Discovery, Netflix and Epidemic Sound in the spotlight as the debate around audio-visual royalties gains momentum
There has been lots of chatter in recent weeks about the way songwriters and composers get paid when their work is used in TV programmes, prompted - in the main - by moves at the Discovery Network to change the way it licenses music for its US telly channels. Netflix's deals with music-makers have also been debated, while yesterday songwriter groups in Europe hit out at the innovative production music company Epidemic Sound.

When TV producers, film studios, gaming companies and advertising agencies want to use music in their productions they basically have three choices: license commercially released music (ie sync deals), commission some original music or utilise a production music library.

It's the latter two options that are part on the current debate. The question is, when a producer commissions some original music for a specific project - or a production music library commissions music to subsequently license to third-party producers - who owns the copyright in that music? Plus, when and how does the songwriter get paid?

With music rights, of course, nothing is simple. First of all, if a writer/musician both writes and records a piece of music for the producer or library, there are both recording rights and song rights being created, which copyright law treats separately.

Then, on the songs side, the music industry has traditionally distinguished between the 'mechanical rights' and the 'performing rights'. From an audio-visual perspective, the former is exploited when music is synchronised into the video, and the latter every single time the resulting product is broadcast, screened or streamed.

Now, the writer/musician could seek to retain all elements of all the copyrights they are creating and then license them to the producer or library. That licence would allow the producer or library to use the music in certain ways for a certain fee, but the musician would also be free to monetise their music in other ways with other parties.

However, because the aim of the production music business is to simplify licensing for the producer, libraries usually seek to own as many elements of the copyrights in the music they commission or buy as possible. As for original commissions by TV, film, gaming and advertising firms, there has long been a trend for those companies to also try to negotiate rights ownership from the music-makers they work with.

However, when libraries and producers seek to take ownership of the rights in the music they commission - what the songwriting community tends to refer to as 'buy outs' - there is usually a limitation. That being that the library or producer gets the recording rights and the mechanical rights of the song, but the performing rights of the song are not part of the deal.

This means the songwriter or composer receives an upfront fee for composing the music (and possibly recording it to, if they are involved in that), but will also receive additional royalties every time the finished product is broadcast, screened or streamed. That performing rights money will be collected through the collective licensing system.

It's the latter payments that Discovery Networks - which operates the Discovery Channel, Animal Planet, HGTV and Food Network - is seeking to remove by changing the deals it does with the songwriters and composers that it works with.

Variety reported last week: "Discovery has informed many of its top composers that, beginning in 2020, they must give up all performance royalties paid for US airings, and that they must sign away their ability to collect royalties on all past shows on its networks".

Amid widespread criticism of that move in the songwriter community, the Discovery Network sought to defend itself, albeit in somewhat vague terms, by telling reporters: "Our 8000 hours of original programming a year drives enormous economic value to the global music community. We compensate countless composers and musicians for their valued contributions, and will continue to do so".

The news of Discovery Networks seeking to change its music-maker deals followed another report in Billboard that Netflix now has a template agreement for songwriters and composers that also ensures no future royalties will be due beyond the upfront buy-out fee. Although Netflix insists that its songwriter agreements are negotiable, and signing up to a full buy-out arrangement is not mandatory if a music-maker wants to work with the company.

Technically, outside the US, most songwriters and composers would not be able to sign a deal that assigned the performing rights in their work to the library or producer, and/or which excluded the future payment of performing right royalties.

Because most songwriters and composers will be a member of a collecting society and - in most countries - when writers join such a society they actually assign all their performing rights to that organisation. Which means those writers are not in a position to include any performing rights and/or to exclude future performing right payments in any deals they do with a music library or a TV, film, gaming or advertising company.

The US is different because when songwriters join the collecting societies there - so ASCAP, BMI, SESAC or GMR - they do not grant those societies any exclusive rights over their work. So while the societies are still empowered to license each and any of the works their members create, their involvement in any licensing arrangement is not mandatory. Which is how a songwriter can do a direct deal with a library or producer that covers all future broadcasting, screening and streaming of the music in return for a one off fee.

