More court submissions and another lawsuit add to Spotify's mechanicals woes
Spotify's mechanical woes in the US have further escalated this week with three significant developments: an objection to the streaming firm's proposed settlement of the original class action on this issue, a firm rebuttal of its most recent legal arguments, and a brand new lawsuit to add to the pile. Good times.

As much previously reported, as well as needing two sets of music licences in place - so to cover both recording rights and song rights - a streaming service needs to ensure that its licensing deals cover both the 'reproduction' element of the copyright and the 'communication' element of the copyright. Because it's generally been agreed to date that an on-demand stream is both a copy and a communication at the same time.

The distinction between the reproduction and communication elements of the copyright is more important when it comes to songs, because in some countries the so called 'mechanical rights' (the copying) and the 'performing rights' (the communication) have traditionally been licensed separately. So in the UK, performing rights are controlled by PRS, while mechanical rights are licensed by either MCPS or the music publisher direct.

In the US, performing rights go through the collecting societies like ASCAP and BMI. But there is no American equivalent to MCPS for mechanicals, so a streaming company can't get one industry-wide blanket licence from one organisation.

Actually, US law provides a compulsory licence covering mechanicals, so rights owners can't withhold permission and royalty rates are set by law. However, under that compulsory licence a streaming firm must contact the copyright owners of each and every song it streams and hand over the statutory royalties in a timely fashion. Where rights owners can't be found, it should alert the US Copyright Office of that fact.

Traditionally mechanicals in the US - on both physical releases and downloads - were sorted out by the record companies as and when new records were put out. Meanwhile, with personalised radio services like Pandora - the first streaming set-ups that came to market - it was deemed that no mechanical royalties were due, so these platforms could license the song rights entirely via the societies like ASCAP and BMI.

However, when on-demand streaming came along, it was decided that mechanical royalties were due, but that the service rather than the label should to the licensing. Which meant the new streaming services needed to work out who needed to be paid mechanical royalties on each of the millions of songs in their catalogues. Spotify hired the services of a company called The Harry Fox Agency - which had provided similar services for the labels - to do just that.

As it turned out, that process didn't go so well, meaning that plenty of songwriters and publishers - while getting their performing right royalties via the collecting societies - weren't getting the mechanical royalties they were due from Spotify, and many of its rival services. A fact that resulted in a flurry of litigation, the most high profile being the class action lawsuits pursued against Spotify by musicians David Lowery and Melissa Ferrick.

Spotify ultimately settled those two class actions - which had been merged into one by the courts - while also announcing a separate deal with the National Music Publishers Association that it hoped would stop any future mechanical royalty lawsuits being filed. Between them, those two settlements saw Spotify commit to hand over tens of millions of dollars in damages, which would probably have been fine had it brought the whole American mechanicals debacle to a conclusion.

It did not. Earlier this year new lawsuits were filed by Bluewater Music Services and Bob Gaudio which made all the same claims as the earlier litigation, while arguing that the NMPA deal on mechanicals "did nothing to resolve the outstanding issues". Seemingly no longer in any mood to negotiate yet another settlement, this time Spotify bounced back a bold new argument: who's to say mechanical royalties are even due on a stream?

Actually, prior to this point Spotify was among the people saying that mechanical royalties were due on streams. The company's previous response had been to gripe that, with no MCPS equivalent in the US, and no publicly-accessible central database of music rights information, it was more or less impossible to ensure everyone got their mechanical royalties. But now the streaming firm is arguing that no one has actually proven it is exploiting the mechanical rights in the songs its streams, mainly citing the legal precedents that decided personalised radio services only needed performing right licences.

The lawyer leading the latest lawsuits, Richard Busch, has now responded to that new line of argument in a new submission to the court.

Hitting back at Spotify's suggestion that his clients' lawsuits were high on bluster but low on specifics as to how the streaming firm is infringing their copyrights, Busch declares that: "it is clear that mechanical licences are required to engage in the process of interactive streaming, and the industry has reached a consensus on this topic".

