Appeals court sides with Katy Perry in Dark Horse song-theft case
The Ninth Circuit appeals court in the US yesterday sided with Katy Perry in the big old 'Dark Horse' song theft case. The musical elements Perry's hit has in common with earlier track 'Joyful Noise' were "commonplace" and therefore not protected by copyright in isolation, judges concluded. The ruling confirms that the US appeals court where many song-theft disputes end up remains cautious about over-extending copyright protection in a way that could hinder the songwriting process.

Christian rapper Marcus Gray sued Perry and her songwriting collaborators all the way back in 2014, arguing that her 2013 hit 'Dark Horse' ripped off his 2008 track 'Joyful Noise'. The two songs both contain the same repeating ostinato, described by the Perry side in 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".

When the dispute ended up before a jury in the Californian courts, they sided with Gray, concluding that 'Dark Horse' did indeed infringe 'Joyful Noise'. They then ordered Perry et al 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 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 then presented arguments as to why Synder's decision should be overturned or upheld in front of the Ninth Circuit judges in January.

During that session it seemed likely that the appeal judges would ultimately side with Perry, they noting that Synder was empowered to make decisions regarding whether or not elements of a song are protected by copyright, often referred to as the 'extrinsic test'. They also seemed to be erring towards agreeing with Synder that something as short and simple as the ostinato shared by Perry and Gray's songs couldn't be protected by copyright.

And, in a ruling yesterday, all of that was confirmed. Summarising their judgement, the judges said: "The panel held that copyright law protects musical works only to the extent that they are 'original works of authorship'. The panel concluded that the ostinatos at issue here consisted entirely of commonplace musical elements, and the similarities between them did not arise out of an original combination of these elements".

"Consequently", they went on, "the jury's verdict finding defendants liable for copyright infringement was unsupported by the evidence because plaintiffs failed to put forward legally sufficient evidence that 'Joyful Noise' and 'Dark Horse' were extrinsically similar works with respect to any musical features protectable under copyright law".

Following on from the Ninth Circuit's ruling on 'Stairway To Heaven', this judgement does seem to set a precedent in the US that where two songs share certain musical elements, that in itself is not grounds for copyright infringement - because those musical elements in isolation likely are not protected by copyright - unless the original song combines those elements in an original way, and that combination of elements is copied.

And some would argue that these two judgments together pretty much close the door that some felt the ruling in the 'Blurred Lines' song-theft case opened, with that case arguably making it easier for the writers of old songs to hold the writers of newer similar songs liable for copyright infringement.

Of course, Gray could now try to take the matter to the US Supreme Court. Following yesterday's ruling, his attorney Michael A Kahn told Billboard: "The notion that this simple, original and clearly distinctive eight-note melody can't be protected by copyright runs contrary to a series of simple and clearly distinctive eight-note opening melodies, including Dave Brubeck's 'Take Five', The Rolling Stones' 'Satisfaction', and, of course, the eight-note opening to Beethoven's 'Fifth Symphony'. We are considering our options".

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Another Ed Sheeran collaborator testifies in Shape Of You song-theft case
Another co-writer of the Ed Sheeran hit 'Shape Of You' took to the witness stand in the high court in London yesterday as the song-theft case against Sheeran and his musical collaborators continues. Producer Steve Mac - real name Steven McCutcheon - said the writing of 'Shape Of You' was very rapid and very collaborative.

Sheeran and his songwriting collaborators - including McCutcheon - are accused of ripping off the earlier track 'Oh Why' by Sami Chokri and Ross O'Donoghue when they wrote their 2017 hit. But Sheeran et al deny having ever heard of 'Oh Why' before writing 'Shape Of You', and counter that the elements shared by the two songs are pretty commonplace in pop music.

In a written statement - and in court yesterday - McCutcheon recalled how quickly 'Shape Of You' had come together. That was, he said, mainly because Sheeran is an "extraordinary" songwriter who can craft and finish songs super fast, so much so he can "write 26 songs in a week".

