|MONDAY 10 OCTOBER 2022||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: R Kelly has been accused of fraudulently selling his music rights to a childhood friend in order to avoid that intellectual property from being used to cover the damages he was ordered to pay as a result of civil litigation over allegations of sexual abuse... [READ MORE]|
R Kelly accused of fraudulently selling his music rights after losing sex abuse litigation
The musician was sued by Heather Williams in February 2019, a month after the screening of the 'Surviving R Kelly' programme that prompted various new criminal investigations into the many allegations of sexual abuse that had been made against the star over the years.
Those criminal investigations, of course, have resulted in two high profile trials to date, in both Chicago and New York. In the former he was found guilty of enticing minors to engage in criminal sexual activity and of filming that abuse. In the latter he was found guilty of running a criminal enterprise in order to access and abuse teenagers and women.
Williams alleged that she first met Kelly in 1998 when she was sixteen and initially agreed to spend time with him at his studio because he promised to put her in a music video. However the video never happened and instead they began a sexual relationship which Williams subsequently recognised as sexual abuse, hence the legal action in 2019.
The musician failed to properly defend himself in the case, resulting in Williams winning by default in February 2020. And the following month the court awarded her $4 million in damages.
According to a new legal filing with the courts in Illinois, when Williams first sued Kelly in 2019 - and when she was awarded the damages in 2020 - the musician still had an interest in his songs catalogue. However, in August 2021, as the New York criminal trial got underway, Kelly allegedly sold his music rights to Keith Calbert, a childhood friend, for $5 million.
That transaction, Williams' legal team claims, "constituted a fraudulent transfer under the Illinois Uniform Fraudulent Transfer Act", because Kelly knew that there was "a great likelihood of court ordered garnishment or civil recovery" in order to secure Williams her damages, and therefore the transfer of the IP rights was "made with the intent to hinder, delay or defraud a creditor".
With that in mind, Williams asks the court to "set aside the August 2021 [transfer] as fraudulent pursuant to the act to the extent necessary to satisfy credit's claim herein", and to then rule that plaintiff "be allowed to obtain the rights to the composition and lyric rights in order to satisfy judgement herein".
Part of Williams' claim is based on the argument that the $5 million price tag for Kelly's rights was too low, suggesting that the deal with Calbert was simply designed to put the music rights out of the reach of Williams and other people due monies from both civil lawsuits and criminal action against the musician.
Though, of course, given the complete collapse of Kelly's music career following the airing of 'Surviving R Kelly', it might be tricky to accurately value his catalogue.
It remains to be seen how the court now rules. Given that Williams is not the only person owed money by Kelly as a result of legal proceedings, plenty of other people will likely follow this case closely.
Music Creators North America welcomes increased transparency on streaming rate deal
The deal done between the NMPA and the streaming services over what song royalty rates should be paid in the US was widely welcomed by the music community when it was announced back in August.
Those rates are ultimately set by the Copyright Royalty Board within the US because of a compulsory licence that exists in American copyright law. By reaching a deal on what the rates should be from 2023 to 2028, the publishers and streaming firms avoided having to battle it out before the CRB judges in what would have been costly and time consuming legal proceedings.
That deal still needs to be signed off by the CRB though, and as part of that process any affected stakeholders have the opportunity to comment on what has been agreed. However, as that process got underway, some songwriter groups - while glad a deal had been done - started to criticise the lack of transparency regarding the specifics of the full agreement that has been reached.
To that end, songwriter George Johnson filed a formal motion seeking to compel full disclosure of the deal, a move backed by MCNA. Despite initially opposing Johnson's motion, the publishers and services have now approved the public release of their deal. A move that was welcomed by MCNA on Friday afternoon.
It said in a statement that it is "gratified that as a result of both the motions made before the US CRB by songwriter George Johnson and the letter of support and legal principles filed by MCNA, the trade associations for the music publishing and digital music ... companies capitulated last evening to demands for transparency regarding the public release in full of their joint, proposed agreement for streaming royalty rates over the next five years".
That said, critics still want to know about any side deals between the services and the publishers that were negotiated alongside the main deal that has been filed with the CRB.
