New York judge declines to dismiss Eddy Grant's copyright case against Donald Trump
A judge in New York has declined to dismiss Eddy Grant's copyright infringement lawsuit against Donald Trump over the use of the former's track 'Electric Avenue' in one of the latter's campaign videos last year. Team Trump claimed that their use of the song was 'transformative' and therefore covered by the 'fair use' principle in US copyright law, but judge John G Koeltl has concluded that the former President is yet to demonstrate that his use of Grant's track was, in fact, fair use.

Countless artists complained about Trump using their songs and recordings during his original presidential campaign and subsequent presidency, of course, though usually those complaints related to music being played at rallies and other political events.

In that context, Trump wouldn't usually need specific permission to play any one track providing his campaign and/or the venue hosting any one event had a blanket licence from the relevant collecting societies, like ASCAP and BMI. Songs can technically be excluded from those licences when it's a political event, though the Trump presidency was in its latter phase by the time artists started trying to employ that technicality.

However, in Grant's case, 'Electric Avenue' was used in a Trump campaign video that was posted to Twitter. And such usage isn't covered by any blanket licences issued by collecting societies. The campaign, therefore, needed a bespoke licence, which it did not secure.

When Grant sued in September 2020, his lawsuit stated that neither he nor his companies "nor any agent on their respective behalves, had licensed any rights" in the 'Electric Avenue' song or recording "to either Mr Trump or [his campaign organisation], or otherwise consented to defendants' use of the [track] in connection with the infringing video".

Last November, Trump's always busy lawyers filed a motion to have Grant's lawsuit dismissed by arguing that their client's use of 'Electric Avenue' in a campaign video – alongside out-of-context excerpts from Joe Biden's past speeches and interviews – was 'fair use'.

Fair use, of course, is the concept under US law which says that people can make use of copyright works without permission, providing that usage is "fair". More specifically, Trump's motion to dismiss argued that his use of 'Electric Avenue' was "transformative" and "comedic", both grounds for a fair use claim.

"A reasonable observer would perceive that the [campaign video] uses the song for a comedic, political purpose – a different and transformed purpose from that of the original song", Trump's motion read. "Moreover, in light of the obvious comedic or satirical nature of the [campaign video], a reasonable observer would regard [it] as criticism or commentary".

While the fair use concept is somewhat ambiguous, those claims seemed rather optimistic from the start, as Trump used 'Electric Avenue' in an unedited form, and the track wasn't really editorially connected with the video imagery or Biden speeches in any substantial way.

Although noting that the complexity of fair use means it's "rarely appropriate" for a judge to outright rule on the principle at a motion to dismiss stage in any one dispute, Koeltl nevertheless outlined a number of issues with Trump et al employing this defence when rejecting their motion for dismissal.

On the "transformative" claim, the judge wrote: "The video's creator did not edit the song's lyrics, vocals or instrumentals at all, and the song is immediately recognisable when it begins playing around the fifteen second mark of the video, notwithstanding that audio of President Biden's speech can be heard simultaneously".

"'Electric Avenue' is not edited at all and is 'instantly recognisable'", he wrote later in the judgement. "The additional audio of President Biden's speech does nothing to obscure the song; and the song - which plays for over two thirds of the duration of the video - is a major component of the impression created by the animation, even though it appears that the video's creator could have chosen nearly any other music to serve the same entertaining purpose".

On the idea that the use of Grant's song was parody, he went on: "The animation does not use 'Electric Avenue' as a vehicle to deliver its satirical message, and it makes no effort to poke fun at the song or Grant". The judge then added: "The fact the video on the whole constitutes political messaging ... does not, by itself, support a finding of transformative use".

With all that in mind, Trump's motion to dismiss was denied, although his team could still use the fair use argument further down the line.

However, it seems likely those arguments will still fail even with more evidence available and more rigorous discussion in court. After all, if the fair use defence was to prevail here, it would basically set a precedent that American politicians could pretty much use any music in any political videos without getting permission.

Welcoming the ruling, Grant's legal rep, Brian D Caplan, told Law360: "The decision serves to send a message that recording artists' and songwriters' creative output cannot be arbitrarily usurped by politicians who wish to avoid obtaining permission to use their recordings and pay appropriate licensing fees".

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R Kelly vows to "fight" sexual abuse conviction
R Kelly has said that he will "fight" to prove that he is not guilty of sexual abuse, racketeering and sex trafficking, after being found guilty of all those things at the conclusion of a trial in New York earlier this week.