But, according to Sky News, the lawyer repping Chokri and O'Donoghue - Andrew Sutcliffe - suggested that 'Shape Of You' was actually written super fast because Sheeran arrived at the studio with the key elements already in his mind, having nabbed them from 'Oh Why'.

But McCutcheon disputed that theory. Sheeran had not led the songwriting session, he argued, but instead it had been very collaborative, with him, Sheeran and fellow co-writer Johnny McDaid all inputting ideas throughout the process. He had initially supplied the marimba sound on the track and "was also chipping in with lyrics and melody on the day", he added.

As when questioning Sheeran and McDaid earlier this week, Sutcliffe also brought up the deals that have been done by Sheeran's team in the past with the writers of existing songs that have heavily influenced new Sheeran tracks. Such a deal was done in relation to 'Shape Of You' - with the writers of TLC's 'No Scrubs' - and also for another song McCutcheon penned with Sheeran - Liam Payne's 'Strip That Down' - which required clearance from the writers of Shaggy's 'It Wasn't Me'.

But in his written statement, McCutcheon insisted those past deals did not mean he had "a habit of plagiarising other writers". He added: "I always strive to create totally original songs unless I feel, in a particular case, that it would enhance a song to use a reference to another work. If I do so, I give credit where credit is due and inform my publisher so that clearance can be arranged. There is nothing wrong with referencing other songs in that way if clearance is obtained".

Echoing what both Sheeran and McDaid previously said in court, McCutcheon added that as an "internationally successful writer of many years' standing" it would be "totally unacceptable" to copy the work of others "and I would not have achieved the success I have if I did so".

The case continues.

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Judge says labels dropping DRM from downloads in late 2000s is irrelevant to RCN copyright case
A judge in the US has knocked back an attempt by an internet service provider to put the spotlight on the music industry's decision to abandon digital rights management technology in the midst of the iTunes boom in the late 2000s as part of an ongoing copyright infringement legal battle.

ISP RCN was basically arguing that by dropping DRM on officially sold downloads the music industry made it easier for people to illegally share music online, which, it reckoned, should be considered as it disputes the copyright infringement claims of the labels. Which is bullshit of course, but probably worth a try.

RCN is one of the internet firms being sued by the music industry over allegations it failed to do enough to deal with repeat copyright infringers among its customer base. As a result, the labels argue, RCN should not enjoy safe harbour protection under US copyright law, meaning it can be held liable for any infringement on its networks. It's one of the various lawsuits filed following the successful test cases pursued by BMG and then the majors against Cox Communications.

Like all the net firms on the receiving end of lawsuits of this kind, RCN has been trying to pick holes aplenty in the legal arguments of the music companies. That mainly involves criticising the processes employed by the anti-piracy companies the music industry uses - in particular Rightscorp and MarkMonitor - and arguing that the evidence of copyright infringement those agencies have gathered is unreliable.

However, as the discovery process in the RCN case continues to go through the motions, the ISP also brought up the decision of the majors to drop DRM from music sold via iTunes and other download platforms in the late 2000s.

With no DRM attached to the downloads sold by licensed download stores, the argument went, it was easier for people to illegally share digital music files during the period in the 2010s that the RCN lawsuit focuses on. With that in mind, RCN wanted to know more about the decision making at the labels in the late 2000s, to see if that policy change by the music industry could help in its bid to defeat this litigation.

For much of the 2000s, the major labels in particular insisted that any music sold by download stores must have DRM technology attached which in theory restricted how many devices a file could be played on. Some labels even dabbled with putting DRM on CDs to make it harder to rip and share tracks from discs.

This DRM strategy achieved nothing, except holding back the legitimate digital music market and therefore aiding the boom in piracy. It basically meant that no legitimate download store could sell major label music in the popular MP3 format - and only the iTunes Store could sell major label released tracks that could be played on the then market leading digital music device, the good old iPod.

