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Katy Perry says Ninth Circuit should reject latest 'Dark Horse' song-theft claims on 'Stairway' grounds
Katy Perry's legal team have urged the Ninth Circuit appeals court in the US to keep in place a lower court ruling in the big song-theft legal battle over her track 'Dark Horse'. Doing otherwise, they add, would go against the appeal court's own judgement in the headline-grabbing 'Stairway To Heaven' case.

Marcus Gray accuses Katy Perry and her collaborators of ripping off his song 'Joyful Noise' on her 2013 hit. At first instance, he successfully convinced a jury that Perry had indeed infringed the copyright in his earlier song, and Perry and her songwriting pals were ordered to pay Gray and his team $2.8 million in damages.

However, the judge overseeing the original case - Christina Snyder - then overturned the jury's decision, having concluded that the Gray team's legal arguments failed as a matter of law. She wrote in her March 2020 judgement that "the uncontroverted evidence points to only one conclusion", that being that the musical element shared between 'Joyful Noise' and 'Dark Horse' – a repeated note melodic phrase – was not substantial enough to enjoy copyright protection.

Synder's March 2020 decision came shortly after the Ninth Circuit ruling on the 'Stairway To Heaven' song-theft case. Perry's team had used that latter judgement to bolster their case for why Snyder should overturn the jury's conclusion, stating that the Ninth Circuit's 'Stairway' decision provided "an extended defence of why copyright law doesn't cover 'common musical elements' and basic 'building blocks'", because doing so "might 'curtail the creation of new works'".

However, Gray - unsurprisingly - objected to Snyder interfering with the jury's conclusion in his original case. And he took his grievances to the Ninth Circuit.

In a legal filing last October his lawyers wrote: "The district court erroneously asserted that 'a pitch sequence ... is not entitled to copyright protection'. Perhaps the district court didn't understand that a pitch sequence is the technical term for a sequence of musical notes, ie a melody. Copyright most definitely protects original melodies, and especially distinctive eight-note melodies that repeat throughout a song".

Insisting that similar and indeed shorter melodic phrases have enjoyed copyright protection in the past, Gray's team added that "the music world is filled with examples of famous, distinctive and unquestionably original eight-note two-bar repeating melodies that are as simple, if not simpler, than the one at issue here".

The Perry side has now filed its response to the Ninth Circuit, arguing that Snyder was right to conclude that the elements found in both 'Joyful Noise' and 'Dark Horse' are not substantial enough for an infringement claim. And if the appeals court was to disagree, they go on, that would contradict the good old 'Stairway' ruling.

"As this court noted in its seminal decision [in] Skidmore v Led Zeppelin, it is critical to preserve for music creators the use of the basic building blocks of music, and not allow improper monopolisation to form the basis of an infringement claim", Team Perry write in their new filing. "This court recognised that music creators using commonplace elements are entitled to the same breathing room afforded to creators of other art forms".

They go on: "Here, the only expression that [Gray et al] allege 'Dark Horse' copies is the ostinato in 'Joyful Noise', which consists merely of two pitches that repeat - a C and B note - (four C's followed by two B's) on evenly spaced notes, in a sparse setting, played on a synthesiser. None of these elements are protectable individually or in combination".

"In Skidmore, this court held a chromatic scale is a common musical building block that 'consists of twelve pitches separated by a half step ... On a piano, this means playing the white and black keys in order from left to right'. The two pitches C and B at issue are simply two adjoining white keys on a piano. The use of those two pitches repeated on evenly spaced notes is as simplistic as music creation gets".

With all this in mind, they go on, Snyder was right to conclude that Team Gray had failed to prove infringement, meaning "the district court properly vacated the erroneous jury verdicts. The decision is soundly based on the admissions of [Gray et al] and the proper dividing line between commonplace and copyrightable expression".

The new legal filing also includes a bunch of other arguments from the Perry side, including previously made arguments about the damages awarded in the original jury trial being way too high.

Though it's the 'common musical elements' - and the wider impact of the 'Stairway' judgement - that are of most interest here. It remains to be seen what the Ninth Circuit says about this particular song-theft bust-up.

