Californian court told to consider impact of MMA on Flo & Eddie's Pandora dispute over pre-1972 royalties
While Eminem tests what America's Music Modernization Act means for songwriters still annoyed about past non-payment of mechanical royalties by the streaming services, the Ninth Circuit appeals court has asked a lower court in California to consider what the same act means for any ongoing disputes involving unpaid digital royalties on pre-1972 recordings.

The MMA reformed US copyright law in a number of ways. Perhaps the biggest reforms related to the way the mechanical rights in songs are licensed Stateside. In theory those reforms were meant to bring to an end the long line of lawsuits being pursued against the on-demand streaming services over unpaid mechanical royalties. Although Eminem's publisher then sued Spotify, claiming that the bit of the MMA stopping future lawsuits on past unpaid mechanicals was unconstitutional.

Another part of the MMA related to the use of recordings - rather than songs - by online and satellite radio services, including personalised radio platforms like Pandora. Under US-wide federal copyright law AM/FM radio stations aren't obliged to pay any royalties to artists and labels for the recordings they play, but satellite and online stations are. However, recordings released before 1972 are protected by state-level rather than federal copyright law, so digital services argued that that royalty obligation didn't apply to pre-1972 tracks.

Various lawsuits were filed on this issue in various states, with artists and labels seeking to force the likes of satellite radio company Sirius XM and the aforementioned Pandora to pay royalties on pre-1972 as well as post-1972 recordings.

The most important of those cases were the ones pursued in the Californian courts against both Sirius and Pandora by Flo & Eddie, former members of 1960s band The Turtles. Because, at first instance, it was decided in the Californian courts that satellite and online radio services probably were obliged to pay royalties on older tracks under state law, even though said state laws didn't specifically talk about digital services.

Pandora subsequently took the case to the Ninth Circuit appeals court. Judges there then bounced some questions upwards to the state's Supreme Court. But while all that was ongoing the record industry successfully lobbied to have federal copyright law amended - as part of the MMA - to confirm that satellite and online radio definitely did have to pay royalties on pre-1972 as well as post-1972 sound recordings.

But while that new law removes any debate over the royalty obligations of services like Pandora moving forward, what about any royalties that were not paid in the past? The MMA does have some provisions to reduce the liabilities of digital services regarding past non-payment of royalties on older recordings, providing said services meet certain criteria. But questions remain as to quite if and how those criteria are met.

Which means questions specifically remain about the Flo & Eddie v Pandora case. Earlier this year California's Supreme Court said it no longer needed to consider the questions previously raised because of the MMA, duly passing the matter back to the Ninth Circuit.

And now the Ninth Circuit has said that, when it comes to assessing whether Pandora still faces liabilities for past non-payment of royalties in the context of the MMA, well, that's a matter for the district court that first considered the original lawsuit.

The appeals court said in a ruling last week: "Whether the MMA applies to and pre-empts Flo & Eddie's claims, as Flo & Eddie note, cannot be answered on the record before us. The resolution of this issue depends on various unanswered factual questions".

Running through some of those questions - and other issues raised by Pandora - the Ninth Circuit concluded: "Given the enactment of the MMA, the district court should address the above dispositive factual and legal issues in the first instance".

Legal reps for Flo & Eddie welcomed the ruling, telling Law360 that it was a "great result" for their clients. It now remains to be seen what happens in what should be the very final chapter of the long running pre-1972 digital royalties debate in the US.

BACK TO THE TOP OF THE BULLETIN

Settlement brings to end latest dispute between Experience Hendrix and late musician's brother
Jimi Hendrix's brother has settled his latest legal dispute with Experience Hendrix LLC, the company run by the late musician's estate. Leon Hendrix and his business partner Andrew Pitsicalis have admitted to trademark infringement and agreed to stop using Jimi Hendrix's name and likeness to sell various alcohol and marijuana products.

