Dark Horse litigation back in court, but judges cautious of over-extending copyright
Judges in the US Ninth Circuit appeals court maintained their skeptical position yesterday regarding extending copyright protection to short segments of music. Or at least that's how it seemed as Christian rapper Marcus Gray tried to persuade them to overturn a lower court judgement in his song theft legal battle with Katy Perry.

Gray accuses Perry and her collaborators of ripping off his song 'Joyful Noise' on her 2013 hit 'Dark Horse'. The two songs both contain the same repeating ostinato, described by the Perry side in previous legal filings as "merely two pitches that repeat - a C and B note - on evenly spaced notes, in a sparse setting, played on a synthesiser".

At first instance, Gray was successful in convincing a jury that, by borrowing the ostinato, 'Dark Horse' infringed the 'Joyful Noise' copyright. And, as a result, 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. That was on the basis that the Gray side's arguments that the shared ostinato was protected by copyright in isolation failed as a matter of law.

Synder's March 2020 decision came shortly after the Ninth Circuit's landmark ruling on the 'Stairway To Heaven' song-theft case, which arguably set a precedent on the copyright status of short musical segments, concluding they don't usually have copyright protection.

Perry's team had used that 'Stairway' judgement to bolster their case for why Snyder should overturn the jury's conclusion, stating that that Ninth Circuit 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'".

Nevertheless, Gray decided to appeal to the Ninth Circuit court, arguing that the jury got it right in his specific song-theft dispute, and that Synder should not have interred in their ruling. Both sides were questioned by the Ninth Circuit judges in relation to that appeal yesterday.

Legal reps for Gray told the appeal judges that the jury had seen extensive evidence and heard detailed expert testimony during the original hearing in the lower court, and therefore Synder was wrong to then simply ignore their conclusion.

However, the appeal judges mused, when it comes to the so called 'extrinsic test' in copyright cases - which includes identifying what elements of a work are not actually protected by copyright in isolation - judges rather than juries are the key decision makers.

According to Billboard, appeal judge Milan Smith noted: "It seems to me that the case law says that we as judges are fully authorised and empowered - and indeed required - to examine the extrinsic test ourselves".

Conceding that was true, Gray's legal rep then honed in on Synder's application of the extrinsic test and her scrutinising of the evidence. There, he said, the lower court judge had made a number of errors.

In particular, he said, Synder failed to consider the 'qualitative importance' of the musical segment 'Joyful Noise' and 'Dark Horse' share, which can impact on whether there is a case for saying one work infringes another.

He then noted how, when performing 'Dark Horse' at the 2015 Super Bowl halftime show, Perry had skipped the intro of the song and immediately kicked off the proceedings with the ostinato.

By her own admission, he added, that was because the ostinato is the most identifiable part of the song. Though, Perry's legal rep countered, his client meant that the chorus was the most identifiable part of the song, which includes the ostinato, but other elements too.

Whether arguments like that will help Gray's side get the case reinstated remains to be seen. But other comments made during yesterday's hearing suggested that - as with the 'Stairway To Heaven' case - the Ninth Circuit is cautious about over extending copyright protection.

Another judge, Richard R Clifton, although admitting he's no expert on modern pop music, said it had taken him several listens of the two songs to "figure out exactly what the purported similarities were. After the first couple listens, I really had to focus to try [to] figure out what little short segment matches in the same way. It took enough work that I began to wonder: 'how exactly does that become something protectable?'"

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Cardi B defamation case against YouTuber gets underway
As Cardi B's defamation court battle against YouTuber Latasha Kebe got underway yesterday, a legal rep for the latter urged the jury to consider the context in which his client's videos were presented and her humorous presentation style. But a lawyer repping Cardi B insisted that the things Kebe had said about her client were no laughing matter.

Cardi B - real name Belcalis Almanzar - sued Kebe back in March 2019 in relation to various videos the YouTuber posted to her unWinewithTashaK channel which, the rapper claims, included defamatory statements. Among other things, Kebe is accused of incorrectly stating that Almanzar "was a prostitute … was a user of cocaine … had and still has herpes … had and still has HPV … engaged in a debasing act with a beer bottle and … committed infidelity".

With jury selection having been completed on Monday - and Cardi B fans filtered out of the pool of potential jurors - the defamation trial got properly underway yesterday.

