|TUESDAY 7 FEBRUARY 2023||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Warner Music's Atlantic Records has asked the New York courts to dismiss elements of a lawsuit filed against it in relation to allegations of sexual assault that have been made against the label's late co-founder Ahmet Ertegun. In particular, Atlantic argues that it can't be held vicariously liable for all of the legal claims made in relation to Ertergun's alleged conduct several decades ago... [READ MORE]|
Atlantic Records seeks dismissal of parts of a lawsuit accusing its late founder of sexual assault
The major is responding to a lawsuit filed by Jan Roeg, who alleges that Ertegun sexually abused and assaulted her multiple times, over many years from the early 1980s onwards, while she was working with his label - both as a talent scout and a manager with artists signed to the Warner-owned record company.
Roeg is suing now because of New York State's new Adult Survivors Act, which allows victims of past sexual abuse to file new legal proceedings at any point over the next year, even if previously the so called statute of limitations had prevented them from taking action.
That change in New York law has also led to a second lawsuit being filed in relation to allegations against Ertegun by former Atlantic employee Dorothy Carvello.
Both Roeg and Carvello have sued Atlantic as well as trustees linked to the Ertegun estate. The former wrote in her lawsuit that: "Atlantic's management knew about Mr Ertegun's conduct, and his obsessive sexual pursuit of Ms Roeg, which was characterised by volcanic eruptions of anger in the office [and] was obvious to all at the label".
"Atlantic's top executives and other management had ample opportunities to observe Mr Ertegun's drunken, abusive conduct and hateful attitude towards women", it continued, "including in company meetings in which he would openly brag about and recount in detail sexually exploitative escapades he engaged in backstage at concerts and the like".
In then stated: "Atlantic, however, did not act to protect Ms Roeg or its other female employees, business partners, and other women who crossed paths with Mr Ertegun in the course of doing business with the label, whether by reining in and disciplining Mr Ertegun himself, or putting in place training or other measures to prevent or impose consequences for misconduct such as sexual assaults and harassment".
Atlantic doesn't really respond to that statement in its new legal filing, but does say that it can't be held liable for all of the legal claims made in Roeg's lawsuit, mainly citing legal technicalities. She is seeking to hold the record company liable for intentional infliction of emotional distress, negligent infliction of emotional distress and straight negligence.
But, Atlantic argues in the new legal filing, the claim of intentional infliction of emotional distress must be dismissed because the company "cannot be held vicariously liable for Ertegun's alleged sexual assault. This type of conduct plainly falls outside the scope of any employee's employment and is engaged in for purely personal motives, precluding vicarious liability as a matter of law".
Atlantic also argues that the intentional infliction claim is "duplicative of the negligence claim against Atlantic" and should be dismissed on those grounds as well. The same is true, it then adds, of the negligent infliction of emotional distress claim.
That would then leave the negligence claim. Atlantic is not seeking the dismissal of that. Yet. "Atlantic reserves the right to seek dismissal" in the future, it adds, "after Roeg provides more specificity about the nature of that vaguely pleaded claim".
The trustees with links to Ertergun's estate have also filed a response to Roeg's lawsuit. Among other things they dispute if the trusts and trustees can be targeted with litigation of this kind, even with the Adult Survivors Act in force.
"It is a fundamental proposition of New York law that an estate is not a legal entity that can be sued", the legal filing claims.
"It is equally fundamental that trusts are standalone legal entities with their own rights and obligations, so that the various trusts at issue here are not, as the complaint wrongly asserts, part of Mr Ertegun's estate; those trusts, while funded with assets Mr Ertegun owned at the time of his death, do not represent him or stand in his shoes".
It remains to be seen how both Roeg and the courts respond to the respective arguments of Atlantic and the trustees.
Beyond its formal legal responses to Roeg's litigation, Warner previously said, in relation to the claims made against the founder of a label brand that is still a key part of its operations today: "These allegations date back nearly 40 years, to before WMG was a standalone company. We are speaking with people who were there at the time, taking into consideration that many key individuals are deceased or into their 80s and 90s".
Seeking to distance itself from the Warner Music of the past - while also being careful to not make any actual admissions about that past - the major added: "To ensure a safe, equitable, and inclusive working environment, we have a comprehensive code of conduct, and mandatory workplace training, to which all of our employees must adhere. We regularly evaluate how we can evolve our policies to ensure our work environment is free from discrimination and harassment".
IPO publishes economics of streaming research on reversion and contract adjustment rights for music-makers
They were proposed by MPs as possible solutions to some of the problems raised during that inquiry, in particular around how artists and songwriters get paid when their music is streamed.