As a result, MCNA said that it would "continue to push, as will Mr Johnson, for the full release of all related 'side' agreements that may have been executed contemporaneously or in conjunction with their proposal, and looks forward to finally getting the opportunity to reviewing and commenting on the crucial, proposed royalty deal in its entirety in the coming weeks".
Coachella sues Afrochella for trademark infringement
This time it's an event outside the US - the Ghana-based Afrochella - that is being sued, although it was the staging of Afrochella events within California that seemingly prompted legal action in the American courts.
Afrochella launched in 2017, with one of its founders, Edward Elohim, basically admitting on Twitter at the time that the name was selected because he saw his event as an African version of the Coachella festival.
Goldenvoice has been pretty litigious in recent years when it comes to other American events that use 'Chella' in their brands, it owning US trademarks for both the Coachella and Chella names.
But could Afrochella have avoided such litigation had it only used its own version of the Chella brand on an entirely different continent to the original Coachella festival?
Possibly. Though the new lawsuit filed in the US courts last week is accompanied by another being pursued by Goldenvoice in Ghana itself which isn't linked to the Californian Afrochella shows. However, that particular legal action was probably mainly prompted by the organisers of Afrochella not only seeking to register their own brand with the trademark registry in Ghana, but the Coachella and Chella brands too.
"Not simply content to imitate and attempt to trade on the goodwill of Chella and Coachella", Goldenvoice's US lawsuit states, "defendants even went so far as to apply in Ghana to register Coachella and Chella as their own trademarks, using the exact same stylisation as plaintiffs' registered Coachella mark".
Meanwhile, the lawsuit goes on, "this year defendants expanded their infringing conduct into the US by promoting, presenting, and/or sponsoring at least seven different music events using the mark 'Afrochella' in the Los Angeles area, and have refused to curtail their infringing use of plaintiff's registered marks, necessitating the filing of this federal lawsuit".
"Plaintiffs have no objection to defendants holding musical events or festivals of their own - whether in the US, Ghana or elsewhere", the lawsuit adds, "but defendants must adopt and use an event name and mark that avoid a likelihood of consumer confusion and false association with plaintiff's Coachella and Chella festivals and with the Coachella marks".
The lawsuit accuses Afrochella's owners of trademark infringement, false designation of origin, cybersquatting and unfair competition.
US appeal court upholds Wolfgang's Vault copyright ruling, including the disappointing damages
Launched in 2003, Wolfgang's Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its content sources. As that happened, and the channels through which the firm disseminated and monetised the live recordings expanded too, the company became somewhat controversial in music industry circles.
Various legal challenges were subsequently made by the music industry, with this particular legal battle organised by the US National Music Publishers Association in 2015 on behalf of various publishers which argued that their songs had been exploited by the concert streaming service without licence.
In 2018 a judge ruled that the publishers' copyrights had indeed been infringed by Wolfgang's Vault. What damages it should pay as a result was then considered by a jury in 2020, just at the COVID-19 pandemic was getting underway.
With US copyright cases, statutory damages can be as high as $150,000 per infringement which - given that the publishers had identified 197 infringed songs in their lawsuit - meant the damages bill stemming from this case could have been pretty damn high. However, the jurors opted for something much more modest, setting the total damages at just $189,500.
Disappointed with the unusually low damages, the publishers raised concerns that the jurors hadn't properly considered the case, rushing to make a final decision in order to end the court proceedings because of rising concerns about COVID. They noted that one juror had specifically raised such concerns and that once deliberations began the jury took only one hour to reach a decision.
However, in November 2020, the judge overseeing the case said that - despite the COVID concerns, the speedy jury decision and the unusually low payout - he wasn't convinced that there had been any "miscarriage of justice" in the damages decision. Though he did order Wolfgang's Vault to pay the publishers' legal bills, or at least $2 million of the £6 million in legal costs that the music firms said they'd incurred.
Following that decision, the dispute moved onto the Second Circuit. And, according to Billboard, last week it likewise concluded that - while Wolfgang's Vault is liable for copyright infringement - there are no grounds to reverse the jury's decision on damages.