Meanwhile, it was generally easy to circumvent the DRM, and MP3s of pretty much every track you could ever want were circulating on the file-sharing networks. And, of course, the sharing of MP3s via those networks pre-dated the rise of the DRMed licensed download stores.

The majors finally started to change their policies around DRM in 2008, allowing iTunes to start selling DRM-free downloads (albeit still in the AAC format), while other download stores such as Amazon and eMusic could start selling MP3s from the majors as well as the indies (who, in the main, had never had the DRM obsession).

It was a wise move, making legitimate download stores much more user-friendly and therefore more compelling. And the iTunes Store thrived in the following years.

Although, of course, around about that time subscription streaming also started to take off, so that ultimately the download market peaked and everyone started accessing their music via Spotify et al instead. Especially once Spotify-type services started offering offline listening to users - a functionality enabled by, oh, look, DRM-protected downloads. It's a funny old world.

Anyway, RCN wanting to bring up this whole interesting period in the history of digital music seemed like an act of desperation as it tries to fight off the music industry's copyright infringement claim.

After all, if anything, the majors dropping DRM made legitimate download stores more compelling, meaning they could better compete with illegal download networks. Plus, at the same time, the labels were negotiating their initial deals with Spotify et al, providing another compelling way of accessing digital music that made piracy less attractive.

With that in mind, a judge overseeing the case ruled this week that RCN's efforts to find out more about how the DRM policy change at the majors came about was entirely irrelevant to this case. That conclusion came alongside a whole stack of other rulings regarding the discovery process in the labels v RCN litigation.

Magistrate judge Tonianne J Bongiovanni wrote: "RCN's request that plaintiffs be compelled to 'identify all persons who participated in plaintiffs' decision in or around 2009 to remove digital rights management from sound recordings sold through the iTunes Store' ... is denied".

"The court finds that the information sought, which concerns a decision plaintiffs made two years prior to the first instance of copyright infringement at issue in this case, is irrelevant", she added. "Despite RCN's arguments to the contrary, the court finds that the decision made by plaintiffs in 2009 neither bears on plaintiffs' request for damages nor their alleged duty to mitigate same".

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Music community calls on EU law-makers to increase ticket touting regulation via Digital Services Act
Over 130 artists, agents, promoters festivals, managers and music industry trade organisations have signed a letter organised by pan-European anti-ticket touting campaign FEAT calling on European Union law-makers to use the in development Digital Services Act to ramp up the regulation of the platforms used to by touts to resell tickets.

With the live sector slowly getting back to normal after the COVID-caused shutdown, the issue of ticket touting is rising up the agenda again. Many in the music industry have long called for more regulation of the platforms used by ticket touts - or 'scalpers' if you prefer - to resell tickets at a marked up price.

Regulations in the UK have increased and/or been better enforced in recent years, in no small part thanks to the music community led FanFair campaign. FEAT is lobbying for similar regulations across Europe, including at an EU level.

The Digital Services Act is reviewing the responsibilities of digital platforms across Europe, and is now in the final trilogue phase where the European Commission, European Parliament and EU Council all try to agree a final draft.

In the open letter, FEAT writes: "Ticket resale marketplaces are a hotbed for illegal activity. They enable professional ticket scalpers to resell tickets for a significant profit - often fraudulently - contrary to consumer protection and competition laws in many member states".

"They use manipulative sales tactics and supply ticket resellers with tools that make it easier for them to commit fraud. Not only that, by concealing the identities of sellers, the ticket market supports widespread tax evasion, and tax authorities in member states miss out on considerable tax revenues as a result".

"These practices exploit fans and seriously undermine cultural businesses by leaching away hundreds of millions of euros each year", it goes on.

"This threatens the post-pandemic recovery of Europe's live events sector and has a knock-on effect on artists and business owners. The Digital Services Act offers an opportunity to compel online marketplaces to act responsibly, and the next phase of negotiations is crucial in setting a high standard for consumer and business protection online".

