TODAY'S TOP STORY: Warner Music has followed the lead of both Universal Music and Sony Music in suing energy drink Bang over its use of unlicensed music in the promotional videos it posted to social media platforms like TikTok and Instagram. The third major joining this particular litigation party could add millions to the damages the drinks brand has to pay... [READ MORE]

TOP STORIES Now Warner Music sues Bang over the unlicensed music in its TikTok videos
LEGAL Arbitration provision in Ticketmaster's terms back in the spotlight in Ninth Circuit appeals court
50 Cent sues plastic surgeon, denies he had penis enlargement

DEALS Concord confirms HitCo catalogue acquisition
LABELS & PUBLISHERS Warner Music talking to departing YouTube Chief Business Officer about its CEO role
ARTIST NEWS New proposal to allow BTS members to serve South Korea without joining military
GIGS & FESTIVALS Vancouver's Breakout Festival ends in riot after Lil Baby's last minute cancellation
AND FINALLY... Cheshire councillor raises concerns about Harry Styles fans wandering around star's home town
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Now Warner Music sues Bang over the unlicensed music in its TikTok videos
Warner Music has followed the lead of both Universal Music and Sony Music in suing energy drink Bang over its use of unlicensed music in the promotional videos it posted to social media platforms like TikTok and Instagram. The third major joining this particular litigation party could add millions to the damages the drinks brand has to pay.

Although platforms like TikTok and Instagram have their own licences from the music industry, those only cover user-generated content, not content created and uploaded by brands. Therefore Bang should have been securing sync licences directly from record companies and music publishers whenever it put commercially released music into its social media posts. Its failure to do so means those promotional videos were infringing the copyrights of the music companies.

Both Universal and Sony have now won summary judgements in their favour regarding the unlicensed music in Bang's videos and its liability for copyright infringement, which means Warner will be pretty confident that it will likewise prevail. In its lawsuit last week it said that Bang had uploaded videos to TikTok using nearly 200 unlicensed tracks that it controls, including music by Cardi B, Lizzo, Dua Lipa, Jack Harlow, Van Halen and Bruno Mars.

Although both Universal and Sony got summary judgements in their favour regarding Bang's own TikTok videos, there remain some questions over the influencer content that the drinks company commissioned which likewise featured unlicensed music.

The majors want Bang held liable for so called contributory infringement and vicarious infringement in relation to the influencer videos. But Universal failed to get a summary judgement in its favour regarding that content, while a judge said Sony had proven vicarious but not contributory infringement.

In terms of any damages each of the majors can expect, that will depend on whether they can prove Bang's copyright infringement was wilful. If they can, the damages will likely be much higher.

Bang's lawyers have previously argued that the drinks firm's marketing team were under the impression that they were covered by TikTok's music licences. And while that claim did not prove useful when it came to Bang's bid to avoid liability for the infringement, it will likely be used again to argue that the infringement was not wilful.

But, according to Billboard, Warner's lawsuit pre-empts that line of argument. "Defendants' infringement was clearly wilful", it states.

"Among other things", it adds, "the social media platforms on which the infringing Bang videos were posted expressly state that users have no right to infringe music, particularly in connection with commercial activities. [And] even after receiving WMG's cease-and-desist letter, Bang posted multiple new Bang videos featuring the same copyrighted musical works previously identified".


Arbitration provision in Ticketmaster's terms back in the spotlight in Ninth Circuit appeals court
Lawyers representing a proposed class of pissed off Ticketmaster customers were back in court yesterday trying to argue why said customers shouldn't be obliged to take their grievances with the Live Nation-owned ticketing giant to arbitration rather than filing litigation in court.

A number of legal disputes involving Ticketmaster have ended up going to arbitration in recent years, meaning those disputes are argued out in private before an independent arbitrator selected by the ticketing firm, rather than going before a judge in a court of law.

Ticketmaster has been able to successfully force the disputes to arbitration on the basis that its customers agreed to that approach when they accepted the terms and conditions on its websites and apps. Attempts to circumvent that obligation by claiming that those terms and conditions were verbose, unclear and/or hidden have not succeeded.