"The publishers failed to persuasively draw any connection between the potential impact of the COVID pandemic and the specific damages awarded", the appeals court concluded, "or explain why it would have been easier for a rushed jury to award damages on the lower side of the scale, as opposed to in the middle or on the higher end".
Which is no fun at all for the publishers. And even less fun than that, the appeals court also overturned the decision regarding the concert streaming service making a contribution towards covering their legal fees. The music firms are yet to respond to any of that.
There was another interesting legal battle involving Wolfgang's Vault alongside the NMPA-led litigation.
That was being pursued by musician Greg Kihn and focused on whether the performer rights of both him, and other musicians whose performances are available on the streaming service, had been infringed.
That was based on the allegation that those musicians had never granted permission for their live performances to be recorded and subsequently exploited.
Kihn's lawsuit - for which he was seeking class action status - would have been an interesting test of performer rights under US copyright law. However, a deal was seemingly done and the litigation was dismissed earlier this year.
CAA and Brookfield buy into Primary Wave
"Brookfield is among the most intelligent and well financed deal-makers in the world", says Primary Wave CEO Larry Mestel. "What separates them from every other financially oriented investor of their size is their creativity, long-term horizon and ability to help scale unique businesses with operational expertise in addition to capital".
"The addition of the CAA team to the Primary Wave family", he adds, "provides the artistic, creative, relationship and content-creation clout unheard of in the music publishing space".
Primary Wave has been busy buying up music rights recently, of course, with over $300 million worth of deals done so far this year, and a further $600 million expected to be completed by the end of the year.
"We are THRILLED to deliver a comprehensive capital solution to Larry and the team at Primary Wave to support their continued acquisition of the world's most iconic music IP", says Managing Partner at Brookfield, Angelo Rufino. "Strong secular growth trends, scarcity value of assets and the continued penetration of music in new forms of content delivery underpin this significant commitment to the asset class".
Last week Primary Wave announced that it had done a deal with the estate of Joey Ramone to acquire a stake in its share of The Ramones' songs catalogue.
Warner Music Poland partners with Grupa Step
"Grupa Step is a team of committed and passionate people", says Warner Music Poland MD Adrian Ciepichał. "For more than fifteen years, they've been a key player on the Polish hip hop scene. I'm sure that together we can create the perfect environment to support young and gifted rappers in Poland. This collaboration sends a clear message that we're ready to undertake many new exciting projects in this space".
Co-founder of Grupa Step, Paweł Krok, adds: "We've always seen the need for constant development at Grupa Step. Teaming up with Warner Music is the next step in our development. As we share WM Poland's business approach, we see this collaboration as an opportunity to harness synergies and our contribution to the growth of hip hop in Poland and Europe".
As well as releasing more than 150 albums over its fifteen years in business, Step Records also runs a successful YouTube channel which, it says, has "featured almost all the top talent from the Polish music scene".
Liverpool chosen as host city for Eurovision 2023
The UK was selected as the 2023 host country earlier this year, after the ongoing war in Ukraine made it impossible to host the contest there, despite the Ukrainian entry winning the 2022 Contest. The UK was in second place back in May, of course.
A total of 20 UK cities expressed an interest in putting on the show, with seven being shortlisted. Last month it was announced that it was down to a choice between Liverpool and Glasgow.
Liverpool has a lot going for it, of course. For one thing, it's twinned with the Ukrainian city of Odesa. And it has a strong musical heritage. That's certainly something everyone involved keeps saying. Even if, what that really means is, well, expect to be reminded regularly that the Beatles came from the city.
"Congratulations to Liverpool", says BBC Director General Tim Davie. "They will be an amazing host for the 2023 Eurovision Song Contest. Liverpool is such an exciting, warm and vibrant city. It's the undisputed capital of pop music and is celebrating the 65th anniversary of its twinning with the Ukrainian city of Odesa. I know the people of Liverpool will welcome Europe - and the rest of the world - with open arms, and in partnership we will create something truly special".