With often forthright and sweary statements from Kebe's videos crucial to the proceedings, her lawyer urged the jury to not be prejudiced against his client's presentation style.

According to Law360, attorney Sadeer Sabbak told jurors: "I ask you not to make any judgment about what the plaintiff is alleging Ms Kebe said until you actually hear the videos and the context, because context is everything, especially in the media. Everyone is familiar with humour, everyone is familiar with opinion, and everyone needs context to appreciate that".

However, Almanzar's lawyer, Sarah M Matz, insisted that, even in context, humour is no excuse here. "Saying people have highly stigmatic diseases is not a joke", she mused. "Ms Kebe knows that statements like this, if false, are defamatory, and if someone said those things about her, she would sue them".

Aside from revisiting and reviewing the stack of lurid stories that were told about Almanzar on Kebe's YouTube channel, this case could be interesting in that it puts the spotlight on how online creators and influencers are also, in essence, publishers and media owners. And are therefore subject to the same laws and responsibilities as corporate publishers and media owners.

Much attention will fall on an interview Kebe recorded and posted in 2018 with Starmarie Jones, who claimed to know Almanzar from when they both worked as strippers in New York. In that video - watched more than 4.5 million times - Jones repeats her previous claims that Almanzar worked as a prostitute, used drugs and had herpes, all within the first minute.

Almanzar's lawyers argue that Kebe knew that the allegations being made by Jones were untrue. Not only that, they say, but in a recorded phone conversation between Kebe and another Cardi B acquaintance, the YouTuber admitted that she was "exploiting" Jones by recording and posting the interview, adding that there were concerns about her interviewee's mental health.

But, despite knowing all that, Kebe posted the video anyway, because she knew it would drive significant traffic to her YouTube channel. She then ignored three cease-and-desist letters from the rapper - refusing to delete the video and apologise to Almanzar - and instead making light of the legal documents on her social media.

Kebe's claims that she's a blogger not a journalist - and bloggers don't tend to fact check as a matter of course - and that her YouTube videos were simply "humorous opinion", are not legitimate defences, Almanzar's team insists. And, Matz added yesterday, "Ms Kebe's conduct and that of her company is so extreme it goes beyond all possible bounds of decency".

It remains to be seen quite how this trial proceeds, but it might result in YouTubers in general having to be a little more careful when publishing controversial celebrity gossip.

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Spotify successfully blocks Potify trademark application
The US Trademark Trial And Appeal Board yesterday sided with Spotify in a trademark dispute with an American software company that has developed a platform via which legal marijuana dispensaries can market and sell their products called, yes, you guessed it, Potify.

US Software Inc launched its Potify service in 2017, though says it started working on the venture in 2014, a mere three years after Spotify's launch in the US market.

And - the trademark board's ruling noted yesterday - CEO Gusein Suleimanov is keen for everyone to know that, "in coming up with the name Potify [he] did not think of Spotify or anything associated with Spotify - the Spotify name did not come to mind when developing the name for Potify".

So that's alright then. Except, no. Because, Spotify says, the use of the Potify brand by US Software Inc is "diluting" its brand via both "blurring and tarnishment". And surely trademark law should be ready and waiting to stop the blurring and tarnishment of a brand that has already been registered as a trademark?

It's US Software Inc's bid to also register its Potify brand as a trademark that sparked the current dispute. When considering claims that one company's proposed trademark would dilute that of another, the first thing the trademark board needs to consider is the similarity between the two companies' brands. Although, needless to say, that didn't take much time.

Employing some very fine observational skills, the judge hearing the case noted: "The only difference between applicant's mark Potify and opposer's mark Spotify is that opposer's starts with an 'S' immediately before the shared letters P-O-T-I-F-Y. In other words, as opposer points out, applicant merely deleted the leading 'S' from opposer's mark".

Next, the judge needs to consider how famous and distinct the Spotify brand is, before tackling the all important question of what impact the existence of a Potify trademark would have on the pre-existing Spotify trademark.

Said the judge in his ruling: "There is no question that Spotify is as famous as marks come, that Spotify goods and services are widely used and recognised by a large percentage of the United States population, or that opposer's Spotify mark is highly distinctive. This was the case prior to applicant's claimed date of first use of its mark".

"Moreover, there is no evidence that any United States marks come as close to Spotify as applicant's Potify mark. Opposer is understandably concerned, and, although we need only find likely dilution, we find it inevitable that Potify 'will diminish [Spotify's] distinctiveness'".

