Sony confirms it will pay out royalties on unrecouped publishing deals as well
Sony Music has extended its recent new policy regarding unrecouped balances from its recordings business to its publishing business. It means that songwriters who signed to the major prior to 2000 and who have never recouped their original advances will now earn royalties from the exploitation of their songs.

Sony announced that it was applying that policy on the recordings side of its business last month. It means that artists who signed their deals with a Sony label in the 20th century will now earn royalties whenever their music is streamed, even if they never fully paid back any advances they received and other recoupable costs that were incurred by the label prior to 2000.

That many artists are still paying off recoupable balances decades after a record has been released came up during the recent Parliamentary inquiry into the economics of streaming, because it means that a heritage artist whose catalogue has been revitalised by streaming may not be receiving any new payments, because the royalties they are due are paying off old debts.

Some indies, like the Beggars Group, already write off unrecouped balances after a period of time. Other labels, including the majors, were encouraged to follow suit during Parliament's inquiry, with some pointing out that - because conventional record contracts only pay an artist a minority share of any money generated by their recordings - it is common for a label to go into profit on a deal long before the artist recoups any advance and recoupable costs.

Publishing deals are generally much more generous to songwriters than record deals are to artists, with the writer getting a majority of any monies generated by their songs, making it easier to pay off advances. Though at least 50% of any money generated by the performing rights in a song is actually paid directly to a songwriter via the collective licensing system, even when there is an advance to be recouped. In the short-term that's obviously to the writer's benefit, though it does mean it takes longer for advances to be recouped.

It's also worth noting that publishing deals in the 20th century - although still more generous to songwriters than record deals were to artists - were not as writer-friendly as modern publishing deals.

Over the years the share of the money allocated to songwriters on the average deal has gone up - plus life-of-copyright deals, via which a publisher has control over a writer's songs for as long as the copyright in them exists, have pretty much disappeared, certainly in Anglo-American markets. This means a publisher will now only have control over a writer's songs for a set time period.

But for writers who signed life-of-copyright deals in the 20th century that paid lower songwriter royalties, this latest move by Sony could result in new monies flowing in each year. The new policy will also be applied retrospectively to the start of 2021.

Announcing the new policy to songwriters yesterday, Sony Music Publishing boss Jon Platt wrote in a memo: "Today, I am pleased to share that we are launching Songwriters Forward, an initiative designed to expand our support of careers at every stage. Under Songwriters Forward, we are introducing the Legacy Unrecouped Balance Program to qualifying Sony Music Publishing songwriters. We have been working for some time to develop this plan, which complements Sony Music's recently announced Artists Forward".

"We will no longer apply existing unrecouped balances to earnings for eligible songwriters signed prior to the year 2000 who have not received advances since, and this applies retroactively to 1 Jan 2021", he then explained. "Qualifying songwriters will be notified separately in the coming weeks".

Name-checking other recent Sony Music Publishing innovations around royalty reporting and payments, he went on: "These efforts are a continuation of our songwriter-first approach and accompany our ongoing investment in administration modernisation, including new SCORE data and analytics upgrades, Cash Out payment options, and real-time foreign royalty processing".

"With historic policy changes across our business, we are taking important steps toward creating a more equitable, transparent music industry for songwriters and all creators. On behalf of our teams around the world, it is our privilege to represent you as we begin this next chapter with Songwriters Forward".

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Damon Dash launches Roc-A-Fella NFT auction (again)
Despite the ongoing legal battle surrounding Damon Dash's right to sell his stake in the Roc-A-Fella Records business via an NFT auction, Damon Dash has launched an NFT auction via which he will sell his stake in the Roc-A-Fella Records business.

With bidding set to open on Friday, Dash yesterday opened his own NFT "gallery" through which he will sell his stake in Roc-A-Fella, as well as a painting called 'The Yellow Elephant' by his fiancée Raquel M Horn.

Dash's attempts to sell off his share of Roc-A-Fella have already been blocked once by one of the label's other co-founders and shareholders, that being Jay-Z. Legal action accused Dash of illegally attempting to sell the recording rights to Jay-Z's debut album 'Reasonable Doubt'. But Dash countered that he was merely trying to sell his share of the whole company, which he is allowed to do.

In a subsequent countersuit, Dash then accused Jay-Z of "unjust enrichment" and "breach of fiduciary duty" via the "unauthorised theft of Roc-A-Fella Records's streaming rights in the 'Reasonable Doubt' album by defendant's transferring of these rights, without authorisation, to S Carter Enterprises LLC, which is solely owned by defendant".