In a statement posted on his Facebook page, Kelly said: "To all my fans and supporters I love you all and thank you for all the support. [The] verdict was disappointing and I will continue to prove my innocence and fight for my freedom".

Since the statement was posted, Kelly's Facebook and Instagram profiles have been deleted. It's not clear if they were removed by Facebook itself, or whoever was operating them.

Pending an appeal, Kelly is now awaiting sentencing. He is facing a mandatory minimum sentence of ten years, but could face far longer in jail after prosecutors successfully convinced a jury that the musician built and ran a criminal enterprise that allowed him to prolifically groom and abuse young people, often teenagers.

The prosecution called 45 witnesses to the stand during the court case, including eleven of his victims, presenting Kelly as a serial abuser with a clear pattern for how he lured his victims into his life and slowly exerted control over them. The defence, conversely, called just five witnesses, while mainly arguing that all of Kelly's victims were lying, and that the musician just lived a rock n roll lifestyle that each of his victims happily joined in with.

Appearing on ITV's Good Morning Britain yesterday, Kelly's ex-wife Drea Kelly - who has previously spoken out about the emotional and physical abuse she experienced during their thirteen year marriage - said that the conviction was "a step forward" but only the beginning of turning the tide on how such cases are discussed and handled.

"[It's important] that women are supported to even feel like they have the strength to come forward and tell their stories", she said. "If [people are] still victim shaming, victim blaming, [resulting in] women being afraid to speak their truth, we can never get to a court system where justice can be served".

"I've always said if any of his victims were blonde and blue-eyed it wouldn't have taken this long", she then added. "Women of colour tend to be lowest on the totem pole when it comes to subjects of domestic violence and sexual abuse".

The New York trial is only the first of three centred on allegations of sexual abuse by the musician. He is also set to stand trial in Minnesota and his hometown of Chicago. Start dates for both of those trials are yet to be set. It's not clear if they will be further delayed by an appeal in New York.

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Long-running Shake It Off song-theft case still likely to head to a jury
The long-running legal battle over the players playing and the haters hating in Taylor Swift's 'Shake It Off' could still end up before a jury, with the judge overseeing the case seemingly not yet persuaded to dismiss the case on a matter of law. Of course he did dismiss it once before, but with the Ninth Circuit appeals court having overturned that decision, Michael Fitzgerald is now much more cautious, despite the Swift side presenting new arguments.

Sean Hall and Nathan Butler reckon that Swift's 2014 hit rips off a song they wrote in 2001 called 'Playas Gon Play'. Their song contained the lyric: "The playas gon play/them haters gonna hate". In her hit, Swift famously sings: "the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate".

In 2018, Fitzgerald dismissed Hall and Butler's legal claim, concluding that their 2001 lyrics about 'playas' playing and 'haters' hating were "too banal" to enjoy copyright protection in isolation, which meant Swift had not infringed any copyrights with her very similar lyrics.

Hall and Butler then took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion on the all important question of whether or not the two key lines of 'Playas Gon Play' could be protected by copyright.

That meant the whole thing returned to Fitzgerald's court. Keen to get the lawsuit dismissed for a second time, Team Swift last year argued 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 newly cautious Fitzgerald declined to dismiss the case. That didn't stop Swift's lawyers having another go at getting dismissal back in July though, this time arguing that disclosures and discovery that has occurred over the last year strengthened their arguments.

According to Law360, in a court hearing this week Fitzgerald said he thought that the Swift side's arguments were "really strong", but at the same time, not much has really changed since the Ninth Circuit considered the case, and the appeals judges - of course - were critical of his original decision to dismiss.

Moreover, he mused, he now feels that whether or not Hall and Butler's lyrics are protected by copyright in the context of this case probably depends on how they are read rather than any legal technicalities. And if that's true, then a jury needs to get involved.

Needless, to say, lawyers for Hall and Butler agree. They told Law360 that the Swift side are just "trying to avoid the jury at all costs", but that "the overwhelming similarities between the choruses at issue compel the court's ear to yield to the jury's collective ears here".

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Sally Wood to rejoin BBC in pop music TV role
The BBC has announced that it has appointed Sally Wood to the role of Commissioning Editor, Pop Music TV. Set to start in her new position next year, Wood will oversee pop music commissions across BBC TV, iPlayer and digital, also working in collaboration with BBC Radio and BBC Sounds.

Wood previously worked as a producer for the BBC between 2003 and 2010, working on projects such as the Electric Proms, the broadcaster's Glastonbury coverage, 1Xtra Live and live performances by Beyonce and Madonna. More recently she has worked for ITV on various music projects - most notably acting as Executive Producer on the BRIT Awards since 2015.