Another proposal was that the performer equitable remuneration system already in place on broadcast income be applied to streaming, so that artists get at least some of their digital income directly through the collective licensing system.
With a reversion right - sometimes called a termination right - an artist or songwriter that does a long-term record or publishing deal, where the label or publisher controls the rights in the music-maker's recordings or songs for a long time, would be able to basically cancel that deal and reclaim the rights after a set number of years.
Rights of this kind that already exist in some copyright systems often take the form of a use-it-or-lose-it clause. When that is the case, if a creator assigns rights to a business partner, but the partner fails to exploit the work, the creator can get the rights back.
However, in the US in particular there is a more impactful termination right that allows copyright assignments to be fully terminated, albeit only within the US, after 35 years. The IPO report discusses that US right in some detail.
A contract adjustment right is somewhat less dramatic, in that the artist or writer can't cancel their old deals, but can force the terms of those deals to be renegotiated in some way.
Rights of this kind already exist in some European countries and a contract adjustment mechanism was also included in the 2019 European Copyright Directive which is now in force, although not in the post-Brexit UK obviously.
Quite how this right works and who it benefits from it varies from country to country. It has traditionally been more to benefit creators who take a modest one-off upfront fee from a business partner for involvement in a recording or movie that then becomes a massive hit.
It allows them to negotiate additional payments in hindsight because of the often unexpected commercial success of the work they were involved in.
However, music-makers would also like it to benefit artists who are in theory cut into the success of a project - by receiving an ongoing royalty - but where that royalty seems unfair in hindsight. For example because some kind of innovation, like streaming, makes it much easier for a business partner to exploit the work.
Artist and songwriter groups generally support both reversion and contract adjustment rights. In the context of streaming, it would most help artists stuck in old pre-digital record deals which provide a much lower royalty rate than more modern deals. A reversion right would cancel that deal. An adjustment right would allow the artist to seek a better royalty rate.
The IPO report was commissioned to review how reversion rights and contract adjustment rights work in those countries where they already exist in copyright law; and also what impact such rights might have - on the UK copyright system and the British music industry - if introduced here.
It also reviews the opinions of each stakeholder group in the music community regarding the select committee's proposals that a reversion right and an adjustment right be added to UK copyright law.
The writers of the report were not asked to express their own opinions on the merits of the committee's proposals - instead their work is to inform the wider debate.
Unsurprisingly, while artists and songwriters support both proposed copyright reforms, record labels and music publishers are generally opposed to both of them, variously arguing that they aren't needed and/or that they would negatively impact on the ability of music companies to invest in artists and writers.
Labels and publishers often argue that record and publishing deals are more favourable to artists and writers today than in the past, which is definitely true. Though that doesn't help music-makers stuck in old deals. However, the labels and publishers also insist, they routinely voluntarily renegotiate those old deals.
That is also true to an extent, though the music-maker community argues that the effectiveness of that approach depends on each artist and writer's negotiating power. And while superstar artists can always renegotiate old deals, mid-tier heritage artists who would benefit most from receiving modern royalty rates on their streaming income often aren't in a position to fight for better terms.
Some labels have, of course, voluntarily applied better terms - and especially better royalty rates - across their entire catalogue, and where that's the case a contract adjustment right possibly isn't so important. The IPO report summarises some of those voluntary initiatives, although for now they are far from industry-wide, which makes getting new rights in law very attractive for artists and writers.
Of the three reforms, a reversion right - especially if applied retrospectively and potentially cancelling decades worth of deals - would be most fiercely opposed by labels and publishers. Performer ER on streams is not popular with labels either. Both labels and publishers could probably live with a contract adjustment right, although that would depend on the specifics of how it works.
However, the record industry and music publishing sector at large would almost certainly prefer some kind of voluntary industry solution instead of copyright reform - perhaps embracing some of the voluntary initiatives some labels have already instigated - if attempts to defend the status quo do ultimately fail.
Such a voluntary solution has not yet been formally part of the IPO-led discussions that have been taking place ever since the culture select committee published its streaming report.
When the committee held an update session on music streaming late last year, music-maker reps expressed frustration that, while there have been plenty of discussions on data and transparency issues, the conversation around remuneration and addressing bad artist royalty rates had not really begun. MPs on the committee then confirmed that they shared that frustration.
The delay on starting a remuneration conversation was partly because the IPO had commissioned its research on the three copyright reforms, meaning all discussion was basically on hold until that research had been published. With two thirds of said research now available - and the report on performer ER to follow - music-makers will no doubt again be calling for a formal remuneration conversation to begin.
You can access the new IPO report here.
MSG Entertainment partly lifts its venue ban on attorneys involved in suing the company
MSG has recently come under criticism for its attorney ban. The firm is using facial recognition technology to stop lawyers working on lawsuits against the company from entering the venues it operates in New York City.