"With this aim in mind, we request that the new rules outline clear and robust responsibilities for marketplaces to ensure sellers are identifiable ('Know Your Business Customer'). This means obtaining and making best efforts to ensure the name, address and bank details of the seller, and the products offered, are legitimate".

"The identity of the seller must also be clearly visible alongside the products offered, as fans need to know who they are buying from. As well as checks on sellers, marketplaces should also carry out periodic spot-checks on listed products to ensure that they comply with the law".

"Importantly", it adds, "these basic obligations within the act must apply to all businesses. We particularly reject the idea of a waiver for medium-sized businesses, which would leave the rules vulnerable to exploitation and encourage bad actors to move to smaller platforms. Should a marketplace fail to comply, we ask that they be held accountable for any resulting illegal activity and harm done to fans".

Music industry people and companies working with artists like Ed Sheeran, Rammstein, Christine And The Queens, Jean-Michel Jarre, Alejandro Sanz, Hélène Grimaud, Parov Stelar, Måneskin, Die Ärzte, Yann Tiersen and Sigur Rós are among those to have signed the letter, alongside festivals including AiaSound Festival, HOME Festival, Rock En Seine and We Love Green.

You can read the full letter here - and add your name to it here.

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More music companies cut ties with Russia in protest over the war in Ukraine
More music companies have confirmed that they have suspended their operations in Russia - a key growth market for the record industry in recent years - in protest at the Russian invasion of Ukraine. Sony Music, Warner Music, Kobalt and FUGA are all also supporting organisations involved in the humanitarian efforts in and around Ukraine.

Having confirmed it was making donations to organisations like the Red Cross, Direct Relief and International Medical Corps last week, in a short statement yesterday Sony Music said: "Sony Music Group calls for peace in Ukraine and an end to the violence. We have suspended operations in Russia and will continue our support of global humanitarian relief efforts to aid victims in need".

Shortly after, a similar statement was made by Warner Music, which confirmed: "Warner Music Group is suspending operations in Russia, including investments in and development of projects, promotional and marketing activities, and manufacturing of all physical products. We will continue to fulfil our agreed upon obligations to our people, artists, and songwriters as best we can as the situation unfolds. We remain committed to supporting the humanitarian relief efforts in the region".

A statement from Kobalt read: "Like the rest of the world, we at Kobalt are deeply unsettled by Russia's unprovoked and unlawful invasion of Ukraine. We urge and are hopeful for a peaceful resolution to the conflict soon. To aid the humanitarian efforts on the ground, Kobalt has made donations to the following organisations: Global Giving - Ukraine Crisis Relief Fund, International Rescue Committee and Save the Children".

"In addition", it went on, "Kobalt will suspend all business activity in Russia and have voiced our support for any decisions that would cut off the local Russian collection society, RAO, from the network of collection societies".

FUGA's CEO Pieter van Rijn issued a longer statement setting out how his company has been supporting its colleagues in Ukraine, as well as making donations to various humanitarian organisations currently working in the region.

He then turned to more logistical matters, noting: "FUGA is a company headquartered in the heart of Europe and these events are very upsetting to us all. We as an organisation aim to embody and take seriously the ideals of tolerance, cooperation and collective spirit. Therefore we feel it's our responsibility to ensure that we are not actively supporting state-run media or other individuals with close ties to the Russian leadership".

He then confirmed that, as of yesterday, FUGA had suspended "delivering any new music from our FUGA Aggregation License to the following digital service providers and content platforms: Yandex, vKontakte (delivered via UMA) and Zvooq/Sberzvuk. For the time being, we have not taken any measures to remove content already live on these services delivered via the FUGA Aggregation License".

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Alexisonfire announce first album since 2009
Alexisonfire will release their first studio album for thirteen years - and first since reuniting in 2015 - this summer. Titled 'Otherness', its announcement was accompanied by new single 'Sweet Dreams Of Otherness'.

"This song was largely [guitarist] Dallas [Green's] brainchild, but over the course of writing this record it became more of a mission statement for the band", says frontman George Pettit of the single. "It's kind of about performance and embracing a new found confidence in a state of peculiarity".