The European societies in particular would argue that the system outside the US is crucial for protecting songwriters and composers from being forced into signing what many in the music community see as being unfair total buy-out deals.

It's unfair, they argue, because of the economics of writing music for TV, films, games etc. Those music-makers who are prolific in this space, it's argued, rely on the future performing right royalties, on top of any upfront fees, to ensure that they have a viable living.

That's particularly true when working on projects with relatively modest upfront budgets, but which turn out to be hit shows or movies that get repeat airings for years and years. The songwriter or composer can take a more modest fee upfront, in line with the project's budget, knowing that if that project is then a success, they'll get their reward down the line via the royalties collected for them by their collecting society.

While music industry conventions outside the US and, sometimes, copyright law itself, in theory protects songwriters and composers from the kinds of total buy-out deals being proposed by Discovery Networks and Netflix, there is a fear in Europe that - with the rise of global video streaming platforms - the American tech and media giants will seek to force the US system on everyone else.

Elsewhere in Europe, the European Composer And Songwriter Alliance - which unites songwriter groups across the continent, including the UK's Ivors Academy - yesterday hit out at Epidemic Sound, the Swedish production music company.

It, among other things, has become a key source of music for online creators, who find the complexities of music licensing incredibly confusing. And who are generally seeking a one-stop-shop licensing solution that even traditional music libraries are unable to offer, because of the performing rights complication.

For Epidemic Sound to be able to provide such a solution to online creators, as well as traditional broadcasters, the music-makers it works with have to sit outside the collective licensing system entirely.

That wouldn't work for those music-makers who have other projects on the go, or who are also frontline artists performing their own music. However, some argue, for some songwriters and composers the Epidemic Sound model really works, and why should industry conventions and/or copyright law seek to interfere with that?

ECSA, however, takes issue with the model, for both economic and moral reasons. "[Epidemic Sound] uses 100% buy-out contracts - where music creators sell their rights to a piece of music in exchange for a lump sum - and therefore [the company] claims that it entirely owns 'its music'", it said in a statement. "It even often substitutes the name of music creators with the company's name in the credits".

The latter criticism relates to the songwriter's moral right to attribution for their work, which sits in the Berne Convention copyright treaty and therefore most copyright systems around the world (although so called moral rights are actually waivable under UK law - plus in production music some music-makers choose to release their tracks under a pseudonym).

ECSA also criticises Swedish Public Service TV for licensing music from Epidemic Sound that is then credited to the company rather than the music-makers who wrote and recording it. "Any company should refrain from collaborating with an entity which disrespects authors and their basic economic and moral rights", it then states.

And, it goes on, "all our fellow music authors should refrain from signing any agreement which results in giving up all their economic rights forever, while not even being given credit according to his/her right by law".

Responding to ECSA's statement, Epidemic Sound boss Oscar Höglund told reporters yesterday: "We were surprised to find out that ESCA has publicly condemned Epidemic without engaging with us or - to our knowledge - any of our musicians. But it is not so surprising that they took this viewpoint as they come from the more traditional part of the industry, which we're disrupting".

"Our door is always open", he went on, "and we're happy to sit down with ESCA to bring them up to speed on how our model is perfectly suited to the distribution of music in the digital age, and for them to hear first-hand from our musicians about how our team and business model supports them both financially and creatively".

There is, of course, no one-size-fits-all model for music-making, or rights allocation, and the ideal scenarios for original commissions from producers are possibly different to when a music-maker is creating production music. And maybe licensing music for online creators should be different to licensing music for conventional broadcasters.

But either way, as with the world of streaming, things are in flux for the songwriter community in the audio-visual domain too. The challenge for the music industry is ensuring that legacy models and conventions don't stop new opportunities from being exploited. But, at the same time, there's obviously a need to ensure that it's the opportunities being exploited, not the songwriters.

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Judge declines to hold Kesha's ex-lawyer in contempt in Dr Luke defamation case
A US judge has declined to hold Kesha's former lawyer Mark Geragos in contempt of court, rejecting a recent request from legal reps for Dr Luke.

