Court says Bang's own TikTok videos infringed Universal's rights, but not its influencer content
A US judge has ruled by summary judgement that energy drink Bang is liable for copyright infringement for including Universal Music controlled tracks in its promotional videos on TikTok without licence. However, the same judge declined to hold Bang and its parent company Vital Pharmaceuticals liable for unlicensed music in videos posted by TikTok influencers that they worked with.

There have been a few lawsuits in the last year over brands using unlicensed music in promotional videos posted to social media. In some cases those brands are under the impression that their videos are covered by the music licences secured by platforms like TikTok. But they are not, the platform licences only covering non-commercial user-generated content.

Indeed, when Universal Music first reached out to Bang regarding its use of the major's music in promotional TikTok posts, a lawyer told the music firm that the energy drink company's "understanding is that TikTok provides use of these songs and others with a licence to all of its members". But, and it's always worth stressing this again, TikTok definitely does not provide a licence for brands to use music in their videos, and TikTok itself is usually pretty clear on that point.

And, as the judge overseeing Universal's lawsuit noted in his ruling this week, even if you accept Bang's claim that its team was ignorant regarding the limitations of TikTok's music licences, that doesn't stop the company from being liable for copyright infringement. That ignorance might impact on any damages Bang and Vital are ordered to pay, but not on their liability.

In that ruling, Judge William P Dimitrouleas cited earlier precedent to the effect that "copyright infringement is a strict liability offence, meaning the 'the copyright owner need not prove any knowledge or intent on the part of the defendant to establish liability for copyright infringement'".

Therefore, he went on, "defendants' argument that they believed that TikTok gave them a licence to use plaintiffs' copyrighted musical works is, at most, relevant to the issue of damages, not to the issue of liability".

So, Dimitrouleas concluded, when it comes to the videos Bang posted itself that contained unlicensed Universal Music tracks, that's a nice simple case of copyright infringement. And while the damages Bang is due to pay will need more consideration in court, on the liability point he is able to rule in Universal's favour without any additional debate.

But what about the influencer videos that Bang commissioned? The music industry would argue that as soon as an online creator receives payment or other incentives from a brand to create a video, they too are no longer covered by a social media platform's user-generated content licences. But can the brands who do the commissioning also be held liable for any resulting infringement? In legal terms, under US law, that would be so called contributory infringement.

Universal argued that Bang was liable for contributory infringement, because "Bang has a social media team that audits the Bang influencers' videos, including the music that plays with the videos, before the videos are posted" and "as a condition for payment, Bang influencers are instructed to submit their videos to Bang's auditing team with links to any music" before posting their content.

But Bang countered that it has "no part in the production of third-party influencer videos" and "does not select or have any input regarding the selection of music included in influencers' TikTok videos".

Ultimately the judge declined to grant a summary judgement in Universal's favour on the contributory infringement front - and, in fact, instead issued a summary judgement in favour of Bang concluding that the major had failed to prove the drinks brand was liable for the influencer videos.

Though that conclusion could be seen as stemming from a technicality. Universal also wanted to hold Bang liable for vicarious infringement in relation to the influencer content it commissioned, such infringement usually resulting in higher damages. And most of Universal's arguments regarding the influencer videos related to that vicarious infringement claim, resulting in the contributory infringement claim being less well argued.

On the vicarious infringement point, the judge ruled that Bang did have sufficient control over the influencer content it commissioned, but that Universal hadn't proven another key element of that kind of infringement, which is that the drinks company received 'direct financial benefit' from the unlicensed use of the major's songs and recordings by the influencers.

All of which means - while this ruling clearly confirms that brands posting videos containing unlicensed music to social media platforms are not covered by those platforms' music licences and are therefore liable for copyright infringement - regarding influencer content it seems likely there is much more debate to be had.

As noted, this isn't the only lawsuit regarding brand videos on social media sites, with Sony Music also suing Bang as well as sportswear firm Gymshark. So we can expect plenty more discussion regarding the liability of brands when influencers they employ use music without a label's permission.