New York's Attorney General Letitia James recently wrote to the entertainment group expressing concerns that that ban "may violate the New York civil rights law and other city, state, and federal laws prohibiting discrimination and retaliation for engaging in protected activity".
MSG pushed back at the AG's claims, telling reporters: "Our policy does not unlawfully prohibit anyone from entering our venues and it is not our intent to dissuade attorneys from representing plaintiffs in litigation against us".
However, MSG has now lifted the ban on attorneys who are specifically involved in litigation against the Tao Group, a hospitality company in which it is the majority shareholder. Though that's seemingly because it's looking into selling its interest in that business.
According to Law360, MSG confirmed its ban no longer impacts on lawyers working on cases targeting the Tao Group. "All attorneys employed at the firms involved may attend events at MSG Entertainment's venues, and those firms will all be notified", an MSG spokesperson confirmed. "The policy remains in place for all other firms pursing active litigation against the company".
GitHub reactivates Proxy Bay subdomain
The Proxy Hub helps people access The Pirate Bay in countries where everyone's favourite piracy site is formally blocked by internet service providers, usually because of web-blocking injunctions secured by the music or movie industries.
Copyright owners are aware, of course, of websites that seek to help people circumvent the web-blocks they secure, and so they often try to get those websites blocked too. However, a subdomain on development platform GitHub provides another way to access The Proxy Bay.
The UK music and movie industries have been particularly prolific in getting web-blocking orders against both piracy services, and the proxies and sites designed to circumvent the blockades.
With all that in mind, the City Of London Police - on behalf of UK record industry trade group BPI - sent a copyright notice to GitHub under the US Digital Millennium Copyright Act requesting that its Proxy Bay subdomain be deactivated.
In its notice, the London police's IP team said that the Pirate Bay proxy provider accessible at that subdomain was "in breach of UK law, namely Copyright, Design & Patents Act 1988, offences under the Fraud Act 2006 and conspiracy to defraud". GitHub complied with the notice and blocked the sub-domain.
However, the operator of The Proxy Bay filed a counter notice arguing that his website does not, in fact, breach UK law, based on the argument it doesn't actually host any copyright infringing content itself.
The counter notice stated: "The person claiming DMCA doesn't understand that there is no content hosted on proxybay.github.com, hence why it is wrong to send a DMCA request for it".
According to Torrentfreak, that counter notice was successful and GitHub has decided to reactive The Proxy Bay subdomain on its platform.
As Torrentfreak notes, that doesn't mean GitHub has made any decision itself regarding the legal status of The Proxy Bay within the UK, rather it simply complied with the procedures set out in the DMCA regarding copyright notices and counter notices and what it needs to do as the recipient of that paperwork.
We await to see if the BPI or City Of London Police choose to take any further action.
Kudos Records becomes an employee owned enterprise
That means, Kudos explains, that "the entire share capital has now been sold to a newly-formed employee ownership trust. As beneficiaries of that trust, each employee automatically becomes a co-owner in the business. As well as immediately benefiting from profit distributions, employees also have more input into the running of the company".
"Employee ownership is one of the fastest growing business succession solutions in the UK", the music firm adds. "There are now more than 1000 employee-owned businesses, with the sector more than doubling in the past three years".
That growth is partly because of moves in the last decade by the UK government, which introduced a framework and some tax benefits for employee ownership trusts back in 2014.
Kudos founder Danny Ryan, who will remain with the company as MD for at least the next five years, adds: "Kudos Records has always been committed to fostering a culture of ownership and engagement among its employees. This transition to employee ownership will further align the interests of employees with those of the business".
Alluding to recent consolidation in the music distribution sector, which has included all three majors buying up or into previously independent distributors, Ryan continues: "I've also always attached great importance to having a genuinely independent distribution option for record labels. In this era of consolidation, employee ownership secures Kudos's future as a truly independent music company".
Also commenting on the move to employee ownership, Ben Morris - a Label Manager and now Employee Trustee at the company - adds: "Kudos has always had a collaborative working environment and we aim to build on that as we enter this new chapter so that all employees will feel they have a voice in the direction of the company and a stake in its future".
The move at Kudos was also welcomed by the CEO of the Employee Ownership Association, James De Le Vingne, who says: "We congratulate our members Kudos Records Limited on its transition to employee ownership; securing the ethos, values and culture of the business, as well as rooting jobs in Kudos".
"Businesses that give employees a stake and a say build trust and shared responsibility", he goes on, "uniting leaders and employees behind a common purpose, and leaving businesses in a better position to flex and adapt".