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Labels' lawsuit against stream-ripping sites FLVTO.biz and 2conv.com can proceed in Virginia, court rules
A federal court in Virginia has ruled that the copyright case being pursued by the major labels against stream-ripping sites FLVTO.biz and 2conv.com can proceed, despite the owner of said sites - Tofig Kurbanov - being a 20 hour flight away from the US state, and a twelve hour drive from his nearest US embassy. Kurbanov has been busy trying to have the case against him dismissed on jurisdiction grounds.

Stream-ripping services - websites that turn temporary streams into permanent downloads - have been at the top of the music industry's piracy gripe list for some time now. Numerous such sites have been targeted with legal action, or threats of legal action, by the labels and their trade bodies. Many of those targeted sites just shutdown once litigation looks like a very real prospect, but Kurbanov decided to fight the lawsuit filed against him by the US labels in a court in Virginia.

Initially he had some success with the argument that said court didn't have jurisdiction over the websites he ran entirely from Russia. First time around the district court dismissed the record industry's lawsuit on those grounds.

However, the labels then took the case to the Fourth Circuit appeals court where judges overturned the lower court ruling after concluding that there were various reasons why it could be deemed that FLVTO.biz and 2conv.com were actively trading in the US, even though the websites are formally based in Russia and don't require any sign-up from users.

That ruling sent the case back to the district court. Though not before Kurbanov had a go at appealing the appeal, asking the US Supreme Court to intervene on the jurisdiction point. However, the top court declined to get involved earlier this year.

Back in the district court, there was still one more jurisdiction point to be addressed. Although the Fourth Circuit had deemed that FLVTO.biz and 2conv.com were actively trading in the US, there remained one more issue that hadn't been considered by the district court or the appeals court that could still be grounds for dismissal.

In the words of the district court itself: "Acknowledging that the [lower] court did not reach the issue in its 22 Jan 2019 order, the Fourth Circuit remanded the case to the court with instructions to determinate the final requirement for personal jurisdiction: 'Whether the exercise of personal jurisdiction would be constitutionally reasonable'".

In a judgement published on Tuesday, judge Claude M Hilton considered whether making Kurbanov fight this litigation from his base in Russia was or was not "reasonable". Along the way he noted that copyright cases can be complex and require repeat in-court appearances. And Kurbanov "resides in Rostov-on-Don, Russia, more than 20 hours by place from the Eastern District of Virginia".

Moreover, the "defendant does not have a visa to visit the United States, and the nearest US embassy for him to obtain one is a twelve-hour drive from his home".

But don't be thinking all that geography is a get-out. Kurbanov has legal representation in the US, Hilton then noted, and those lawyers have made many filings on his behalf already. "Defendant appears to maintain satisfactory communication with his counsel", the judge added, and "there is nothing to indicate defence counsel could not adequately represent defendant's interest in the United States going forward".

Adding that the state of Virginia has an interest in resolving this dispute, and stressing again the Fourth Circuit's conclusion that Kurbanov was actively trading in the state, Hilton concluded: "Defendant has failed to present compelling reasons that litigating this case in the Eastern District of Virginia would unduly burden him". And so, "defendant Kurbanov is subject to the jurisdiction of this court in this matter".

Phew, we finally got there. And with the jurisdiction technicalities now dealt with, next the court can actually start considering the copyright infringement claims against FLVTO.biz and 2conv.com, and the various arguments Kurbanov's lawyers are sure to present as to why a stream-ripping operation cannot in itself be held liable for infringing copyright.

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Ice Cube sues "unscrupulous and predatory" Robinhood app for posting his photo on its website
Ice Cube has sued the company behind the recently newsworthy Robinhood stock-trading app. He accuses it of infringing his trademark and publicity rights by using his image and "catchphrase" on a post on its financial news service Robinhood Snacks.

The Robinhood app, of course, played a key role in the GameStop short squeeze moment earlier this year. That saw users of a Reddit group cause the share price in US gaming retailer GameStop to surge, mainly in a bid to screw over some Wall Street hedge funds which, some would argue, were in the process of screwing over GameStop. In the midst of all that, Robinhood restricted the trading of GameStop shares via its platform, leading to accusations the app company was practising "market manipulation" in order to protect the hedge funds.