The attempt to have Geragos held in contempt was one of the side shows to the long-running legal dispute between Luke and Kesha. She, of course, accuses him of sexual assault. He has always denied that claim and argues that Kesha made it up in a bid to get out of contractual commitments to his various companies.

This has been a multi-layered legal battle that has involved multiple lawsuits in multiple states. And that includes some defamation lawsuits. Including one against Geragos, who was Kesha's legal representative for a while. That particular defamation claim related to comments Geragos made in which he implied that Luke had sexually assaulted Lady Gaga.

Last month Luke's legal reps made new claims about Geragos, generally criticising his conduct, both as Kesha's attorney and, more recently, in relation to the defamation litigation.

In particular, they urged the court to hold Geragos in contempt over allegations he had previously claimed, under oath in a deposition, that an assortment of documents the Luke side wanted access to had been destroyed. Said documents were then subsequently produced by the Geragos side as part of the ongoing proceedings.

Luke's side stated: "The Geragos parties' motivation for concealing these documents is obvious. This is a defamation action, arising from the efforts of defendant, Geragos, and defendant's other representatives to destroy [Luke]'s reputation and business through a coordinated media campaign. By concealing the documents which the court ordered the Geragos parties to produce, the Geragos parties sought - and still seek - to hide the full scope of those efforts, and the Geragos parties' involvement with them".

A spokesperson for Geragos's law firm was scathing about the contempt allegations, while also citing Luke's involvement in the recent Katy Perry song-theft case. They said: "The motion, which reads more like an incoherent and unintelligible sloppy rant, is entirely without merit. It appears that Luke is increasingly desperate after his last multi-million dollar litigation loss in the Katy Perry case. Frankly, he's a sad and desperate man who needs a new hobby".

The judge overseeing this element of the ongoing dispute yesterday declined to hold Geragos in contempt, or to issue other sanctions against the lawyer. She did concede that "Geragos's conduct "leaves much to be desired". However, she added, Luke's team had not successfully proven any "clear violation of a court order or a lie made under oath".

Following all that, Luke's lawyer Christine Lepera told reporters that she disagreed with yesterday's ruling, but said that she was nevertheless pleased with some of the judge observations, adding that further options for seeking sanctions against Geragos remained.

She said: "The court already admonished Mr Geragos, holding that he 'refused to abide by a court ruling' and that 'the court is dismayed at [his] conduct' ... Although the court declined to issue sanctions today, it has once again ruled that his behaviour 'leaves much to be desired' and it 'remains troubled' by his deletion of evidence. The court further held that plaintiffs can seek sanctions at trial due to his destruction of evidence, which plaintiffs fully intend to pursue".

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Hipgnosis signs Johnny McDaid
The Hipgnosis Songs Fund has acquired yet another catalogue, and it's another big one. This time its Snow Patrol keyboard player Johnny McDaid, who is perhaps better known these days for being the songwriting partner of Mr Ed Sheeran.

Says Hipgnosis founder Merck Mercuriadis: "It's hard to have some of the biggest songs in the world and yet still be so underrated, but Johnny is one of the most extraordinary creators and his work with Ed and so many others speaks for itself and it's an honour to welcome him to the Hipgnosis family".

McDaid's manager Erik Eger adds: "Merck's background as an artist manager enabled him to quickly understand what was important to Johnny in this deal and deliver on it. Johnny and I are encouraged by Merck's mission of advocating for songwriters and wish him every success in this endeavour".

As well as co-writing various songs with Sheeran - including 'Shape Of You' - McDaid has also penned tracks for the likes of Pink, Shawn Mendes, Robbie Williams, Keith Urban, Faith Hill, Tim McGraw, Example, Rudimental, Biffy Clyro and Birdy. Oh, and Snow Patrol.

The Hipgnosis deal sees it take a 100% stake in all of McDaid's rights relating to songs released before 1 Apr this year - that's 91 in total.