Expanding on all that in a new interview with Variety, Dash says: "My main question has forever been, 'why doesn't he want me to sell my third?' Then we look under the hood, and it's 'oh, snap' - there's this change in the copyright that we know Roc-A-Fella Records held".

"We never saw any changes on our ledgers. When he tried to sell me the company before, I asked him to send me over the ledgers", he goes on. "There was no money of representation through Spotify or any streaming services. So where is any of the money going now? And who authorised any changes to its copyright?"

"I didn't", he adds. "When they sent me the books is when they sent me their offer to buy me out... I just want some answers to some questions. I'm the boss of Roc-A-Fella Inc. Everybody knows I am the CEO, and that Jay was the artist. That was our jobs. That's a known fact".

Prior to all that, a court in New York issued a temporary restraining order blocking Dash from launching a new NFT auction in relation to 'Reasonable Doubt'. Last Friday, Dash failed in an attempt to get his own restraining order, blocking a meeting between Jay-Z and the label's other co-owner, Kareem Burke, seemingly to discuss changing some of the company's official policies.

With the legal action still being knocked back and forth, Dash is seemingly keen to get going with his NFT auction before the lawyers can get moving again. In a statement on his new gallery website, Dash says that he is "fighting for the independence of artists" and "fighting for good taste".

"I don't think an artist should have to compromise or give away everything that makes them special to make a dollar or be seen", he says of the NFT website and his initial auctions. "What I love about this is that the artist still gets bread when they sell their art, then it resells. If I come into an industry, I want to change it for the better. The thing about the NFT world is I get to empower artists. I get to be the artist. I get to be Billy Pablo III".

Who is Billy Pablo III? Well, Damon Dash. But that's probably too confusing to get into at the moment. The point is, he's empowered. Empowered to sell his share of a company he founded.

Dash also spoke to Variety about the confusion over whether he was selling the rights in 'Reasonable Doubt' in their entirety, or just his stake in the Roc-A-Fella company.

Dash says: "They knew that I wasn't trying to sell the whole company, so why say it? It was a very intentional thing for them to do, so that people would think that they cannot buy anything that I was selling – even that which is mine to sell. Their efforts were all to muddy the waters, to discount, discredit, and devalue a property that I own".

Even if he is selling a stake in Roc-A-Fella rather than the rights to 'Reasonable Doubt', the Jay-Z album is basically the label's only asset, so they are in some ways the same thing, even if Dash is clear that only a third of the business is up for grabs. And it has to be said, the blurb and accompanying video about the new auction do both focus heavily on 'Reasonable Doubt'.

"Damon Dash is selling his one-third interest in Roc-A-Fella Inc, which owns 'Reasonable Doubt', Jay-Z's first album", the website announces. "The highest bidder will also receive the commemorative NFT 'It's The Roc' (2021) presenting certificate of ownership. Own a moment in time when 'Reasonable Doubt' changed hip hop culture. The album that influenced and touched so many lives".

Last time Dash launched this auction he used a third party site, which then cancelled the sale following a challenge by Jay-Z. The launch of his own NFT auction site maybe an effort by Dash to push through the sale this time by ignoring any such future demands. That said, it seems unlikely that there will be no new legal moves by Jay-Z to stop this latest auction. We shall see, I guess.

Watch a video trailer for the auction here.

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Sex Pistols are probably "gone for good" following sync deal bust up, Paul Cook confirms
Steve Jones and Paul Cook of the Sex Pistols previously chose not to enforce a 1988 band agreement in a bid to maintain a better relationship with former bandmate John Lydon, the outfit having reunited at various points over the years of course. However, now Jones and Cook have gone legal over said agreement, the band is probably "gone for good". These were the most recent revelations in the ongoing Sex Pistols court case in the UK high court.

Lydon is currently blocking a sync deal that would allow the band's music to be used in 'Pistol', a new Danny Boyle directed TV series based on Jones' memoir 'Lonely Boy: Tales Of A Sex Pistol'. However, Jones and Cooke argue that under a 1988 band agreement a sync deal can be issued providing a majority of the band's members support it. And, they add, Glen Matlock and the estate of Sid Vicious are happy with their music being used in the 'Pistol' show.

Giving testimony last week, Jones explained how Lydon had previously blocked the use of the band's track 'God Save The Queen' in an episode of the Netflix series 'The Crown'. He and Cook considered enforcing the 1988 agreement that time too, Jones revealed, however there simply wasn't time to go through that process and meet the deadline of the producers of the royal family drama series.

Speaking in court yesterday, Cook added that he and his bandmates had "always wanted to work harmoniously", and had, in the past, feared that enforcing the 1988 agreement would result in a falling out with Lydon.