But where does Ice Cube factor into all this? Well, earlier this month the GameStop Snacks website and app illustrated a story with a picture of the rapper, accompanied by the caption "Correct yourself before you wreck yourself", a play on the lyric "You better check yo self before you wreck yo self" from Ice Cube's 1993 track 'Check Yo Self'.

And he is not happy at all about appearing on what he argues is basically a promotional site that exists to sell the financial services offered by the wider Robinhood business.

And why wouldn't he want to be associated with the wider Robinhood business? Because, his lawyers argue in a lawsuit filed yesterday, "Robinhood is an unscrupulous and predatory conglomerate that professes to be a financial services company for the everyday person. In truth, Robinhood is a wolf in sheep's clothing. It is the archetypal example of an amoral corporation that places profits over people". Yeah, don't feel the need to hold back.

"Robinhood's corporate malfeasance is no secret. Over the course of its brief existence, Robinhood has been: (a) the subject of investigations too numerous to list, but currently by not less than five separate governmental bodies; (b) fined several times by federal regulatory agencies, including most recently a $65 million settlement with the SEC in December 2020; and (c) named as a defendant in hundreds of lawsuits, including currently over 50 class action lawsuits".

"No wonder", they go on. "In 2020 alone, it was widely reported that Robinhood's stock trading app – which depends on trigger-finger immediacy – went down not less than 90 separate times. Robinhood is selling a garbage trading platform to the American public and laughing all the way to the bank".

"In a cynical effort to appeal to a young demographic, Robinhood has engaged celebrity endorsers such as Jay-Z, Nas and Jared Leto to endorse its products and services", the lawsuit then states. "However, in an act of unmitigated gall and transparent retribution, Robinhood and its subsidiary have now used the image and likeness of Ice Cube – without his permission – to promote Robinhood's terrible products and services. Robinhood has picked on the wrong man this time".

"On 8 Mar 2021", it then explains, "defendants impermissibly used Ice Cube's image and likeness in connection with an advertisement for Robinhood's financial services and products on the 'Robinhood Snacks' website and app".

"The advertisement creates the false impression that Ice Cube supports and endorses Robinhood's products and services. This is especially true as the advertisement (mis)quotes the most well-known lyric from Ice Cube's hit single 'Check Yo Self'. In truth, Ice Cube absolutely does not, and never would, support Robinhood's products and services".

Those are just the edited highlights of a lengthy and forthright lawsuit. But basically, Ice Cube argues that Robinhood breached his rights under US and Californian law by using his picture for the piece on the Robinhood Snacks site.

For its part, the Robinhood company insists that it properly licensed its use of the Ice Cube photo via the agency that controls the copyright in it. And that Robinhood Snacks is an editorial service, meaning the photo was used for editorial not advertising, and therefore the company did not make use of the rapper's image for promotional purposes.

It remains to be seen if the court accepts that defence.

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Sony acquires the songs catalogue of Paul Simon
Another one for fans of mega-bucks rights acquisition deals now. And that's all of you, right? Who doesn't love a mega-bucks rights acquisition deal? Do you, like me, often lie awake at night fearing that one day very soon every song and songwriter famous enough to warrant a mega-bucks rights acquisition deal will have been involved in a mega-bucks rights acquisition deal, and with all those rights acquired via a mega-bucks deal there'll be no mega-bucks rights acquisition deals left to enjoy?

Maybe then the companies behind these mega-bucks rights acquisition deals will start acquiring each other through a series of super-sized mega-bucks rights acquisition deals, and all the joy we collectively experience from these mega-bucks rights acquisition deals will continue for at least a few more months. That would be mega. We can only hope, people. We can only hope.

Anyway, time for today's mega-bucks rights acquisition deal. And today there's none of those new-fangled mega-bucks rights acquisition vehicles involved. No, today's mega-bucks rights acquisition deal comes from Sony Music Publishing. The biggest music publisher in the world reminding all those mega-bucks rights acquisition up-starts that it can bid the big bucks too. Yeah, OK, Universal got in first and bought the Bob Dylan catalogue, but fuck you Universal and all those pesky mega-bucks rights acquisition up-starts, because Sony's only gone and gotten itself the Paul Simon catalogue.