Dizzee Rascal track removed from official coronation playlist due to assault conviction
When published yesterday, the Coronation Celebration Playlist included 'Dance Wiv Me', Dizzee Rascal's 2008 collaboration with Calvin Harris. However, the DCMS has now said that the song was included "in error" and has been removed.
"The playlist has been created to celebrate British and Commonwealth artists ahead of the upcoming coronation", says a spokesperson for DCMS in a statement. "A track featuring Dizzee Rascal was included in error and as soon as this was identified it was removed".
Dizzee Rascal - real name Dylan Mills - was convicted in March last year of assaulting his former fiancée Cassandra Jones. He then lost an appeal against that decision last week.
With 'Dance Wiv Me' removed, having apparently been added entirely by accident, the inclusion of the remaining 27 songs on the playlist is seemingly less controversial (depending on your personal view of some of the artists, I guess).
It is a very confusing collection of songs though, with no obvious indication for why many of them have been chosen to celebrate the crowning of a new king.
The coronation isn't due to take place until May, so perhaps if we all listen to the playlist enough before then, one of us will work out the thematic link. Or maybe spot other as yet unnoticed controversies that could get the whole thing ultimately reduced to no tracks.
Listen to the Coronation Celebration Playlist here.
EDUCATION & EVENTS
Record Store Day UK has announced The 1975 as its 2023 ambassadors. "The guys and I are really proud to be ambassadors for Record Store Day this year", says frontman Matty Healy. "Independent record stores are the lifeblood of the music industry and have played a crucial role in our story so far. It couldn't be more important to support their vital community and culture".
ILMC has announced details of a series of showcases that are taking place in the middle of this year's live music industry conference. Under the banner London Calling and also open to the public, shows will take place at Phoenix Arts Club, 21 Soho, The Lower Third and Spice Of Life in Soho, with performances from artists including Demob Happy, Hamish Hawk and Swim School. More info here.
A new Manchester-based music conference and festival, called Beyond The Music, is set to take place on 11-14 Oct. The event will be officially launched with a show headlined by New Order at SXSW next month. More info here.
Chat Pile have released the video for 'Tropical Beaches Inc' from their 'God's Country' album. "'Tropical Beaches Inc' is a favourite among the band and probably the song that's the most fun to play live", they say. "It has some of the dumbest riffs on the whole album and we gleefully lose a couple brain cells every time we play it".
Shonen Knife have released new single 'Mujinto Rock', the opening track from new album 'Our Best Place', which is out on 15 Feb.
Jonnine has released new single 'Tea For Two (Boo)'. The HTRK vocalist's new solo album 'Maritz' is out on 16 Feb.
Fatima Al Qadiri is set to release new EP 'Gumar' on 10 Mar. From it, this is 'Mojik (Your Waves)'.
BRDMM have released new single 'It's Just A Bit Of Blood', their first for Rock Action Records. The band are set to release new album, 'I Don't Know', on 30 Jun.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Lawyers finally locate Kanye West to formally drop him as a client
Law firm Greenberg Traurig was one of the plethora of West's business partners that sought to cut ties with the rapper last year once he started spouting ever more controversial and offensive statements.
The judge overseeing the 'Flowers' copyright litigation granted Greenberg Traurig's motion to withdraw from the case at the end of November, but also ordered the law firm to personally serve West with a 'withdrawal order' that stated it is no longer representing him in the case.
Serving that paperwork proved to be a challenge, because West had changed his address and phone number, and all the representatives the lawyers use to talk to had likewise cut their ties with the musician.
Last month the lawyers told the judge they were struggling to find West to serve the papers and asked if they could formally part company with the rapper through less conventional channels. One proposal was that they'd take out adverts in two LA newspapers telling West they were no longer working on the 'Flowers' case.
The judge wasn't so keen on that idea and suggested the lawyers hire a private investigator or undertake some more rigorous database searches to locate West. But, it turns out, shortly after the judge made those suggestions Greenberg Traurig finally tracked West down.
According to Billboard, Nina D Boyajian from the law firm told the judge last week via a legal filing: "On 18 Jan 2023, an attorney based in California contacted my firm advising that he would be representing Ye on some of his legal matters".
"During the course of several emails and a phone call with this attorney, I requested that he coordinate personal service of the order on Ye", she added. "On 1 Feb 2023, the attorney referenced above emailed me the executed certificate of service".
"The address at which Ye was personally served is not one that is publicly affiliated with Ye or his businesses, but one that Ye nonetheless frequents", the filing added. "The location also appears to be primarily used by persons and entities not affiliated with Ye or his businesses".
So, all's well that ends well I guess. Until this new attorney wants to break ties with West and the process starts all over again.