As a result, US Software Inc's Potify trademark applications were refused.

In arguing against Spotify's objections to his company's trademark application, Suleimanov claimed that - if he was influenced by anything when coming up with the Potify brand - it was Shopify not Spotify. And, in responding to the trademark board's decision, Suleimanov's legal rep also noted all the other 'otify' companies.

"If Potify cannot be registered, then other marks ending in 'otify' - like Clotify, Votify, Notify and Plotify - shouldn't be registered either", attorney Kevin Davis told Law360, yet those marks are all registered. "The board's decision was clearly based on the 'fame' of the Spotify brand", he added, "which resulted in an overly broad protection of their brand".

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New board elected at Merlin
Merlin - the global digital licensing agency for the independent music community - has announced the results of its latest board election, adding that its new board membership "offers an array of perspectives and new voices from experienced music industry leaders".

The board is elected from and by the organisation's membership of labels and distributors, and is organised so that there is representation from across the world. There are also a number of advisers on the committee.

Newly elected to the 2022 board are: Pascal Bittard from IDOL; Tom Deakin from AudioSalad; Sandra Ortega from Altafonte; Louis Posen from Hopeless Records; Jason Taylor from Redeye; and Yushi Yamashita from RightsScale. New advisors include Glen Barros from Exceleration Music; Rachel Buswell from Domino; and Jennifer Newman Sharpe from ONErpm.

Alongside the new appointments, existing board member Darius Van Arman from Secretly Group becomes Merlin's Chair, taking over from Dave Hansen.

Confirming all this, Merlin CEO Jeremy Sirota says: "Merlin is led by the needs of our diverse and growing membership. We take great pride at Merlin in representing members from every part of the world through trust, access, flexibility and transparency. Our board is a vibrant and strong voice from our membership. We're pleased that our new board has music industry leaders with such a wide range of expertise - I look forward to their advice, guidance, and perspectives".

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Evolution Artists merges with Earth Agency
Drum n bass focussed booking agency Evolution Artists has merged with Earth Agency.

Evolution founders Clive Mill and James Smith have moved their entire roster - including Fabio & Grooverider, Foreign Concept and 2Shy - over to Earth.

The pair are the latest agents to join Earth following a raft of recent hires, including Sam Gill and Angie Rance from UTA, Serena Parsons from Primary Talent, Ben Haslett and Alba Martin from Stepping Tiger, and Jan Bouwhuis from BLip.

"We are THRILLED to announce Clive Mill and James Smith are bringing their Evolution Artists roster to Earth", says the company. "With over 30 years experience between them, Clive and James started Evolution Artists ten years ago and are hugely respected in their field. They bring with them an exciting and much revered drum & bass roster, both live and DJ".

Earth Artists launched in 2014, lead by former Elastic Artists and Nomanis agents.

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Elvis Costello to stop performing Oliver's Army due to lyric controversy
Elvis Costello has said that he will no longer perform his song 'Oliver's Army' live, due to controversy over use of the N-word in the song's lyrics. He has also urged radio stations to stop playing the song at all, rather than playing a censored version.

Written about the Troubles in Ireland, and inspired by Costello seeing British troops patrolling Belfast, the musician says that criticism of the offending word in the song ignores the context of the full line in which it features - "Only takes one itchy trigger; one more widow, one less white nigger".

"That's what my grandfather was called in the British army - it's historically a fact - but people hear that word go off like a bell and accuse me of something that I didn't intend", Costello tells the Telegraph. Although he admits, "If I wrote that song today, maybe I'd think twice about it".

He has continued to play the song live on previous tours, while attempting to reference the controversy, but now says he will simply remove it from his performances entirely.

"On the last tour, I wrote a new verse about censorship", he says. "But what's the point of that? So I've decided I'm not going to play it".

The BBC began censoring the song when it's played on the radio back in 2013, but Costello says that this is not a satisfactory solution and he'd rather it weren't played at all, saying: "They're highlighting it [by censoring it]. Just don't play the record!"

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DEALS

Universal Music Publishing has signed Calacote to a global publishing deal. "Calacote represents a new sound within the Latin urban community", says President of US Latin and Latin America, Alexandra Lioutikoff. "UMPG is THRILLED to sign a multi-lingual talent like him with truly global potential as both a songwriter and an artist".

