O2 in London on 30 Nov and 1 Dec. Tickets go on general sale on 16 Sep. Their new album, 'Born Pink', is out the same day.

Pendulum have announced that they will play Brixton Academy in London on 5 Mar. Tickets are on sale now.

Mogwai have announced that they will be touring the UK in December and February. Tickets go on general sale on Friday.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Mark Morrison abandons bid to become mayor of Leicester
Singer Mark Morrison has said that he is abandoning plans to run as the next mayor of Leicester adding that "it feels my home town doesn't want my help". Current mayor Peter Soulsby expressed surprise at the decision, though mainly because he didn't realise that Morrison was running against him.

Morrison - who is best known for his 1996 single 'Return Of The Mack' - first expressed an interest in standing in the 2023 mayoral election back in 2020, following a dispute with Soulsby over the building of a recording studio.

The musician had opened up a temporary recording space in his home, offering free sessions to 100 young musicians, and saying that he hoped that the initiative would reduce knife crime and gang violence in Leicester. He then asked the local council to fund the building of a permanent studio in order to expand the project.

A Zoom meeting was organised to discuss the matter, but both Morrison and Soulsby later claimed that the other had failed to join the call. After this, the musician said that Soulsby - who has been mayor of the city since 2011 - "needs to come out of office" and that he could be the man to unseat him.

But, two years later, Morrison has said that he will no longer wants to be mayor of, or even live in Leicester, with plans to relocate to the US.

He tells the BBC: "I can no longer shrink myself to fit a place I've outgrown. My incentive that brought me home was the rising knife crime and gang violence in my home town, but it feels my home town doesn't want my help. So maybe it's best I stay away, but I will always support and pray for the youth of the city, and, unlike Peter, with my wallet not my mouth".

Soulsby responded: "I didn't actually know he still wanted to be mayor. I thought he'd given up on it some time ago. It never felt he was serious about it. He was serious about trying to get the council to pay to build him a new recording studio but I wasn't prepared to do that as he never demonstrated it would help tackle knife crime in any way".

While Morrison may have bowed out, Soulsby has been re-selected as Labour's candidate in next May's election. It remains to be seen if any other Leicester-based musicians will stand against him.

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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.
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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.
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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.
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