According to the Evening Standard, Cook observed that Lydon "can be a difficult character and always likes to feel that he has control". Which meant that, if they ever relied on the 1988 agreement, "I thought that our relationship with John would get worse".

He went on: "Maybe Steve and I have been too nice to John over the years in trying to maintain good relations and ... we should have been tougher".

As for the current dispute, and the decision to go legal this time, he added: "I am unhappy that he would behave like this over an important personal project for Steve, particularly as we have always backed his personal projects".

Lydon's lawyer Mark Cunningham then asked if, by pursuing this litigation, the chances of any future collaborations between the former bandmates were now very slim indeed, meaning the Sex Pistols were pretty much "gone for good". Cook replied "probably".

Both Jones and Cook have also denied that they tried to conceal the TV project from Lydon. When Lydon first criticised the show in a media interview earlier this year, the producers of 'Pistol' insisted that they'd tried to contact the musician via his management but that "direct contact was declined".

Meanwhile, in court yesterday Cook said that Lydon had had "plenty of time to get on board" with the 'Pistol' production.

The case continues.

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Taylor Swift seeks summary judgement in her ongoing Shake It Off lyric-theft dispute
Taylor Swift is having another go at ending a long running lyric-theft legal battle over her 2014 hit 'Shake It Off', seeking summary judgement in her favour. Swift's legal reps argue that, through the discovery process, their client's song-theft accusers - Sean Hall and Nathan Butler - have "admitted away" their claim that 'Shake It Off' infringes the copyright in their 2001 song 'Playas Gon Play'.

Hall and Butler sued Swift over the lyrical similarities between 'Playas Gon Play' and 'Shake It Off'. The former contains the line "the playas gon play/them haters gonna hate". In the latter, of course, Swift sings "the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate".

In 2018, a US district court judge dismissed Hall and Butler's lawsuit on the basis that the fact of players playing and haters hating was all too "banal" for the duo's 2001 lyric to enjoy copyright protection in isolation. However, Hall and Butler took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion.

With the case back in the district court, last year Team Swift tried to have the matter dismissed, basically by arguing that because the similar lyrics in the two songs are not identical, what they actually share is an idea not an expression. And copyright only protects expressions of ideas, not ideas themselves. However, the judge overseeing the dispute - possibly cautious because of the Ninth Circuit's previous intervention - declined to throw the case out of court for a second time.

In a new legal filing, Swift's lawyers argue that further evidence gathered and discussion undertaken during the discovery phase of the ongoing dispute has only strengthened their case and that, as a result, the judge should now issue a summary judgement in their client's favour.

They write: "The parties have completed expert disclosures and discovery as to the 'extrinsic test' and plaintiffs and their sole expert have admitted away plaintiffs' claim that the song 'Shake It Off' infringes the copyright in the song 'Playas Gon Play'".

The 'extrinsic test' is a principle used in copyright cases in courts sitting under the Ninth Circuit whereby, when two works are assessed for similarity, only those elements of each work that are specifically protected by copyright are considered, with unprotectable aspects first filtered out.

The new legal filing continues: "Plaintiffs admit that 'Playas' and 'Shake It Off' are very different in their music and also their lyrics. 'Playas' is a love song in which 'so-called friends' try to break up the singer and her romantic partner, while in 'Shake It Off' the singer recounts that people criticise her but she shakes it off and finds comfort in music".

The only similarity, they then go on, is the use of two similar 'tautophrases', which, in case you wondered, are phrases that repeat an idea by repeating the same words.

"Plaintiffs have narrowly limited their claim", the lawyers add, "to their contention that 'Shake It Off' copies 'Playas' use of the phrases 'players gonna play' and 'haters gonna hate' as the first two tautological phrases in a series of four tautophrases that supposedly convey the idea that the world is full of untrustworthy people we should ignore".

"However, plaintiffs and their expert admit that 'players gonna play' and 'haters gonna hate' are public domain and that 'Playas' and 'Shake It Off' vary those unprotected phrases in different ways".

"They also admit that although 'Shake It Off' includes a third and fourth tautophrase, they are different phrases than 'Playas' tautophrases. Also, 'Playas' has an unbroken sequence of four, bare tautophrases, but 'Shake It Off' follows its two variations of the preexisting 'players gonna play' and 'haters gonna hate' phrases with the lyrics, 'Baby, I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off'".

"As a result of the undisputed facts", they then argue, "plaintiffs' claim is merely that 'Shake It Off' copies the unprotected idea of including four tautophrases in a chorus, with different public domain tautophrases used differently. Applying this Circuit's 'extrinsic test' confirms that 'Shake It Off' and 'Playas' are not substantially similar and, instead, are very different".