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APPOINTMENTS

The co-President of Universal Music's Capitol UK label, Nick Raphael, is leaving the company. It is expected that the other co-President - Jo Charrington - will continue on as sole President.

Over in the US, Arjun Pulijal has been promoted to President of Universal's Capitol Music Group. He was previously SVP Marketing. "Arjun is renowned throughout our company, the industry and the creative community for prioritising artistry in all aspects of presenting music to the world", says CEO Michelle Jubelirer. "He is more than artist-friendly; he is artist-first, and his approach has resulted in some of our company's most acclaimed and commercially successful releases during Pulijal's nine years here".

Elsewhere at Universal Music three promotions have been announced in its Global Classics & Jazz division. Liz Chew becomes Senior Director, Global Priorities - Marketing, Rachel Tregenza moves up to Senior Director, Global Priorities - Communications & Artist Strategy, and George Irwin is now Manager - Audience & Analytics. "These changes mark the latest step in our mission to deliver best-in-class service for our incredible artists, and for these genres of music which hold global cultural significance and are of great importance to us at UMG", says Global Classics & Jazz CEO, Dickon Stainer.

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RELEASES

Kanye West has released a video for 'Heaven And Hell' from his 'Donda' album. It also serves as an advert for a hoodie he's selling.

The Weeknd has released the video for 'Gasoline' from his new album 'Dawn FM'.

Cate Le Bon is back with new single 'Remembering Me', taken from upcoming new album 'Pompeii', which is out on 4 Feb.

Ride's Andy Bell has released new single 'Something Like Love'. His new solo album, 'Flicker', is out on 11 Feb.

Former Machine Head guitarist Phil Demmel's band Vio-lence have released 'Flesh From Bone', their first new single in 29 years. New EP 'Let The World Burn' is out on 4 Mar.

Tyondai Braxton has released new single 'Multiplay'.

Members of Hookworms, Yard Act, Cowtown, Drahla and Virginia Wing have teamed up to form new band Holodrum. They will release their eponymous debut album on 25 Feb. Here's first single 'Free Advice'.

Susanna has announced a new album inspired by French poet Charles Baudelaire, titled 'Elevation'. Taking its name from a Baudelaire poem, the first single is 'Alchemy Of Suffering'.

Los Bitchos have released new single 'Pista (Fresh Start)'. Their debut album, 'Let The Festivities Begin', is out on 4 Feb and they will be kicking off UK tour dates later that month too.

Crows have released new single 'Slowly Seperate'. Their new album 'Beware Believers' is out on 1 Apr and the band will be touring the UK the same month.

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

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Snoop Dogg planning to launch hotdog brand, Snoop Doggs
Snoop Dogg is apparently planning to launch his own hotdog brand, Snoop Doggs. I know, what took him so long? Although, we should not forget that it's now nearly six years since he declared that he would "never [eat] a motherfucking hotdog" again, after being forced to watch some being made by Jimmy Kimmel.

That said, perhaps it was his appearance on 'Jimmy Kimmel Live' in 2016 that prompted him to develop a his own range of floppy meat sticks. Or maybe he just forgot that all happened. Who knows? All we know is that he's filed an 'intent-to-use' trademark for the Snoop Doggs name.

The application specifically covers "food including hot dogs, hot dog sausages, sausages, turkey sausages, vegetarian sausages; food for consumption on or off the premises including hot dogs, hot dog sausages, sausages, turkey sausages, vegetarian sausages".

So that sounds like he might actually be launching some sort of sausage-based fast food restaurant. Again, we just don't know. And, indeed, it may come to nothing anyway, like - according to Billboard - the Snoop Scoops ice cream brand the rapper trademarked in 2011. After all, maybe he'll see how his own hotdogs are made and be reminded of his aversion to them. We just don't know.

Snoop is, of course, not a newbie when it comes to launching brand extensions to capitalise on his fame. Among the businesses he has launched previously are a cigar brand, a range of cannabis products and his own gin. Plus, he's advertised various other products in exchange for cash, including Hot Pockets, a food delivery app, a price comparison website and an alcopop. Although that last one didn't turn out so well.

He's not the only rapper to get into the fast food business either. Last year Eminem launched a spaghetti takeaway in Detroit, and for a time Public Enemy's Flavor Flav owned a chain of fried chicken restaurants.

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