Eurovision Song Contest Executive Supervisor Martin Österdahl adds: "Liverpool is the ideal place to host the 67th Eurovision Song Contest on behalf of Ukraine. The city is synonymous with music and Liverpool Arena exceeds all the requirements needed to stage a global event of this scale. We have been very impressed with the passion the city has shown in embracing the Contest and their inclusive ideas for placing last year's winners, Ukraine, front and centre when thousands of fans visit next May".
The whole thing will take place at the Liverpool Arena, as Österdahl noted there, with the grand final set for 13 May.
Beyonce denies interpolating Right Said Fred track without permission
'Alien Superstar' is the latest addition to a slightly weird trend of superstar artists using the 1991 Right Said Fred hit. Beyonce's use follows Taylor Swift borrowing it for her 2017 single 'Look What You Made Me Do' and Drake using it in 2021's 'Way 2 Sexy'. Sugababes also reworked it for their 2009 single 'Get Sexy'.
The Sun last week quoted Right Said Fred - aka Richard and Fred Fairbrass - as saying: "Normally the artist approaches us but Beyonce didn't because she is such an arrogant person she just ... probably thought 'come and get me', so we heard about it after the fact, when you did. But everyone else, Drake and Taylor Swift, they came to us".
"To use our melody they need our permission, so they send us the demo and we approve it, and if so we get a co-write credit", they went on. "With this Beyonce thing, there are 22 writers, it's ridiculous, so we would get about 40p. The reason that is happening we think is because there is so little money now in the actual sales people like friends, golfing partners, engineers, bookers and the guy who brings the coke, they all want a cut".
In cases of apparent copyright infringement such as this, the law says that the infringed artist should sue the infringer. However, Right Said Fred said that they feel powerless in the face of the Beyonce machine: "We cant stop it. There is nothing we can do. It is shit".
"You are going to get into a conversation with someone who has a lot more presence and power and money than we do", they added. "And that won't go well. It's best to let it go. If you're not careful you spend your life looking back. We keep looking forward the whole time".
If legal action isn't possible, then the court of public opinion is the next step - ie using social or traditional media to bring awareness to the fact that you feel ripped off. But that cuts both ways. Avid Sun reader Beyonce responded quickly to Right Said Fred's claims with her own statement, saying that the duo were talking utter nonsense.
"The comments made by Right Said Fred stating that Beyonce used 'I'm Too Sexy' in 'Alien Superstar' without permission are erroneous and incredibly disparaging", read the statement. "Permission was not only granted for its use, but they publicly spoke of their gratitude for being on the album".
"For their song, there was no sound recording use, only the composition was utilised", it went on. "Permission was asked of their publisher on 11 May 2022 and the publisher approved the use on 15 Jun 2022. They were paid for the usage in August 2022".
"Furthermore", the statement adds, "the copyright percentage of the Right Said Fred writers with respect to the use of 'I'm Too Sexy' is a substantial portion of the composition. Collectively the Right Said Fred writers own more than any other singular writer and have co-writer credit. This accusation is false".
So, there you go. Of course, it's possible that this licensing deal was done without Right Said Fred's active involvement - depending on the terms of their publishing contract - and also that all the lovely money they are due from the 'Alien Superstar' interpolation hasn't made its way through the system into their bank accounts yet. But Beyonce does seem pretty clear on the fact that a deal was definitely done.
She's also correct to say that Right Said Fred previously seemed quite happy to have their song used on her new record. They tweeted upon the release of 'Renaissance' that it was "nice to get a writing credit on the new Beyonce album", adding on Instagram: "Writing credits with Taylor Swift, Drake and now Beyonce - not bad for two blokes that haven't been playlisted in the UK for over 25 years".
This isn't the first run-in Beyonce has had over an interpolation on her latest album, of course. In July, Kelis accused Beyonce of "theft" over the use of her song 'Milkshake' on the track 'Energy'. This, it turned out, came down to the fact that only The Neptunes - Pharrell Williams and Chad Hugo - are credited as writers on the Kelis hit.
That said, despite that usage also seemingly being properly cleared ahead of the release of 'Renaissance', a new version of 'Energy' was subsequently replaced the original on digital music services with the 'Milkshake' interpolation removed.
If you're sitting there wondering why so many songs these days are recycling old hits in this way, this episode of the Switched On Pop podcast will help you understand.