Leon has had various disputes over the years with Experience Hendrix LLC, a company that is overseen by Hendrix's adopted sister Janie. The most recent lawsuit was filed with the New York courts in 2017.

That lawsuit stated: "Over the past ten years, defendants Andrew Pitsicalis and Leon Hendrix, and a variety of individuals and entities with which they have been associated, have attempted to hijack plaintiffs' trademarks and copyrights for their own personal gain. Federal courts have repeatedly prohibited those unlawful activities".

In the settlement papers filed with the courts last week, Pitsicalis admits that his business ventures with Leon infringed an assortment of trademarks and copyrights controlled by Experience Hendrix LLC, as well as Jimi Hendrix's publicity rights in those US states where such rights exist posthumously.

The settlement papers also reference a permanent injunction banning the defendants from any future use of the Hendrix IP, and a $2 million judgement against Pitsicalis which, it confirms, supersedes any past judgements in this domain.

Neither parties have as yet commented on the agreement, but it seems that it brings to an end all the various disputes with Leon and his business partner, while putting in place a wide-ranging commitment that they do not seek to exploit the Hendrix brand in any way in any future business dealings.

--------------------------------------------------

Cloudflare says the music and movie industries misrepresent its business in their notorious markets piracy submissions
After America's Internet Infrastructure Coalition had a good moan last week about its members, like Cloudflare, being included in the piracy gripe lists of the music and movie industries, now Cloudflare itself has criticised its critics.

This all relates to the US Trade Representative's annual notorious markets report, which aims to inform the American government on piracy issues for whenever it's in discussions with foreign governments on IP matters.

As part of the production of that report, America's copyright industries, including the music business, each make submissions outlining their main piracy concerns of the moment and listing the websites and companies that they believe are negatively impacting on their IP rights. And while most of those sites and companies are full-on piracy set ups, the gripe lists also include otherwise legitimate internet firms who services are used by the pirates.

Complaining about that fact, the Internet Infrastructure Coalition asked the USTR to better define a notorious piracy market, arguing that "notorious markets should not be confused with neutral intermediaries such as internet infrastructure providers".

Now, according to Torrentfreak, Cloudflare itself has also written to the USTR arguing that its operations are being misrepresented whenever the music and movie industries are griping about their primary piracy concerns.

The newly New York Stock Exchange listed internet firm's General Counsel, Doug Kramer, writes in his letter: "My colleagues and I were frustrated to find continued misrepresentations of our business and efforts to malign our services. We again feel called on to clarify that Cloudflare does not host the referenced websites, cannot block websites, and is not in the business of hiding companies that host illegal content - all facts well known to the industry groups based on our ongoing work with them".

Continuing on that theme, Kramer goes onto to add that his company works with many of its critics in the copyright industries, including the Recording Industry Association Of America. For example, by helping them to identify the hosting locations of piracy sites which use Cloudflare's system in such a way that any actual location is hidden.

The Cloudflare man then argues that one of the reasons that the RIAA et al continue to moan about his company in their notorious markets submissions is that they want to pressure the firm to "take over efforts to identify and close down infringing websites for them". But, the legal man adds, "that is something that we are not obligated to do".

As with the Internet Infrastructure Coalition intervention last week, it remains to be seen if Cloudflare's letter means it won't actually get a formal mention in the USTR's latest notorious markets report when it is published.

BACK TO THE TOP OF THE BULLETIN

Liam Payne announces debut solo album
Liam Payne has announced that he will release his debut solo album in December. It's three years since One Direction split now, so he's had plenty of time to think up a great title. I guess he's been focussed on other things though, because he's plumped for 'LP1'.

Quite a lot of the album will be familiar, as it will feature all seven of his previous solo singles. Still, there are another ten tracks on there that are brand new. I'm looking forward to 'Rude Hours' and Christmas song 'All I Want (For Christmas)'.

"I'm so excited to be releasing my debut album this December", says Payne. "I've had so many amazing experiences over the last few years which I've used as inspiration for this record - it's been a real labour of love. I've worked with some incredibly talented people in the studio to produce an album that truly represents me which I'm very proud of".