"Paul Simon is a masterful, once-in-a-lifetime songwriter whose remarkable body of work has generated an enduring influence on our culture and consciousness", says Sony Music Publishing boss Jon Platt. "From Simon And Garfunkel standards like 'Bridge Over Troubled Water' to solo classics such as 'Graceland', Paul Simon's music resonates deeply as a cultural touchstone for people all over the world. To represent his indelible songs is an incredible honour for Sony Music Publishing, so with tremendous pride, I welcome Paul to our family!"

Simon himself, hiding behind the mountain of cash he'll have received as part of this deal, adds: "I'm pleased to have Sony Music Publishing be the custodian of my songs for the coming decades". Noting that he began his music career with Columbia Records - a CBS-owned label at the time, but now part of Sony Music - he goes on: "It feels like a natural extension to be working with the publishing side as well".

Lovely stuff. It might seem like Sony is rather late to the current mega-bucks rights acquisition party, which has been more dominated to date by those aforementioned up-starts, like Round Hill, Iconic Artists and - especially - Hipgnosis. But in its statement yesterday Sony was keen to remind everyone that, as the biggest music publisher in the world, it already controls and/or represents the song catalogues of Michael Jackson, Stevie Wonder, Queen, Leonard Cohen, Carole King and the mother-fucking Beatles. So fuck off up-starts.

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FAC, MPA, MU and Sentric Music join Music Copyright Explained debate next Tuesday
CMU Insights is next week presenting three free panel discussions to mark the recent launch of the 'Music Copyright Explained' guide with the UK's Intellectual Property Office. The panels will look at music rights from the perspective of music-makers, users of music, and music educators.

The music copyright experts joining the first discussion at 5pm on Tuesday have now been announced. That session will consider the key challenges and opportunities facing music-makers and music copyright owners in 2021, identifying and explaining the big talking points of the moment.

Joining the conversation will be music-maker and FAC board member Roxanne de Bastion; the Music Publishers Association's General Manager and Chief Policy Officer Lucie Caswell; Musicians' Union Deputy General Secretary Naomi Pohl; and Sentric Music's Global Director Of Music Services Simon Pursehouse.

Wednesday's session will look at the challenges faced by creators, entrepreneurs and businesses looking to license music, while on Thursday we'll look at what early-career music-makers need to know about copyright, and how the music industry and music educators might go about better sharing that information.

You can sign up for free places at all or any of these panel discussions here.

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Women dominate BRIT nominations (a bit)
The nominations for this year's BRIT Awards are out and they are, by at least one measure, dominated by women.

Three of the four most nominated acts - Arlo Parks, Celeste and Dua Lipa - are women, with Young T & Bugsey bringing up the tally for the blokes. All have three nominations apiece. And in the Best British Album award, one of the big prizes of the night, J Hus is the only guy to be seen.

So that's a big improvement on 2020, where women were conspicuously absent from the nominations, with none at all in the album category.

Hooray for diversity then! Now, let's all move on without looking at any of the other categories. OK? Oh, alright then, I suppose we all came here today to review all the categories for BRITs 2021, so we should probably give them all a mention.

It was reported recently, of course, that BRITs organisers had decided against ditching its gendered categories this year. Despite complaints that this left out the growing number of non-binary artists, there were fears that making all award categories mixed-gender would mean that women would get no nominations at all. And the 2020 BRIT shortlists suggested that those fears were well-founded.

But look at the Best British Album category this year! It's a testament to the fact that the BRITs voting academy is now fully capable of recognising when most of the biggest and best albums of the year come from female artists.

Although what's going on with the other non-gendered awards? Well, they seem to suggest that women don't make good singles, aren't really very good at being in groups, and just don't tend to be based abroad.

Dua Lipa is one of three women in the Best British Single category - and the only one not billed second in a collaboration with a man - the others being Gracey (with 220 Kid) and Raye (with Regard). In the group categories, Little Mix are the only British women up for a prize, and Haim the only international women.