"As a result, plaintiffs' claim fails both because the songs are not substantially similar in protected expression and also because they lack substantial similarities probative of copying".

Did you follow all that? "The extrinsic test establishes there is no genuine dispute that, whether analysed as musical works, as literary works, or under a selection-and-arrangement theory, 'Shake It Off' is not substantially similar in protected expression to 'Playas'", the lawyers conclude, before "respectfully" requesting a summary judgement in their favour.

It remains to be seen how the judge now responds.

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Warner Music acquires Doug Morris's 12Tone Music
Warner Music has acquired the assets of 12Tone Music - the record company launched in 2018 by US record industry veteran Doug Morris, who began his major label career at Warner in the 1970s before going on to hold the top job at both Universal Music and Sony Music.

"12Tone is home to some of today's most compelling artists and innovative label partners, encompassing emerging and established talent that crosses genres and generations", says CEO of Warner Music Group's recorded music division, Max Lousada. "We're very pleased that Doug has chosen Warner as the team to continue nurturing the amazing artists that 12Tone has signed and developed over the past three years".

Morris adds: "After leading all three major music companies, I loved returning to my indie roots by starting 12Tone. I want to thank Steve Bartels and the 12Tone team for being such a big part of the picture. This three-year run has been a lot of fun. I look forward to remaining fully engaged with the WMG team, who are outstanding professionals. A special thanks to Max – I know the music couldn't be in better hands".

The launch of 12Tone came after Morris stepped down as CEO of Sony Music in 2017. Already distributed by Warner's ADA label services division, artists working with the label include Anderson .Paak, 88rising, Illenium and more. It also released Dolly Parton's Christmas album, 'A Holly Dolly Christmas', last year.

Morris will continue to work with the label for the time being, with the deal expected to close later this month.

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HMV planning to open ten new shops, including new London flagship store
Currently marking its centenary year, HMV is set to open ten new high street shops, including a new flagship store in London, according to current owner Doug Putman.

"Our online business - very similar to most retailers - doubled, tripled throughout the pandemic", Putmen tells the BBC. "[But] it still doesn't obviously make up for the loss of 100-plus stores" which were forced to close at various points during lockdown.

"People obviously love going out shopping, they like touching and feeling, and that's something that online is not going to replace", he goes on. "I do believe ... you're going to get more people trying to open up different stores and have different ideas. I'm still very optimistic on the [HMV] business, and business as a whole on the high street. I still think the high street is just something so special".

Speaking to The Guardian, he added: "One thing I hope we will take from this is that everyone had been kind of sad [since the pandemic began]. Outside of the illness, when you look at people's lives a big part of that is walking outside and going to the high street and doing some shopping. When you see bookstores and coffee shops and HMVs closed and everything online it is not as much fun as it used to be. Hopefully people have seen this world where everything is Amazon and it is not all that great".

When the owner of the Canadian HMV business and record store chain Sunrise Records bought HMV UK out of administration in 2019, he managed to save 100 stores. However, the 27 that closed down during that change of ownership included its original Oxford Street shop. The retail firm's previous owners had actually moved the company's flagship London store back into that unit in 2015, having given up a larger space elsewhere in the capital as part of downsizing efforts.

Now Putman tells the BBC that the company is taking a "very hard look" at possible sites for a new flagship store in London. However, he also adds that the company will not be making "any long-term deals", due to ongoing uncertainty in the retail market - not least because businesses are currently operating on lower business rates due to the pandemic, with that discount in place until April next year, and it's not clear how much rates will increase by after that.

A spokesperson for HMV clarified: "We're continuing to expand with new sites, looking at a combination of factors before making a decision. The upcoming business rates review will no doubt have an impact, not only on HMV, but on the wider British high street. In some locations, even with good deals from landlords, rates make stores unviable".

BPI stats earlier this year showed that physical format music sales continued to decline in 2020, possibly in part because of the COVID-caused shutdown of the high street. The overall drop was only 2.6% though, with physical sales still accounting for nearly a fifth of UK record industry revenues.

Physical declines in recent years have been lessened by the ongoing vinyl revival, of course. In 2020 a 30.5% increase in vinyl sales helped to counter the 18.5% decline in CD sales. Vinyl revenues are now on course to overtake CD income in the UK for the first time since the late 1980s.

Also as part of its centenary celebrations, HMV has announced that Ed Sheeran will play a special birthday show for 700 fans at the HMV Empire venue in Coventry next month.