He certainly has worked with some big names to write and produce the album. They include Ed Sheeran, Ryan Tedder, Zedd, Jonas Blue, Steve Mac, Joe London and The Monsters And The Strangerz.

'LP1' is set for release on 6 Dec.

--------------------------------------------------

Pete Tong and Heritage Orchestra announce 'chilled' new album
Pete Tong has announced his third album collaboration with the Heritage Orchestra, classicalling up a whole load more classic dance tracks. This release, titled 'Chilled Classics', takes things down a gear.

"We hope our versions are true to the visions of the original songwriters, producers and artists", says Tong. "But equally, they have to stand alone as a worthwhile tribute, alternative and complementary to those visions".

"[The album] is chilled in the sense of a sunset set Ibiza", he goes on. "So that doesn't mean it's all ambient or meditation music. It's what a DJ might play at Café Mambo or Café del Mar as the sun's going down. So it can have tempo and be quite soulful too".

The album also has some original compositions, including new single 'Go Crazy', which features producer Todd Edwards.

"Todd used to be signed to me back in the day at FFRR", adds Tong. "We always stayed in touch, and he moved to LA and I kept bumping into him. I gave him all the references of what I was looking for, sent it over to him, and a month later he came back with this. He came up with the line 'go crazy', which was a no-brainer for us, for the show, for everything. I'm super-pleased to be reunited with him and really proud of it. It's an amazingly powerful three minutes, with the Heritage Orchestra vocalists backing him up".

Other tracks on the release include versions of Underworld's 'Born Slippy' featuring Wiley, Red Carpet's 'Alright' featuring Au/Ra, Robyn's 'Every Heartbeat' featuring Zara Larsson, Neneh Cherry and Youssou N'Dour's 'Seven Seconds' featuring Grace Carter and Langa Mavuso, Groove Armada's 'At The River', and Samuel Barber's 'Addagio For Strings'.

Listen to 'Go Crazy' here.

The album is set for release on 29 Nov. There are also live dates upcoming in December, which are as follows:

4 Dec: Bournemouth International Centre
5 Dec: Nottingham, Motorpoint Arena
6 Dec: Leeds, First Direct Arena
7 Dec: Manchester Arena
8 Dec: Glasgow, Hydro
10 Dec: Cardiff, Motorpoint Arena
11 Dec: Arena Birmingham
13 Dec: London, O2 Arena
14 Dec: London, O2 Arena

--------------------------------------------------

Susanne Sundfør announces Music For People In Trouble live album
Susanne Sundfør has announced that she will release a live recording of a show at London's Barbican venue from last year. The performance of her 'Music For People In Trouble' album is set for release next month.

"The 'Music For People In Trouble' show at the Barbican was the last of a short and sweet tour, where me and my team of musicians and crew performed the album behind a veil that covered the whole front of the stage", she says. "We put videos on the veil, making the stage both a 2D and 3D experience alternating between animation, photography and live video of the performance layered on top of the actual performance".

"The veil was like a fishnet up close so the audience could easily see the musicians if the screen was blank", she adds. "I've been touring on and off for a decade, and I felt like it was time to try something different with the way I perform my music. I've always loved going to the movies, opera, ballet, it sucks you in, it's a more intense experience because it combines so many different artistic expressions at once, and that's what I wanted with the 'Music For People In Trouble' show".

So that all sounds very exciting. But if you weren't there to see it in person, you're not about to get a chance to see it now.

"Unfortunately we didn't get any good footage of the performance", she says. "It lives on in people's minds, and there's something unmodern and romantic that I like about that. You can't Google it. You'll find snippets on Instagram, but it doesn't reflect the three dimensional space of the beautiful concert halls we played in. It's our little secret, our little, intimate moment together, us and the audience. But we got a good quality recording of the music, and that's something at least".