According to Law360, lawyers from Quinn Emanuel Urquhart & Sullivan LLP presented some other arguments for why the arbitration term should not be binding in court yesterday. They are working on a class action lawsuit that accuses Live Nation and Ticketmaster of anti-competitive conduct, because the live giant is so dominant in concert promotion and primary ticketing, and also active in secondary ticketing in the US.

In September 2021, the judge overseeing that action, George H Wu, said that the dispute should go to arbitration because of Ticketmaster's terms of use, to which all the members of the proposed class had signed up. The lawyers from Quinn Emanuel Urquhart & Sullivan LLP are now asking the Ninth Circuit appeals court to overturn that decision.

Among the arguments presented were that Ticketmaster had not established that class members "had actual or constructive notice of the arbitration provision in the terms", that a restriction to the arbitration provision should apply, and that the ticketing firm itself was not sufficiently clearly identified in the terms for the arbitration provision to be binding.

On the latter point, the lawyers argued that it was ambiguous in Ticketmaster's terms as to which entities the arbitration provision related to, and that that ambiguity would have been easy to fix. Given the defendant is the big corporation in this case, they added, the court shouldn't be "bending over backwards" to "fix the terms which do not specifically identify the parties".

Responding to that particular argument, a legal rep for Ticketmaster said that, when it comes to the terms and conditions on its client's websites, "there's nobody else [a customer] could be contracting with" other than Ticketmaster LLC.

The various arguments on the ticket-buyers' side do seem somewhat optimistic, but given that a number of Ticketmaster disputes have been forced to arbitration by the ticketing giant, it will be interesting to see if the Ninth Circuit agrees that there are issues with the arbitration provision that made that happen.


50 Cent sues plastic surgeon, denies he had penis enlargement
50 Cent has sued a plastic surgeon, claiming the she has used photos he unwittingly took with her to imply that her practice performed penis enlargement surgery on the rapper.

In his lawsuit, 50 Cent - real name Curtis Jackson - says that he had his photo taken with Angela Kogan in February 2020, believing her to be a fan. However, since then, the picture has been used on Perfection Plastic Surgery Inc's social media, suggesting that he endorses and has used the services of the company, which also trades as MedSpa.

The specific suggestion that Jackson might have used MedSpa's services for surgery on his penis seemingly stems from an article on gossip site The Shade Room in which Kogan discussed the rise in plastic surgery for men, including penile enhancements. Suggesting that that interview was basically advertorial, Jackson's complaint says that the image of him and Kogan together was also used in that article, along with another image that suggested that he had used MedSpa's services.

"Jackson never had such a sexual enhancement procedure, he has never received plastic surgery from defendants, and he never consented to the commercialisation and publication of the photo", says the lawsuit, according to Law360. "Defendants' actions have exposed Jackson to ridicule, caused substantial damage to his professional and personal reputation, and violated his right to control his name and image (which has significant economic value)".

"Defendants' posts imply without any subtlety that Jackson endorsed MedSpa's business and services", it continues. "The original posts serve as attention-seeking MedSpa advertisements and capitalise on Jackson's fame to do so".

Regarding the Shade Room article and the implications it made regarding what kind of surgery Jackson may have add, the filing goes on: "The implication was clear. In the article, the photo is juxtaposed with an image of a faceless male obtaining a penile enhancement procedure, with a euphemistic eggplant emoji covering his exposed groin area. Neither defendants nor [The Shade Room] sought Jackson's permission to use the photo, let alone in this particular manner".

Jackson accuses Kogan and her company of unjust enrichment, conversion and invasion of privacy, Lanham Act violations and misappropriating his image in violation of his right to publicity. He is seeking an injunction to stop Kogan and Perfection Plastic Surgery claiming that he was ever their client, and from using the image of him and Kogan together to promote themselves. He'd also like some lovely damages too, thank you very much.

Kogan and Perfection Plastic Surgery are yet to respond.