He then argues that the legal precedent cited in Spotify's most recent submission all relates to personalised radio services rather than on-demand streaming platforms. "Numerous courts and other sources have specifically noted the distinction between Spotify's interactive streaming service and other non-interactive services", he states.

He goes on: "While Pandora [et al] may be able to get by on public performance licenses alone, the same cannot be said of Spotify and its interactive streaming service. Once this distinction is taken into account, one need not look further than the very case law cited by defendant to realise where defendant's argument falls apart".

So take that, Spotify. And while you're at it, here's yet another mechanical royalties lawsuit, filed in Nashville and also led by Busch, this time on behalf of seven independent publishers: A4V, J&J Ross Co, Lakshmi Puja Music, Lindabet Music Corp, Music By Shay, Music Of The West and Swinging Door Music.

Oh, and you know that settlement you reached on the Lowery/Ferrick class action? Well, let's not forget that still needs court approval. And look, here's a long line of songwriters telling the court not to approve. A document titled 'Objections To Proposed Class Action Settlement Agreement' was filed with the New York courts earlier this week.

The court filing reckons that "the settlement agreement is procedurally and substantively unfair to settlement class members because it prevents meaningful participation by rights holders and offers them an unfair dollar amount in light of Spotify's ongoing, wilful copyright infringement of their works". Somewhat ironically, one of the reasons given for the settlement being "procedurally unfair" is that it will be hard for songwriters to comply with the proposed process because of the lack of a decent music rights database.

So, all in all, Spotify is still stuck in a mechanical royalties quagmire as it continues to march towards a listing on the New York Stock Exchange later this year (a process that nevertheless continues, with the company's money lenders reportedly now being consulted about the firm going with an unusual direct listing rather than a conventional Initial Public Offering as it arrives on Wall Street).

It's worth adding that Spotify's surprise new "we're not convinced mechanicals are due at all" defence - which was always going to controversial, even among the digital firm's friends in the music publishing world - isn't about the streaming service trying to pay songwriters and publishers less money. It's about trying to circumvent America's messy mechanicals system.

Presumably Spotify has come to the conclusion that - however many settlements it reaches - there could always be another songwriter or publisher arriving on the scene demanding statutory damages of up to $150,000 per song streamed, even if only a few dollars of mechanical royalties are actually due. And that's clearly not tenable long-term.

That position is understandable. Although going against even your own past statements of how on-demand streaming services are licensed is a risky move. There are companies out there who reckon they could do a much better job of ensuring everyone gets paid the mechanicals they are due, reducing the risk of regular rounds of litigation over unpaid monies. If Spotify's current legal gamble fails, you can only hope that one of those companies is right.

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BMG acquires AXS Music
BMG Production Music has acquired French independent library music company AXS Music (not to be confused with AEG's ticketing company AXS; don't go confusing that).

The deal will see AXS founder Axel von Hueck set up a new French division of BMG Production Music, which will be run day to day by new MD Jérôme Keff, who joins from Universal Publishing Production Music France.

"Just months after the creation of BMG Production Music, these moves are indicative of our ambition to create a global alternative to the established players", says BMG Production Music Worldwide MD Geert-Willem Koolhof. "There is a lot more to come".

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Reservoir acquires classic soul catalogues
US music publishing company Reservoir has announced the acquisition of the soulful song catalogues of Willie Mitchell, Leon Ware and Norman Harris, plus Walter Orange and Thomas McClary of The Commodores. That's over 1000 songs. Over 1000 "genre defining" songs, according to Reservoir. I don't know about that. I haven't listened to all of them. I can only attest to the quantity, not the quality.

"The opportunity to build upon the legacies of genre defining music is rare and thrilling", says Reservoir's SVP of A&R & Catalogue Development Faith Newman. "When I connected with Willie Mitchell's son, Boo, and Norman Harris' son, Dorian, as well as with representatives for Leon, Thomas, and Walter, I let them know that it is important to Reservoir to ensure that historic catalogues continue to inspire new generations. As a Philadelphia native, soul music runs through my veins and I am very passionate about seeking out the gems in this often-underappreciated genre of music".