So that's quite a downbeat way to sell your new live album, isn't it? I saw that show though, and it really was great. She's right to say you missed out big time if you weren't there. Bad luck you. But the music's the most important thing, surely. And you will get to hear that when this album is released on 29 Nov.

In fact, you can hear some right now. Here's 'Reincarnation'.

BACK TO THE TOP OF THE BULLETIN

DIGITAL

DJing software maker Serato has announced that it will update its various programmes with support for the MacOS Catalina operating system on 21 Oct. Apple recently warned DJs not to update their operating systems, as the removal of the iTunes app also removes some functionality used by many DJ software packages for managing digital music libraries.

--------------------------------------------------

RELEASES

Kanye West has put a trailer for his Nick Knight-directed 'Jesus Is King' IMAX film up on his website. He's also confirmed that it will be screened in the UK and Ireland on 25 Oct. The delayed album of the same name is now also meant to be coming out on that day.

Machine Gun Kelly has released the video for '5:3666', featuring Phem.

Marilyn Manson has released a version of traditional American folk song 'God's Gonna Cut You Down'. The track will be released on limited edition picture disc vinyl on 12 Dec.

Kamille has released new Wiley-featuring track 'Don't Answer'.

Denai Moore has released new single 'To The Brink', the first track from her upcoming third album.

Allie X has released new single 'Rings A Bell'. It sounds a bit like something else, but I can't place it.

--------------------------------------------------

GIGS & TOURS

Having announced plans to release a Christmas album last week, Robbie Williams has now also announced a Christmas-themed live show at Wembley Arena on 16 Dec. Tickets go on sale on 7 Nov.

Talking of Robbie's Christmas album, while I mentioned last week that it is split into two sections - 'Christmas Past' and 'Christmas Future' - a reader pointed out that I had failed to say that it would make a great Christmas Present. For that I am truly sorry.

Nick Cave And The Bad Seeds will tour the UK in May next year, it has been announced. Kicking off at Arena Birmingham on 2 May, they'll close the run with two nights at the O2 Arena in London on 14-15 May.

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

BACK TO THE TOP OF THE BULLETIN

Perth Festival to pay tribute to AC/DC's Bon Scott with its own Highway To Hell
The Perth Festival in Australia will next year close one of the city's busiest roads and turn it into a venue in order to pay tribute to AC/DC and their late frontman Bon Scott.

Marking the 40th anniversary of Scott's death, the road-based concert will be named 'Highway To Hell', after the last AC/DC album the frontman appeared on before his death in 1980. The road set to host the festivities is called the Canning Highway, which links Fremantle, the port town where Scott lived, with the inner Perth suburb of Victoria Park.

The director of Perth Festival, Iain Grandage, notes that Scott himself used this particular stretch of the Canning Highway when travelling from his Fremantle home to play gigs in the city's Raffles Hotel, then a rock n roll hangout.

"The idea of closing down the highway to celebrate a favourite son is an exciting way to celebrate our city and bring the curtain down on the 2020 Festival", says Grandage. "Everyone is invited. As Bon Scott sings in the song that inspired this event: 'And all my friends are gonna be there too'".

Although named after 'Highway To Hell', the format of the Canning Highway venture takes its inspiration from a video recorded for an earlier AC/DC track, 'It's A Long Way To The Top (If You Wanna Rock 'n' Roll)', in which the band were filmed performing the song on the back of a flatbed truck driving around Melbourne.

During the Perth Festival event, various artists will perform AC/DC songs on the back of trucks that will slowly work their way along one half of the Canning Highway. Festival-goers will then be encouraged to sit on the other side of the road watching each performance as it goes by. There'll be four main performance areas with audience members encouraged to pick a spot, enjoy a picnic and watch the entertainment on each truck as it parks alongside.

The eclectic mix of artists due to take part in include Steve 'n' Seagulls, Shonen Knife, Amyl And The Sniffers and the WA Police Band.

BACK TO THE TOP OF THE BULLETIN