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DEALS

Spanish rights management organisation Unison has announced a partnership with SADIA, the song rights collecting society in Angola, which will see the former rep the latter's works in the digital domain across Europe. Earlier this month Unison announced another deal with Brazilian music rights agency Smart Rights. Under that deal, Unison will rep Smart Rights clients in Europe, and Smart Rights will provide services to Unison clients in Brazil.

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RELEASES

Kanye West has confirmed that his new album 'Donda' will be released this Friday, in a video posted to Instagram. It also previews a clip of new track 'No Child Left Behind'. For those that can't make it to Atlanta's Mercedes-Benz Stadium for tomorrow's listening event, it will also be livestreaming on Apple Music.

Lil Nas X has released a "prelude" video for his new Kanye West-produced single 'Industry Baby', which sees him going to court over his involvement with those Satan Shoes.

Brittany Howard has released a new version of her song 'Stay High', featuring Childish Gambino. The track is taken from new album 'Jaime Reimagined', which also includes collaborations with Michael Kiwanuka, Bon Iver and more, and which is out on Friday.

Ólafur Arnalds has released new single 'Saudade', taken from new Vincent Moon-directed short film 'When We Are Born'. Arnalds will play the Hammersmith Apollo in London 24 Sep.

Low have released new single 'Disappearing'. Their new album, 'Hey What', is out on 10 Sep. They've also announced UK and Ireland tour dates in April next year.

Nite Jewel has released new single 'Before I Go'. Her new album, 'No Sun', is out on 27 Aug.

Connie Constance has released 'Prim & Propa', the title track of her forthcoming new EP. She's also set to play UK tour dates in September.

Attawalpa has released the Lena Dunham-directed video for his new single, 'Tucked In Tight'. His new EP 'Patterns' is out now.

Mono have announced that they will release their eleventh album, 'Pilgrimage Of The Soul', on 17 Sep. Here's first single 'Riptide'.

Fulu Miziki has released new single 'OK Sete Bien'. His new EP, 'Ngbaka', will be out through Moshi Moshi on 12 Nov.

Joon has released the video for her single 'Whisper'. Her debut album, 'Dream Again', is out now.

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GIGS & TOURS

Nick Cave and Warren Ellis will tour as a duo in September and October, including two shows at the Royal Albert Hall in London on 6-7 Oct. The Bad Seeds duo released an album together, titled 'Carnage', earlier this year.

A show planned to take place at Glastonbury Festival site Worthy Farm in September has been cancelled. In a post on Instagram, organiser Emily Eavis said that they have "decided not to go ahead with the September gig idea for a number of reasons". You will still be able to go and camp at the farm this summer though.

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AWARDS

GRM Daily's Rated Awards will return on 16 Sep with a virtual ceremony aired on YouTube. AJ Tracey and Headie One lead the nominations with four noms each, in the Male Artist, Track Of The Year, Video Of The Year and Album Of The Year categories. You can vote here now.

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

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Taylor Swift holds Fearless re-recording back from awards to give Evermore a chance
Taylor Swift will not be putting forward the re-recorded version of her 'Fearless' album for the Grammys and Country Music Association Awards this year. Why? Well, she just got so many bloody awards for that collection of songs already. Plus, she's released so many albums recently, she doesn't want to dilute her votes by putting too many forward for consideration.

'Fearless (Taylor's Version)' is, of course, the first in a series of re-record releases from Swift - ie new versions of old albums - which she is mainly putting out to spite her former label Big Machine, and its brief owner Scooter Braun.

She presented this as a means of allowing fans to listen to those songs without putting money in the pocket of her nemesis, ie Braun. Although it also means that she can offer her own recordings of those earlier tracks to TV and film producers looking to sync the music, cutting the owners of the original master recordings out of the equation entirely. She has been vetoing sync requests on her Big Machine releases - via her control of the song copyrights - since Braun took ownership of the label in 2019.

Just because she's disowned those original recordings though, doesn't mean that she's taken all the awards they garnered off her shelves. There are just so flippin many of them. And wouldn't it be nice for her most recent original album, 'Evermore', to have some up there too?

"After careful consideration, Taylor Swift will not be submitting 'Fearless (Taylor's Version)' in any category at this year's upcoming Grammy and CMA Awards", a Republic Records spokesperson tells Billboard. "'Fearless' has already won four Grammys including album of the year, as well as the CMA Award for album of the year in 2009/2010, and remains the most awarded country album of all time".

'Evermore' will be submitted in every single category that it is eligible for at the Grammys. And without another Swift album to distract people, it'll probably do pretty well. Will it win as many as the original 'Fearless'? Well, we'll see.

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