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Atlantic UK announces Briony Turner and Ed Howard as new presidents
Warner Music has announced Briony Turner and Ed Howard as joint Presidents of Atlantic Records UK. They replace Ben Cook, who recently announced he was stepping down from his role atop the Warner division.

Turner is currently co-Head Of A&R at the label, while Howard joins from Atlantic imprint Asylum, where he is Managing Director.

"From its inception in the States over seven decades ago, to the creation of the first stand-alone Atlantic Records UK company in 2004, the label has been guided by A&R-driven, independent-spirited leaders", says newly appointed Warner Music UK CEO Tony Harlow.

"Briony and Ed are carrying on that tradition with enormous success, time and time again showing that they can spot truly original talent and develop global superstars", he rambles onwards. "Their artists break the mould, transcend boundaries, and drive the conversation. They are brilliantly suited to take this culture-shifting label into the future".

Turner comments: "Atlantic has been my home for ten years this month, and I couldn't be more excited to be embarking on this next phase with Ed and the team. Giving artists the care, guidance and support they need to create their best music is what we strive to do every day at Atlantic UK".

"This artist-first philosophy", she waffles onwards, "is at the heart of what Ed and I believe in, and I know that together, we'll keep pushing Atlantic forward, breaking new ground as we go. I'd like to thank our outstanding Atlantic team for their continued support, and [also] join Ed in welcoming Tony into the Warner Music UK family".

Does Howard have anything to say? Sure he does: "Since relaunching Asylum twelve years ago, our aim has been to match the creativity, passion and drive of the unique artists with whom we're privileged to work. We've sparked collaboration and opportunity across our creative community, with an ambition to move the world".

"That philosophy extends to the entire Atlantic roster, team and culture", he burbles onwards. "And, I know it will form the foundation of my partnership with Briony. I'm so proud to begin this chapter with her, Tony, and the incredible Atlantic team, as we nurture generation-defining talent from the UK and across the globe".

Ben Cook resigned his position as President at Atlantic UK in October due to a recent controversy over a fancy dress costume he wore to a party in 2013. In a statement announcing his departure from the company he said that it had been "offensive" and "a terrible mistake" to dress as a member of Run DMC.

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Allie X announces new album, Cape God
Allie X has announced that she will release her second studio album, 'Cape God', early next year. It's got collaborations with Troye Sivan and Mitski on it. So there.

"Going into these buried feelings I had as a teenager was the perspective I chose to write this album from", she says. "It happened very naturally and without much thought once I started. As always, it was easiest to add an element of fantasy and aesthetic beauty to tell my story, and thus 'Cape God' was born".

"If I had to make a mission statement for this record I would say: 'Cape God' is a liminal space I created to explore my repressed feelings and perhaps create a different outcome", she adds.

The album will be out on 21 Feb. She will also play a one-off UK show at Heaven in London on 4 Jun.

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BBC Radio 6 Music Festival 2020 to take place in Camden
The BBC has announced that the 2020 edition of its 6 Music Festival will take place in Camden. Do they still have music in Camden? I guess they will between 6-8 Mar, when this whole shebang is due to take place. There'll be spoken word, poetry, Q&A sessions and DJ sets too. Larks!

"I'm delighted that 6 Music is coming to Camden in March next year - it's an area with so many musical stories to tell", says Head Of 6 Music Paul Rodgers. "I hope you'll join us there for our annual celebration of the best alternative music - or tune in to the live broadcasts across BBC 6 Music, BBC Sounds, BBC Four and BBC iPlayer".

Previously the event has taken place in Manchester, Tyneside, Bristol, Glasgow and Liverpool. Clearly the Beeb reckons it's built up enough of a buffer to finally hold it in London. Although not enough to actually mention directly that it's in London.

Anyway, tickets will go on sale on 24 Jan, with the line-up announced three days earlier on Lauren Laverne's 6 Music breakfast show.

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DEALS

Peermusic has signed musician and producer Davide Rossi to a worldwide publishing deal. "I'm really chuffed that Peermusic reached out to me and I'm looking forward to working with such a dynamic and wonderful team", he says.