There are general signs of positive change though. Arlo Parks and Celeste both appear in the Best British Album and Breakthrough Artist categories. And last year Celeste beat two other female contenders to take the Rising Star Award, while this year's Rising Star shortlist was two thirds female.

So that suggests that there are more female artists coming through who are being properly acknowledged and will begin to feature more widely across any award nominations in the future.

Fingers crossed, anyway. Then maybe we can deal with the ridiculousness of organising awards by gender. And once that's done, we can focus on other challenges, like does it really make sense to be asking if Biffy Clyro are better than Little Mix? Though once you start asking questions like that, then you might have to ask if it's really worth giving out awards at all.

Anyway, stop thinking about that, here's the thrice nominated Arlo Parks with some reassuring words: "To be nominated for three BRIT Awards at 20 years old as an independent artist is something that exceeds my wildest dreams. I genuinely don't have the words to describe how grateful I am. This year has been difficult to say the least but art has been holding us together in some way and I'm excited to be part of this celebration of British music".

And here are all the nominations...

Female Solo Artist: Arlo Parks, Celeste, Dua Lipa, Jessie Ware, Lianne La Havas

Male Solo Artist: AJ Tracey, Headie One, J Hu,s Joel Corry, Yungblud

British Group: Bicep, Biffy Clyro, Little Mix, The 1975, Young T & Bugsey

Breakthrough Artist: Arlo Parks, Bicep, Celeste, Joel Corry, Young T & Bugsey

British Single: 220 Kid & Gracey - Don't Need Love, Aitch & AJ Tracey feat Tay Keith - Rain, Dua Lipa - Physical, Harry Styles - Watermelon Sugar, Headie One feat AJ Tracey & Stormzy - Ain't It Different, Joel Corry feat MNEK - Head & Heart, Nathan Dawe feat KSI - Lighter, Regard & Raye - Secrets, S1mba feat DTG - Rover, Young T & Bugsey feat Headie One - Don't Rush

British Album: Arlo Parks - Collapsed In Sunbeams, Celeste - Not Your Muse, Dua Lipa - Future Nostalgia, J Hus - Big Conspiracy, Jessie Ware - What's Your Pleasure?

International Female Solo Artist: Ariana Grande, Billie Eilish, Cardi B, Miley Cyrus, Taylor Swift

International Male Solo Artist: Bruce Springsteen, Burna Boy, Childish Gambino, Tame Impala, The Weeknd

International Group: BTS, Fontaines DC, Foo Fighters, Haim, Run The Jewels

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DEALS

Round Hill Music has acquired the back catalogue, neighbouring rights and producer royalties of country songwriter Zach Crowell. "As a songwriter and producer Zach is one of country music's true contemporary icons", says Round Hill CEO Josh Gruss. "His originality and creative genius alongside his amazing track record of success speaks for itself and his star will only continue to shine brighter".

Rock clubnight This Feeling has announced that it is launching a record label, This Feeling Records, in partnership with Warner's label services division ADA. The label will be run by This Feeling founder Mikey Jonns with Katie Gwyther of Fear PR. "There are a lot of brilliant new bands struggling for exposure, and This Feeling has always been about providing a platform for emerging young talent", they say. "We're excited to be able to go a step further with This Feeling Records to offer acts a label with integrity and passion. The last year was disastrous for the music and arts industry and so we're aiming to be a lifeline for new talent to be able to prosper".

More from Warner's ADA business, the US division of which has partnered with artist managers Billy Mann and Benton James to launch new label Icons+Giants. "On behalf of everyone at ADA and Warner Music, we welcome Billy and Benton and the Icons+Giants team to the ADA family", says Eliah Seton, President of Independent Music & Creator Services at Warner Music. "Billy and Benton are defining what comes next in music – they are on the cutting edge of this business, and we are so proud to be their partner and for ADA to be their home".

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APPOINTMENTS

Universal Music's recently rebranded services division Virgin Music Label & Artist Services has launched in Australia, led by Managing Director Timothy Janes. "We are excited to form a new integral part of UMG's new global distribution and services division", he says. "Our team in Australia has a genuine passion for partnering with and servicing the best and most innovative independent artists and labels from around the world. With the new team in place, we are energised for our biggest year yet, and I cannot wait for this new chapter to begin".