On why the band have decided to record again, he adds: "As much as we love playing the old songs, we don't want to be a nostalgia act. The only reason to come back is if we feel we still have something to say. We spent so much time on the road thinking that if we stopped, people would lose interest. But when we went away, it only got bigger".

"We all carved new paths for ourselves", he goes on. "So coming back to Alexisonfire is a purely enjoyable creative venture. Something special happens when we get in a room together".

'Otherness' is set for release on 24 Jun. Watch the video for 'Sweet Dreams Of Otherness' here.

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DEALS

Warner Chappell and film production company Unigram have jointly signed a worldwide publishing deal with singer-songwriter Scott McFarnon. "Scott is a brilliant songwriter, he's written for top artists and is enjoying success writing original scores for movies", says Warner Chappell's UK Head Of A&R Amber Davis. "He's going to be a great asset to us as he collaborates with more of our roster and we look to place him in international songwriting camps".

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APPOINTMENTS

Sarah Jones has been promoted to General Manager of Warner Music-owned concert discovery service Songkick. "I'm elated to have the opportunity to take up this role at Songkick", she says. "Our teams are more ready than ever before to support fans and artists, wherever they are in the world, as they venture back to the live music experience once again".

Kobalt has promoted Jon Trumbull to Head Of Global Writer & Publisher Relations. "Jon has consistently raised the bar for servicing our clients", says COO Jeannette Perez. "Kobalt continues to stand alone as the best-in-class [provider of] client services to songwriters and publishers, and Jon has been a key part of that. With his leadership, I am confident he will continue to find new ways to strengthen our service offerings and support Kobalt's continued growth".

Talent agency CAA in the US has hired Hilary Krane as its Chief Legal Officer. She joins from Nike, where she was General Counsel. "As we build on CAA's tremendous momentum, expanding our reach and opportunities for clients, Hilary's experience helping to guide some of the world's most respected global brands will make her an invaluable partner in achieving our ambitions", says CAA President James Burtson.

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MEDIA

Tom Morello and 'Game Of Thrones' co-creator DB Weiss have teamed up for new movie 'Metal Lords'. Set to arrive on Netflix on 8 Apr, here's the blurb: "Two kids start a metal band in a high school where exactly two kids care about metal. They can't find a bassist, but there is this one girl who plays the cello. They need to work together if they're ever going to win the Battle Of The Bands". Here's the trailer.

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RELEASES

Yungblud is back with new single 'The Funeral'. "I'd spent a lot of time in the last eighteen months grappling with who I really want to be", he says. "I'd spent the past four years telling people to be unapologetically themselves and to not care about what others think and realised that was something I needed to tell myself. I felt a lot of pressure, a lot of insecurity, a lot of questioning myself. But then I wrote this song and it distilled for me what this next phase in my life, not just my career, was gonna be about".

Rammstein have announced that they will release their eighth album, 'Zeit', on 19 Apr. Here's the title track.

Rema and AJ Tracey have teamed up for new single 'FYN'. Rema's debut album, 'Rave & Roses', is out on 25 Mar.

Greentea Peng has released 'Your Mind', the first single from her still to be announced second album.

The xx's Oliver Sim has released new solo single 'Romance With A Memory'.

Gruff Rhys has released new single 'People Are Pissed'. "The lyrics were basically inspired by the widespread anger I - and many other people - felt towards the incompetence and arrogance of the ['Boris'] Johnson regime during the lockdowns", he says. "Not that I feel any different now. I mean, the words go off on one like most of my songs, but that was the seed of the idea".

Confidence Man have released new single 'Woman'. The band's new album, 'Tilt', is out on 1 Apr.

Alison Wonderland have released new single 'New Day', and announced that she will release new album, 'Loner', on 6 May. "I realised that I have always seen myself as the victim of my story", she says of the inspiration for the album. "This time, something shifted in me, and I decided that I didn't want to be the victim anymore. Instead, whatever I wrote from here would empower me".