She adds: "Our licensing teams in Los Angeles, New York and London will pursue new opportunities for syncs, samples, and lyric reproductions, so that these works will continue to live on for years to come. Reservoir has already licensed The Commodores' 'Night Shift' in a major ad campaign for African telecommunications company MTN and watching new audiences discover this music is amazing".

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Young Americans not too keen on radio and albums either
The retailer-focused Music Business Association in the US has published a new report called 'Music Consumption: The Overall Landscape 2017'. Put together by AudienceNet, the study is basically the American version of the same research group's previously reported UK-based 'Audiomonitor' report.

Both versions throw up some similar findings, particularly on the listening habits of young people. As with the UK report, the US version shows that 16-24 year olds are listening to less radio and fewer albums than older generations.

However, they are listening to radio slightly more than in the UK (17% versus 10%), so maybe that's something to be cheerful about. Radio is doing better than CDs anyway, which get just 2% of young folk's listening hours - much less than the national average of 19%.

Streaming services - and their playlists - are increasingly key for this demographic. Unlike the UK results, the study found that YouTube takes up the highest amount of listening time among young people - 37% versus Spotify's 35%. YouTube also has a far higher reach than the other digital services, as it does in the UK.

Overall, 47% of young people said that they use on-demand streaming to access music, compared to a 26% national average. There were also stats on the popularity of different services among the US population as a whole. YouTube came out top, with 49%, followed by Pandora at 24% and Spotify at 21%. Facebook meanwhile jumped from 7% last year to 19% in this year's report, matching the reach of CDs and overtaking iTunes, which sits at 15%, making it level with Amazon Prime Music.

"This study confirms that music consumption is just as diverse as the people doing the listening, with each age group embracing different services in their own way", says David Lewis, CEO of AudienceNet. "Streaming behaviour is also evolving, with Spotify gaining ground and platform-created playlists becoming a major listening source. We look forward to seeing how these trends continue to evolve as these services mature".

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Latest CMU Insights training courses kick off next week
The next season of CMU Insights training sessions kicks off at the London HQ of Lewis Silkin next Monday (18 Sep) with a half-day masterclass on the streaming business, explaining how digital services are licensed, how streaming royalties are paid, and which services are dominating where. Check this blog post with more information on what will be covered.

You can still buy tickets for the masterclass here.

The following Monday (25 Sep), the eight week CMU Insights evening seminars programme starts up again, providing a concise but comprehensive overview of the music business in 2017. A lot is covered over the eight weeks, and this new CMU Insights blog post explains in more detail just five of the things attendees will learn.

You can book for the full course here, or for individual seminars here.

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PRS Foundation to launch new female focussed music industry development programme at Reeperbahn
The PRS Foundation has announced a new two year project called Keychange, aiming to empower women in the music industry. Launching at the Reeperbahn festival next week, the initiative will hold events at seven showcase festivals around the world, before a final event at the European Parliament in Brussels in 2019.

The new programme is backed by 200,000 euros of EU funding, as part of the Creative Europe programme. At its heart will be a talent development programme, aiming to help more women get ahead in music.

On 22 Sep at Reeperbahn in Hamburg, 60 participants in the two year programme will be announced. There will also be a panel discussion on how to empower those underrepresented in the music industry, featuring Garbage's Shirley Manson, Metric's Emily Haines, Nadine Shah and PRS Foundation chief executive Vanessa Reed, among others.

From there, Keychange will host events, including discussions and practical sessions, at festivals such as Way Out West in Sweden, Iceland Airwaves, and The Great Escape in the UK. The final aim is to present a manifesto for change in the music industry. In particular, there will be a focus on improving the low number of women who are registered as songwriters with collecting societies like PRS - at the UK society, currently just 16% of the membership is female.

"Reeperbahn Festival is rightly proud to be the German partner in the Keychange initiative", says Reeperbahn founder Alexander Schulz. "We look forward to presenting the project's launch and working alongside some very impressive, like-minded events with the distinct aim of making a meaningful difference and lasting improvement to the way women in our industry are involved and included in music festivals, conferences, and the business environment in general".