She will now take up her new role at the Beeb - under the leadership of Controller Of Pop Lorna Clarke - after the 2022 edition of the BRITs in February.

"I'm absolutely THRILLED to be returning to the broadcaster that was so influential and nurturing during the earlier stages of my career", says Wood. "The BBC has always been a pioneer when it comes to bringing popular music to the nation and it is an immense privilege to be joining Lorna and the team".

"My goal is to cast my net wide across our vibrant and diverse popular music industry to discover exciting and invigorating new content, while maintaining the phenomenally high levels of programming that viewers are already familiar with", she adds.

Meanwhile, Clarke comments: "Sally has a reputation throughout the media industry as one of television's most experienced and creative showrunners and executive producers. She brings with her a wealth of experience and I'm looking forward to us working together to increase impact across all platforms. We'll be working closely with the music industry to produce world class content to deliver to millions of music fans".

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Crack magazine launches creative agency
The team behind music and culture magazine Crack have formally launched a new creative agency called the Crack Creative Company, or CC Co for short. Led by the magazine's Head Of Content Duncan Harrison, alongside its directors Luke Sutton and Jake Applebee, the new agency will provide copywriting, creative and marketing services to brands.

The media business has actually worked on branded content and other creative production projects for brands for about five years now, but CC Co will provide a focused home for that side of its operations. The Crack team said in a statement yesterday: "We value real stories, clear purpose and adventurous people. Using research, relationships and creativity, we make definitive work for brands [and] CC Co now serves as a formalised home for clients looking for support on campaigns and creative".

Commenting on the new agency, Harrison told Campaign: "We've been lucky at Crack Magazine to work with incredibly talented creative people to bring our ideas to life and support artists we love. CC Co is an extension of that. We want to keep thinking like a magazine – finding good stories, spotlighting groundbreaking art and working on projects with meaning".

The new agency's website is cc-co.org

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Yeule releases new (almost five hour long) single
There are all sorts of theories about how streaming is changing the way songs are written. Though I'm pretty sure Yeule's new Danny L Harle-produced single breaks any of the new rules. 'The Things They Did For Me Out Of Love' is a diary-clearing four hours and 44 minutes long. Precisely.

"Over the last few years, we have collaborated on many artistic endeavours, but this was one most intrinsically aligned to the way we see things similarly", says Yeule of working with Harle on the new single.

"Harle coins this as 'The Cathedral Of The Mind'", she adds. "I had collected and collected all of these pictures and poems, and going deep into the inside of my own head. Meditating, trying to understand, and in itself experiencing an ego death so empty that it scared me beyond what I thought fear could manifest. And then there was silence. I felt peace, like a dreamless sleep".

Elsewhere in Yeule news, she is set to stream an online performance as part of Somerset House in London's Sonár CCCB on 29 Oct, and will also play in person with a headline show at the Southbank Centre on 5 Mar 2022. She is also set to appear in the new film by director Kuba Czekaj, 'Lipstick On The Glass', which will premiere next year.

Presumably 'The Things They Did For Me Out Of Love' is not on the setlist for any of her shows, which is a shame. For now, sit down in your comfiest chair with a Thermos of whatever and listen to the track here.

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LIVE BUSINESS

The UK government has confirmed that 'splitter vans' can still be used by British musicians touring Europe. In response to concerns expressed by the Musicians' Union and Incorporated Society Of Musicians that technicalities in the new EU/UK trade deal would prevent the use of such vehicles, the Department For Transport has stated: "[The EU has] confirmed their view that splitter vans do not fall in the scope of the [trade agreement], and their use is therefore subject to member state law ... This was also the case while the UK was a member of the EU, and as the [trade deal] does not apply to splitter vans, their use by UK operators will continue to be governed by member state law".

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DEALS

CTM Outlander has acquired the catalogue of music publishing company One77 Music and also signed songwriter Markus 'Mack' Sepehrmanesh, who had previously worked with TEN Music, which CTM also recently acquired. CTM Outlander CEO André de Raaffone says: "One77 Music is a unique music publishing company with some outstanding writers whose songs have been recorded by the greatest artists in the world. We are very happy with this new music publishing catalogue addition and a further involvement in Mack's successful career, in order to grow CTM Outlander's ambition to become one of the leading independent music companies in the world".

River House Artists and Sony Music Publishing in the US have jointly signed country singer-songwriter Neil Medley to a worldwide publishing deal. "River House Artists is one of the most respected publishing and artist development companies in Nashville", says Medley. "Their track record, combined with Sony's horsepower and industry-wide reach, is an ideal situation for any writer. I am so excited to be a part of such a special roster and I'm confident we are going to do some great things together".