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LABELS & PUBLISHERS

DIY music distribution firm UnitedMasters has raised itself $50 million in new finance, with the latest investment round led by some little know tech outfit called Apple. The Apple alliance, by the way, also includes "a strategic partnership ... which will create dramatic new opportunities for UnitedMasters artists". Woo! We love a good strategic partnership.

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MANAGEMENT & FUNDING

PPL, the BRIT Awards and Hipgnosis have donated to round four of the MMF's ReBuild Fund, which provides emergency support to music management businesses that have been adversely impacted by COVID-19 but excluded from government assistance packages. "To date we have supported 77 music management businesses through the fund who were unable to access the government's [freelancer support] scheme or furlough", says MMF boss Annabella Coldrick. "With this fourth round of funding, we'll be able to spread that support even wider". Find out more and apply here.

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RELEASES

Primal Scream's Bobby Gillespie and Savages' Jehnny Beth have recorded a new album together, titled 'Utopian Ashes' and set for release on 2 Jul. "In the same way you create characters for a novel, we've created characters here", says Beth. "But you put yourself in it, because you're trying to understand the human situation. The singing has to be authentic. That's all that matters". Here's first single, 'Remember We Were Lovers'.

Garbage have announced that they will release new album 'No Gods No Masters' on 11 Jun. "This is our seventh record, the significant numerology of which affected the DNA of its content: the seven virtues, the seven sorrows, and the seven deadly sins", says vocalist Shirley Manson. "It was our way of trying to make sense of how fucking nuts the world is and the astounding chaos we find ourselves in. It's the record we felt that we had to make at this time". Here's new single 'The Men Who Run The World'.

Chai have released new single 'Nobody Knows We Are Fun'. Their new album, 'Wink', is out on 21 May through Sub Pop.

MDNR has teamed up with Empress Of for new single 'Love In Reverse'.

LoneLady has released new single '(There Is) No Logic'. "It just really encapsulates so many cool electro sounds and even some R&B vocal stylings", she says. "It was fun sampling 'do' and 'dah' vocals and running them through the sequencer to get that choppy-collaged effect, definitely a Cabaret Voltaire influence there. The technology gods were happy that day and it all came together in a really fresh and immediate way".

Avawaves (formerly Ava) have released new single 'Chrysalis'. "Ultimately this song is about transformation, about stepping into the light after a period of darkness and letting it drive us forward into the next phase of life in general, and of Avawave musically", they say.

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

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Glastonbury or Eurovision? The nation decides
When Glastonbury announced its big 22 May livestream event yesterday, you probably thought one of three things. Perhaps you thought, "Why aren't they doing it on actual Glastonbury weekend?" Or maybe you pondered, "Isn't that the first weekend after venues in England can re-open for socially distanced shows, isn't that an odd moment to be encouraging music fans to stay at home?"

Or maybe, like me, you actually screamed, "Why are they doing it on Eurovision night?!" I mean, what an obvious scheduling disaster. Noting this issue, Eurovision's official Twitter account wrote in response to Glastonbury's announcement: "We're a bit busy on that night".

It's alright though, there is a solution. Because the Glastonbury livestream will be livestreaming on four separate timelines to account for global timezones. "One of our timed streams begins just after Eurovision finishes", tweeted Glastonbury. "We fully advocate people watching both!"

So that's all fine then. Although, after watching four hours of Eurovision - scoring and all - I'm not sure that many people are going to be all that keen to sit up watching a five hour Glastonbury livestream over night. Not least because people plucking guitars in a field might seem a bit drab in comparison.

The good news is, though, Coldplay are headlining the Glastonbury show, so you'll be able to skip that bit and get to bed by about 4am. Other performers include Damon Albarn, Jorja Smith, Haim, Wolf Alice and Michael Kiwanuka.

There is one other possible solution. While the Glastonbury show will not be able to watch on demand after the fact, you could always watch the Eurovision final on iPlayer the next day. It's not the same though. It's just not the same.

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