Concord confirms HitCo catalogue acquisition
Concord has confirmed that it has acquired much of the catalogue of HitCo Entertainment, the most recent music business run by record industry veteran LA Reid.

Reid launched HitCo following his somewhat sudden departure from Sony Music in 2017, it using the same name as a music publishing company he'd set up in the 1990s.

A joint venture with another former major label exec, Charles Goldstuck, the new HitCo signed the likes of Saint Jhn, Dixie D'Amelio and Rubi Rose, as well as collaborating with various artists Reid had worked with in his previous roles, including OutKast's Big Boi, Fifth Harmony's Dinah Jane and Jennifer Lopez.

Reports of a deal between HitCo and Concord first circulated last month. In a statement last week, Concord confirmed that that deal had now been finalised and that it had acquired "certain assets" from HitCo, including most of its recordings catalogue.

The statement read: "Concord has acquired certain assets of HitCo Entertainment, including (with limited exclusions) its entire sound recording catalogue and certain recent releases from the leading hip-hop and contemporary-focused record label".

"The catalogue", it went on, "includes releases from an impressive collection of artists, including Saint Jhn, Big Boi, Dinah Jane from Fifth Harmony, Jennifer Lopez, Yella Beezy, TikTok phenom Dixie D'Amelio and Rubi Rose".

Concord has not acquired the HitCo brand, and Reid and Goldstuck will not be joining the company as part of the deal. However, it's thought that some HitCo employees will be working with Concord, in the short term at least, as it takes over the management of its newly acquired catalogue.


Warner Music talking to departing YouTube Chief Business Officer about its CEO role
Warner Music is talking to departing YouTube Chief Business Officer Robert Kyncl about him becoming CEO of the major, taking over from current chief Stephen Cooper, who has headed up the music company since 2011 but announced he was standing down back in June.

It emerged last month that Kyncl was departing his YouTube role after twelve years with the Google company. Some immediately speculated that he might move over to the Warner Music top job, although others questioned whether that would be of interest to Kyncl, with some suggesting that he would likely be more interested in something entrepreneurial.

However, according to Bloomberg, reps for the Warner Music board have indeed been speaking to Kyncl about him taking over from Cooper. That said, he's not the only person being considered, Bloomberg adds, with its sources also saying that Sirius XM exec Scott Greenstein and Universal Music Publishing chief Jody Gerson are among those being considered.

If Warner were to go for an internal candidate, Max Lousada, who heads up the major's recordings business, seems the most likely contender. And, indeed, some reckon that Lousada is a sufficiently strong contender that it's unlikely the board would opt for another senior exec from within the music industry. But they might go for another senior exec from outside the music industry.

Because, after all, Cooper was not a music industry man when he was appointed CEO by Len Blavatnik, the Access Industries chief who had just bought the major when Cooper took on that role in 2011.

And, sources say, Blavatnik - still the biggest shareholder - is interested in hiring another person from outside the music business, and especially someone with a tech background. But, obviously, a tech person who also understands the music and wider entertainment industries would be particularly good, hence Kyncl, who worked at Netflix before his long stint at YouTube.

It remains to be seen if Blavatnik and Warner Music Chair Michael Lynton can convince the outgoing YouTube exec that the CEO role they are trying to fill is a sufficient step up in his career.


Setlist: Lizzo’s keeping her $5 million cancelled festival fee
CMU's Andy Malt and Chris Cooke review key events in music and the music business from the last week, including the ruling that Lizzo can keep the $5 million fee she was paid to play the 2020 LA Virgin Fest that never happened because of COVID, and YouTube's announcement that it handed more than $6 billion over to the music industry in the twelve months to June this year.

Listen to this episode of Setlist here.

New proposal to allow BTS members to serve South Korea without joining military
With time rapidly running out to make a decision on the question of whether or not the members of BTS should do their military service, a member of the main opposition party in South Korea has proposed a bill that would allow them to serve the country in alternative ways.