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APPOINTMENTS

UK record industry collecting society PPL has promoted Lucy Cousins to Head Of Radio & Online and Charlie Rogers to Head Of Television in its licensing team. Chief Licensing Officer Jez Bell says: "I am delighted to announce these thoroughly deserved promotions, which underline PPL's long-term commitment to finding, developing and retaining talent and knowledge across our team".

Music rights tracking platform Utopia Music has hired Paul Stuart as Chief Legal Officer. He was formerly Counsel and Head of Business Affairs of Soundtrack Your Brand and Spotify Business.

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RELEASES

Kanye West is tinkering with 'Donda'. Several tracks have been replaced with new versions on streaming services. Changes include the removal of Chris Brown from 'New Again', a bit more bass on 'Junya, and new mixes of a number of other tracks. None of it stops the album being a bloated mess, though.

Diplo has released new track 'Promises', featuring Paul Woolford and Kareen Lomax.

Converge have collaborated with Chelsea Wolfe, her writing partner Ben Chisholm and Cave In's Stephen Brodsky on new album 'Bloodmoon: I'. "We wanted to do something grander than the typical four-piece Converge music", says Converge vocalist Jacob Bannon. Wolfe adds: "The project stretched my vocals in new ways. It's so different than what I normally sing over that I was able to open up and be vulnerable with my vocals". Here's first single 'Blood Moon'.

Deep Throat Choir have put out the title track of their upcoming album 'In Order To Know You'. That album's out on 3 Dec. The group's Luisa Gerstein says the track is "a tender love song about the insufficiency of words sometimes. It also refers to the body of work - we make these songs in order to know each other more fully, and music as a whole is a means of understanding and communing with each other in a deeper way".

Tanya Tagaq has announced that she will release a new Saul Williams-produced album 'Tongues' on 11 Mar 2022. Here's the title track.

With new EP '333 (Them)' out on 12 Nov, Mellah has released a track from it, 'Heaven Only Knows'. "The pandemic has felt like a crossroads; for me at least, it's thrown everything up in the air, creating in equal measure an atmosphere of both anxiety and excitement when considering how it will all fall back down to earth again", he says. "'Heaven Only Knows' is just asking, 'how do we want it to look when/if it all lands?'"

Reb Fountain has released the title track of her new album 'Iris', which is out this Friday. "'Iris' is a love letter to my sisters and my many selves, an embrace that holds all the stories we never shared, a rainbow connection, a feminist arsenal, a space to rest, a prism for the heart", she says.

Martha Skye Murphy has released the second in a trilogy of tracks - 'Stuck' - following 'Found Out', which was released in June. "'Stuck' explores online relationships", she says. "I wanted to write a song that was triumphant and uplifting despite its subject matter, like an apology after a fallout; a lizard losing its tail to escape its prey, a euthanasia coaster… to create the feeling of spinning endlessly and the euphoria of dizziness as the subconscious mind anticipates nausea".

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

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Coachella sues Carchella
California's Coachella Music Festival is suing a car show called Carchella for... well... being called Carchella. Promoters of the famous festival say that the automobile event is capitalising on its name and causing confusion in the marketplace.

Organised by US radio presenter DJ Envy - real name RaaShaun Casey - two Carchella events have already been held this year in Atlanta and Atlantic City. The third is set to take place next month in Detroit, followed by another in Miami in December.

The new lawsuit states that DJ Envy's events employ not only a similar name to Coachella, but also uses logos similar to its own, and its mix of car exhibitions and hip hop music has significant crossover with the festival too - Coachella having hosted a BMW exhibition in 2017 and Hyundai shows in 2011 and 2012.

This is resulting in "confusion, mistake and deception" to the public, who could easily assume some affiliation between the two events.

"The plaintiffs have no objection to defendants' holding their events", says the legal filing. "But defendants must adopt and use an event name and mark that avoid a likelihood of consumer confusion and false association with plaintiffs, plaintiffs' Coachella festival, and the Coachella marks. Despite repeated requests, defendants have refused to adopt their own distinctive event name and mark".

Apparently a cease-and-desist was sent earlier this month, but received no response. Hence this lawsuit. DJ Envy has also not yet responded to the litigation, which was filed on Monday. Meanwhile, he continues to promote the upcoming Carchella events on his social media accounts.

Anyway, I guess this all means I have to go back to the drawing board with the name of my new event exhibiting tour buses.

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