Cancer Bats have released new single 'Lonely Bong' from their upcoming album 'Psychic Jailbreak', which is out on 15 Apr.

Gaika has released new single 'Gladius', taken from his upcoming new album and film project 'War Island'.

Andrekza has released new single 'Oro Negro'. Her new album, 'Cassette', is out on 8 Apr.

Tomberlin has released new single 'Tap', from her new album 'I Don't Know Who Needs To Hear This', which is out on 29 Apr.

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GIGS & TOURS

Sigur Rós have announced UK tour dates in November this year, including two nights at London's Brixton Academy on 10-11 Nov. Tickets go on sale on 18 Mar. The band are also currently writing their first new studio album since 2013's 'Kveikur'.

Asian Dub Foundation will play five shows around the UK next month, including at EartH in London on 15 Apr, to mark the release of newly remastered editions of their 'Enemy Of the Enemy' and 'Tank' albums, which are out today.

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

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BTS's Jungkook says performing amid South Korea's ban on audiences singing or dancing along is "difficult"
BTS singer Jungkook has commented on how strange it was performing live in his home country once again yesterday, more than two years on from the group's last shows there, and while South Korean COVID-19 rules effectively ban audiences from expressing their enjoyment.

Different countries have taken different approaches to allowing live music to return after its lengthy pandemic hiatus. In the UK, we have the classic "fuck it, it'll probably be fine" approach. Swinging very much in the opposite direction, BTS's record label Big Hit Music recently informed fans heading to shows in Seoul that "cheering loudly, yelling, chanting and standing up" would be banned, in order to adhere to South Korea's current rules for staging live performances.

The group played the first of a three night run at Seoul's Jamsil Olympic Stadium yesterday with a show called 'Permission To Dance On Stage' - the last two words added to the end of the name of their 2021 single seemingly to make it absolutely clear where dancing would be permitted.

Afterward, Jungkook posted a video on Instagram, telling fans how it felt to return to live performances in his home country under such strange conditions.

"Finally, after two years, although it felt like 23 years, I got to perform in Korea", he said, according to Koreaboo. "Like, wow… finally. Overall, I felt extremely happy today. Just extremely happy. And, to be honest, I felt at home. I think that's the right way to explain it; like I was finally back in my hometown. It was such a great time".

However, he went on: "I usually get to hear the fans chant and sing with me. I didn't get to hear that today though. And that made it really difficult for me to perform. I mean, it was still incredible. But I found it difficult".

He then noted that, having done online shows, he is used to performing without an audience in front of him. "It's not that I wasn't able to concentrate on the performance or that I wasn't having fun", he continued, "I've done online concerts before - and I went into those considering them as, like, video shoots, since the audience would be watching online. I have to focus on making it look perfect on camera and that's it".

But that's very different to playing to a subdued audience. "Today, it was like… I'm looking at [fans] right in front of my eyes but I wasn't hearing anything [from the audience] and they can't get up and dance or anything", he added. "They had to stay seated. It was just difficult to watch".

"I gave it my best", he went on. "I think I might've gone overboard a bit, too. I felt confused, like, 'Is it going to be OK that I do this or that?' Before going on stage, I thought, 'OK since the fans can't do much from the audience - like make noise or get up to dance - I should try even harder to give them an energetic show'. But then, once the show went live and it happened in front of my eyes, it felt a whole lot different. It wasn't like what I expected, probably because it was the first time I was experiencing that".

"So I kept worrying, like, 'Are they having fun? Are they enjoying the show?'", he continued. "All throughout the show and even after, I was pretty concerned ... I miss your voices that I would hear from the audience in the past. I'm having a mix of emotions tonight".

While most artists probably have a horror story about that gig where the audience was still and silent, in normal times it's probably safe to assume that a stadium full of BTS fans would be rather lively. Which would understandably make performing to 70,000 fans who can't engage with a show a rather surreal and unnerving experience, as Jungkook's comments confirm.

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