If passed, the proposed bill, put forward by politician Kim Young-bae, would allow the pop stars to carry out activities in the national interest other than actually serving in the military. This would seemingly include the work they are already undertaking as ambassadors for South Korea's bid to host the 2030 World Expo.

Under South Korean law, all able-bodied men must begin serving around two years in the military at some point between the ages of eighteen and 28. There are formal exemptions for athletes and classical musicians with an international following, but nothing for pop acts.

So far, no member of BTS has entered military service, despite the oldest member, Jin, turning 28 two years ago. This is thanks to a change in the law that allowed some pop artists (mainly - some argue only - the members of BTS) to defer the start of their military service until the age of 30. But Jin is now 30, and that means he must enlist by December under current rules.

Military service is a big issue in South Korea and public opinion over the possibility of BTS not doing it has not always been on their side. The country's parliament is also divided, which is why it has taken years to reach a definitive decision on the matter.

It is unprecedented for pop stars to be exempted. And, indeed, many previous K-pop groups have basically been forced to wind down as their members enter the military. However, the country has never before had a pop group who have driven as much international attention as BTS, nor who have been so important to the country's economy.

With that in mind, there have been previous suggestions by politicians in the country that a different approach could be taken with BTS, either by allowing them to continue to perform while undertaking their stint in the army or - as Kim is now formally proposing - by having band members serve their country in other ways.

Announcing his proposed bill, Kim said: "Korean pop celebrities active in the international field make unimaginable economic and social contributions. I believe pop celebrities will make important contributions to the national interest, including promoting a bid to host the 2030 World Expo in Busan, through doing alternative military service".

Recently, the South Korean government said that it was considering carrying out a survey to gauge public opinion on the matter. An independent poll conducted by Realmeter last week indicated that 61% of South Korea's population is in favour of the idea of BTS service alternative military service, such as that proposed by Kim. Although this is down from 65.5% in a similar survey conducted in April.

The members of the group are, of course, currently focussing on solo activities. And as much as they and their management company Hybe insist that they are still working together as a group as well, it is widely assumed that the current prioritising of solo projects is an effort to get ahead of individual members potentially having to disappear from public life for two years.


Vancouver's Breakout Festival ends in riot after Lil Baby's last minute cancellation
Vancouver's Breakout Festival ended in a riot on Sunday night, after Lil Baby cancelled his appearance at the very last minute due to illness. The rapper's headline performance was due to close the proceedings, meaning the event didn't get its grand finale. Plus, confirmation of his cancellation followed several other no shows over the two day festival.

Police were called in to end the violence as hundreds of angry audience members caused "hundreds of thousands of dollars" of damage to the site. Seven people were arrested, but there were no serious injuries reported.

The festival announced that Lil Baby would not be appearing at around 9.15pm, which was just 45 minutes before the event's 10pm curfew.

In a statement on Instagram on Monday, the rapper said: "I would like to start off by saying I truly apologise Vancouver, Canada, the Breakout Festival, and to everyone who was in attendance. I have been going so hard these past few months without any breaks that it finally caught up with me. And my body completely shut down. I owe you guys big time and will for sure make up for it soon".

As well as Lil Baby, Saturday's headliner Lil Uzi Vert, plus Polo G and Sofaygo, also pulled out of the festival, leaving many feeling angry. One attendee told CBC: "I paid for two days, $260, and probably four of the artists I bought the tickets to see cancelled, and I also got pepper-sprayed and bashed my knee out with a baton - so overall it was not a good night".

In a statement yesterday, the event's venue, the Pacific National Exhibition, said: "Approximately one thousand of the guests turned their disappointment into a violent outburst that resulted in hundreds of thousands of dollars in damage to PNE property inside the amphitheatre and in Hastings Park. It is our understanding that there was additional damage to property outside of Hastings Park, in the community and to local businesses. For this, we are incredibly sorry to our neighbours".

One of Breakout's promoters - Canadian music company Crescendo1 - said that it would be offering partial refunds to attendees as a result of the various cancellations.