Vanessa Reed adds: "European and international collaboration is essential to the creative and business development of all talented artists and the music industry's future success. Keychange's focus on enabling more women to access international networks and new markets at critical stages in their career will help them realise their potential as future leaders of an industry that is ready for and will benefit from change".

The initial panel discussion will take place at Reeperbahn at the Arcotel Onyx at 12.30pm on 21 Sep, followed by the official launch and announcement of Keychange's 60 participants at the East Hotel Private Cinema on 22 Sep at 10am. More information here.

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Kiri Te Kanawa retires from public performance
Opera singer Kiri Te Kanawa has announced that she is retiring from public performance. She hasn't performed for a year already, and has now confirmed that this is a permanent decision.

Speaking to the BBC, Te Kanawa, who already retired from appearing in operas in 2009, said: "I don't want to hear my voice. It is in the past. When I'm teaching young singers and hearing beautiful young fresh voices, I don't want to put my voice next to theirs".

She added that after an "amazing career", which spanned five decades, she wanted to decide "when it was going to be the last note". The point came at a performance in Australia last October, she said. "Before I'd gone on, I said, right, this it. And that was the end".

The musician now runs a foundation to support young singers in New Zealand.

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Jessie J announces new EP
Jessie J is back, and she's bringing with her a new EP called 'ROSE'. That stands for 'Realisations, Obsessions, Sex and Empowerment', if you were wondering. It's also named after her mother. And roses.

In a video on Instagram announcing the new release, she said: "My mother is called Rose, she gave me the gift of life. A rose is at its most beautiful when budding. I rose above the pain. We give roses or a single rose as a gift with so many different feelings. This is my gift to you. For each letter there is a word and for each word there's a song I will share with you".

As for why she's been gone for so long since her last record, she explained: "I didn't want to make music anymore. Then I tried to stop and I didn't know how to because it's impossible to walk away from true love. Art, emotion, lyrics, music is what I need to survive. I don't do this because I want to do it, I do it because I have to. I feel everything so deeply. It's a blessing and a curse and I lost my passion to create. To draw a line between business and art. I'd fallen into darkness and allowed myself to be led by fear. The fear was keeping other people happy who didn't ever care".

The EP's first single, 'Think About That', is out on Friday. Ahead of that, here's another new single, 'Real Deal', which was released last month.

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Tegan & Sara announced tenth anniversary The Con covers album
Tegan & Sara have announced a compilation of covers of songs from their 2007 album 'The Con' to mark the tenth anniversary of the record. Ryan Adams, Chvrches, Cyndi Lauper, Grimes, Mykki Blanco and Kelly Lee Owens are among the performers who will appear on the record.

Profits will go to the duo's charity, The Tegan & Sara Foundation, as will a portion of the profits from a tour to mark the album's anniversary.

"As the tenth anniversary of 'The Con' approached, Sara and I started to brainstorm meaningful ways to celebrate what was easily one of our most important records", says Tegan. "Almost immediately we established that a tour playing all fourteen songs in a more intimate and stripped-down arrangement would be memorable for our diehard fans. But we also wanted a companion piece that would live on past the anniversary, hence 'The Con X: Covers' album was born".

She continues: "We wanted the proceeds to go to our recently launched Tegan & Sara Foundation, which raises money for self-identified women and girls in the LGBTQ community. With that intention set, we asked fourteen artists who were either outspoken allies of the LGTBQ community or LGBTQ themselves to each cover a song from 'The Con', in any fashion they saw fit. All the artists agreed to donate their time and energy to the project and their labels all agreed to waive their fees as well. We are beyond grateful for the contributions of each artist, and we hope fans of 'The Con' will be moved by their interpretations".