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APPOINTMENTS

Claire McAuley has been promoted to the role of SVP Global Administration at music publisher Warner Chappell. She'll split her time between London and LA. Fancy. "That's how we'll write the next chapter in the innovation of publishing administration and be the market leader in this crucial area", she says. She said some other stuff before that, but it wouldn't be any fun if you knew what was going to happen.

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MEDIA

The NME has launched a new Australian version of its website, with its first NME Australia digital edition featuring a cover interview with Amyl And The Sniffers. The sixteen million unique users who access the NME website from down under each month will now get more content focussed on their own music scene. February's returning NME Awards will also include three Australia-specific prize categories.

Stormzy will give a reading from St Luke's Gospel on BBC One on Christmas Day. "Every year we look for people to bring the Christmas story alive", says BBC Studios exec producer Hugh Faupel. "This year we are delighted that Stormzy accepted the invitation to retell the timeless story of the first Christmas and hopefully bring it to a new audience". The programme will air at 11.50pm on Christmas Day.

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RELEASES

Sparks have released new single 'Please Don't Fuck Up My World'. Possibly a bit late.

Mxmtoon has released the video for 'Unspoken Words' from her latest album, 'The Masquerade'.

Roch has released the video for her latest single 'Via Media'.

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

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Shelter to benefit as Jarvis Cocker emerges a late contender for sweary Christmas number one
Rough Trade Records has confirmed that proceeds from any sales of Jarvis Cocker's 'Running The World' record this week will be donated to Shelter.

That announcement comes as a result of Cocker's 2006 track - with its festive chorus of "cunts are still running the world" - emerging as a late-in-the-day contender for Christmas number one. A turn of events mainly caused by a social media campaign that has started to gain momentum this week.

The track first enjoyed a new flurry of plays on the streaming services in the wake of last week's UK General Election, in which the Conservative Party inexplicably* won a sizable majority of seats in the House Of Commons. The campaign to get it to number one for Christmas time was then boosted in the traditional way - via a Facebook group.

The man behind that Facebook group, Michael Hall, tells Clash: "We started talking about the perfect song to soundtrack this coming Christmas - this came up, humorously of course, and we decided we'd start a Facebook group to see if anyone else was interested in doing something to show solidarity on the left after such a disastrous election result. The one thing all reasonable human beings can agree on is the sentiment of this song".

Obviously there is a political statement to be made by attempting to get this track to number one, similar to that campaign to boost sales of 'Ding! Dong! The Witch Is Dead' in the week after Margaret Thatcher died. But the announcement that Cocker will hand all the proceeds from this week's sales to Shelter has also given the venture a charitable dimension too.

However, there is another reason to back this particular Christmas number one campaign. Regular listeners to our Setlist podcast will be aware of the puerile joy it brings me to press play on a Christmas Number Ones playlist each Christmas Day and then wait for 'Killing In The Name' to come on. The year it tore through my family's post-lunch nap is one of the top three highlights of all the many festive seasons I have now lived through.

Rage Against The Machine topped the Christmas charts back in 2009, of course, because of another social media campaign, back when such things were still novel. That time the campaign was more about music industry politics, trying to stop 'X Factor' from always grabbing the number one spot in the UK's Christmas charts.

Now, I realise that this time round 'Running The World' is a real outsider, fighting against some very stronger sellers. And while the Official Charts Company has insisted it's now "a contender" for Christmas number one in a news story, it hasn't actually released any sales figures. But please let me have this. Please let this become a Christmas song. It's got a sort of festive lilt to it already. Stick some sleigh bells on there and you'd never know the difference. Except for all the swearing.

So, if everyone reading this now goes and buys the track on iTunes - or wherever - well, that still won't be nearly enough. But it'll be something. It'll be another step towards having Christmas Day made slightly more awkward forever more. Nothing would make me happier.

Sure, maybe you find it offensive for a variety of reasons. But I've seen social media, I know how much you like being offended. So this will improve your Christmas too. Buy it. Stream it. Then buy it and stream it again.

Get started with the lyric video here.

*Don't write in, I know you can explain it

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