"Last night's end to the 2022 Breakout Festival resulted in the worst case scenario of disappointment due to Sunday's final performer cancelling and we want to apologise to everyone who peacefully left the venue, as well as the venue staff and the Hastings-Sunrise neighbourhood for the way Breakout 2022 ended", the company said in a statement on Instagram.

"We do not condone violence or destruction of property and are utterly disappointed with the way some of our patrons acted at this year's event", it went on. "[The] safety of our guests and venue staff is our number one concern. We did everything to make Breakout a unique and enjoyable experience for Vancouver's rap fans".

"We want our audience to know we did everything in our power to make every festival a success and we want to thank every loyal fan and all of the staff who attended the events over the years", it concluded. "Stay tuned for information and details regarding partial refunds for two day and Sunday Breakout 2022 ticketholders".

So, seemingly people who only attended on Saturday will not be compensated for their headliner also pulling out.

This is not the first time Breakout has has struggled with getting headliners to honour their bookings. At the 2018 event, it was announced that Migos would not be playing the Sunday night just 20 minutes before they were due on stage. At the time, the festival said in a statement that "for reasons beyond our control Migos didn't make it to Vancouver".


Cheshire councillor raises concerns about Harry Styles fans wandering around star's home town
A local councillor who represents the Cheshire village of Holmes Chapel has raised concerns about Harry Styles fans trudging along the narrow footpaths of the busy A535 in order to see the viaduct where the pop star once scrawled his name and the alleged site of his first ever kiss.

According to Cheshire Live, the sudden insertion of some Harry Styles trivia into an otherwise routine meeting of the Cheshire East Economy And Growth Committee took the other councillors in attendance somewhat by surprise.

But, councillor Andrew Kolker explained, while residents living in the place where Styles grew up are happy to welcome the pop star's fans into their village - you know, providing they spend some money in the local shops - there are concerns about the safety of said fans as they check out all of the many (five, I think) Styles-related sights and sounds that the village has to offer.

"In Holmes Chapel we have a lot of teenagers, both girls and boys, coming to see the sights and sounds of Harry Styles, which is absolutely no problem. It's lovely to see them in Holmes Chapel", he told the committee.

However, he went on, one particular sight that is seemingly a must-see for anyone undertaking the Harry Styles Holmes Chapel pilgrimage is the Twemlow Viaduct just outside the village because, you see, it "has Harry's name scrawled all over it, apparently from when he was a young youth, and that site's a popular site for teenagers, as is the site of Harry's first kiss".

"This is fine", Kolker mused on, except that you get to the viaduct by walking down the A535 which "is an extremely busy road and it's a very, very dangerous road to walk along". In fact, Kolker added, piling on the drama, "it's an extremely dangerous road with very, very limited parking and footpaths. I just wonder whether officers from this committee could have a look at this particular detail".

Committee Chair Nick Mannion was seemingly keen to reassure Kolker that Cheshire East Council has plenty of experience in dealing with problems of this kind.

I mean, who could forget that time officials had to deal with the lack of toilets at Plumley Station, which became a big old issue when Take That fans started catching trains there so to gawp at the Cheshire homes of the boyband's members. And did any Take That fans explode due to the lack of toilet provisions in Plumley? No, they did not.

That said, Mannion added, Harry Styles fans wandering down the A535 - dangerously or otherwise - are not technically the remit of the Cheshire East Economy And Growth Committee. However, he was certain the local police would intervene if there were safety issues.

"I'm sure if Mr Styles' popularity is generating such concerns they will take the appropriate action", he concluded, before adding that Kolker's pop trivia contributions to his committee's latest meeting meant he had "learned something new this afternoon". So, at least something was achieved.

Of course, as we all surely know, you can also get to the viaduct by going down the Hermitage Drive and then cutting across the fields by the River Dane, and that way you don't touch the A535. So maybe Kolker could just persuade the pop star to sing about that route in a song - and then maybe bring out a line of sturdy Harry Styles branded field-proof walking shoes - and all will be fixed.

Until giddy Styles fans start falling in the river, I guess.


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 COOKE | Co-Founder & MD
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