Here is the full tracklist:

1. Ruth B - I Was Married
2. Muna - Relief Next to Me
3. Shura - The Con
4. Mykki Blanco - Knife Going In
5. Pvris - Are You Ten Years Ago
6. Ryan Adams - Back in Your Head
7. City and Colour - Hop a Plane
8. Kelly Lee Owens - Soil, Soil
9. Bleachers - Burn Your Life Down
10. Hayley Williams - Nineteen
11. Sara Bareilles - Floorplan
12. Shamir - Like O, Like H
13. Trashique (Grimes & Hana) - Dark Come Soon
14. Chvrches - Call it Off
15. Cyndi Lauper - Back in Your Head (Bonus Track)
16. Bleached - One Second (Bonus Track)
17. Vivek Shraya - I Take All the Blame (Bonus Track)
18. Tegan & Sara - Miami Still (Bonus Track Demo)

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Queen, Fergie, Four Tet, more

Other notable announcements and developments today...

• Mike Myers is in negotiations to appear in the long-delayed Queen/Freddie Mercury biopic, according to Deadline. It's not known what part he'd play, but maybe he could reprise this.

• Fergie has released the video for her Nicki Minaj collaboration, 'You Already Know'. Fergie's new solo album, 'Double Duchess', is out next week.

• Four Tet has announced that the first 1000 physical copies of his new album, 'New Energy', will be sold through Oxfam's website and selected charity shops around the country. The album is out on 29 Sep. From it, this is 'Scientists'.

• Enter Shikari have released new track 'Rabble Rouser' from new album 'The Spark', which is out next week.

• King Krule is back, with plans to release a new album called 'The Ooz' on 13 Oct. First single, 'Dum Surfer', has just arrived in video form.

• Shamir is going to release a new album, 'Revelations', on 13 Nov. Here's first single, '90s Kids'.

• Alvvays have released the video for 'Dreams Tonite', taken from their new album 'Antisocialites'.

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

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Gene Simmons will hand deliver his new boxset to your door (for $50,000)
Gene Simmons - out of the goodness of his heart - has decided that it's time for all of the solo recordings he never thought worth releasing publicly at any point in the last five decades to be made public. And all he wants in return is thousands of your dollars.

'The Vault' box set will contain 150 "deeply personal" songs recorded between 1966 and 2016, featuring "notable rock and roll artists" as well as Simmons' Kiss bandmates. It also comes with a Gene Simmons action figure, a commemorative coin, a book and something he grabbed out of his own archive, all sealed in a box that looks like a safe. What's more, if you want it, you have to look Simmons dead in the eye as he hands it over to you.

Yes, that's right, Gene Simmons is hand delivering all of these. Because who trusts the postal system anymore? Please note though, this comes at quite a premium.

Your cheapest option is to attend one of several playback parties around the world, where the man himself will play some of his favourite tracks, do a Q&A, shove the boxset into your hands and then get the hell out of there. This will only cost you $2000, plus whatever travel costs you incur.

But who wants to sit around with a load of smelly, albeit it reasonably wealthy, Gene Simmons fans? Much better would be to just hang out with Simmons alone. Maybe in a recording studio. Don't worry, he's thought of that. For just $25,000, you and a friend can sit in a recording studio with Gene for an hour and listen to a few of the songs. You'll also get an Executive Producer credit on the boxset. Again, any extra costs incurred, for example travel and accommodation, will be your responsibility.

What if you can't or won't travel though? Say you don't like going outside, or you're under house arrest. Are you to be denied the chance of owning this momentous record release? No, of course not (so long as you're based in the US, excluding Alaska and Hawaii). For just $50,000, Gene Simmons will travel to your actual house and kick it through the door. He'll also hang around for a couple of hours to chat. What's more, you can invite 25 guests, who you could then charge $2000 each to get in, meaning it wouldn't cost you anything. Though then it would be just like one of the aforementioned listening parties, except you'd have to provide the refreshments.

I know what you're thinking. Couldn't you just get him to clean your house for the two hours, so to get a return on your investment? No, the terms and conditions prohibit this. "The Demon does not do housework, including windows".

If the thought of being near Gene Simmons strikes fear and terror into your heart, you can actually just have the box set posted to you. It'll still cost two grand though. All the details are here.

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