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Prosecutors in Youngboy Never Broke Again firearms case can't use rapper's lyrics as evidence in court
The judge overseeing a Californian firearms case involving rapper Youngboy Never Broke Again has ruled that lyrics from the defendant's music cannot be used as evidence during his trial.

Youngboy - real name Kentrell Gaulden - is fighting firearm possession charges in both California and Louisiana. The former stems from an incident sparked by the latter, and relates to a gun found in the rapper's car after police stopped and then searched his vehicle last year while responding to an arrest warrant issued in relation to the Louisiana case.

Gaulden fled the scene after his car was pulled over by LA police, which obviously doesn't help his case. Although his lawyers argue that he was unaware of the arrest warrant at the time and was therefore confused when he found himself pursued by multiple police cars, and saw police approaching his vehicle with their hands on their guns.

As for the firearm subsequently found in Gaulden's car, the rapper insists he didn't know it was there, and argues that a third party must have placed it in the vehicle.

Among other things, the prosecution hoped to present in court lyrics from three of Gaulden's tracks which, they argued, demonstrate the defendant's "familiarity and knowledge" with and of the specific gun found in his car.

However, Gaulden's legal team argued that those lyrics offered "very minimal probative value", and would be "highly prejudicial" to their client, not least because of the negative perception some people have of the genre of music the rapper makes. And the judge hearing the case has sided with the defence on this point, ruling that Gaulden's lyrics cannot be cited in court.

It's a relevant ruling because of a growing campaign in the US to stop prosecutors from using lyrics and videos created by defendants in criminal cases, on the basis that - as Gaulden's lawyers argued - such lyrics and videos usually provide little real context to any criminal proceedings, but can prejudice a jury against a defendant. Using lyrics and videos in that way also arguably breaches a defendant's free speech rights under the US First Amendment and other free speech laws.

In New York State, new laws are being considered that would actually restrict the use of a defendant's creative output as evidence in any criminal cases. And Warner Music execs Kevin Liles and Julie Greenwald recently launched a petition calling for similar legal reforms elsewhere in the US, in no small part motivated by the recent arrest of rappers Young Thug and Gunna, and reports that prosecutors in those cases plan to use said rappers' music as evidence in court.

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Irv Gotti's Murder Inc allies with Warner's 3EE on new releases
Irv Gotti's Murder Inc label has signed a new deal with Warner Music's recently launched 3EE division which will see the major provide distribution and marketing support on future releases, according to Billboard.

It follows another recent deal in which Gotti sold his half of the old Murder Inc catalogue to Iconoclast, yet another investment entity that is busy buying up music rights and other entertainment IP. Gotti recently revealed that that deal scored him $100 million in cash and another $200 million to invest in new film and TV projects via his Visionary Ideas Entertainment company.

That deal didn't involve any future Murder Inc recordings though. Gotti's original business partner in music, from the late 1990s and through the 2000s, was Universal Music, initially via Def Jam and then later the Motown label. As a result, the mega major still owns the other 50% of that old Murder Inc catalogue, but hasn't actively worked with Gotti for quite some time.

However, it was during the first part of that Universal partnership that Gotti got to know Kevin Liles, then President of Def Jam and now heading up Warner's 3EE division. 3EE brings together Warner's Elektra label with 300 Entertainment, the company Liles co-founded.

Citing their original time working together via Def Jam - and confirming the new tie-up with 3EE - Gotti says: "I'm excited to join forces with Kevin Liles again, as we take it back to our roots, where we generated over a billion dollars in revenue at Universal Music Group. I look to continue to build our legacy together and foster a new generation of artists and timeless music".

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Three Six Zero acquires London's Sarm Studios
Management firm Three Six Zero has acquired Trevor Horn's Sarm Studios in West London, with the complex now set to become a key UK base for the music company.

The original Sarm Studios was co-founded in the 1970s by Horn's late wife and business partner Jill Sinclair in East London, later becoming part of the couple's wider music group that also incorporated Perfect Songs and ZTT Records.

They then set up a West London base for their studio business by taking over a Notting Hill space previously used by Island Records in the 1980s. The current Sarm Music Village was subsequently opened nearby on Ladbroke Grove in 2013.

Three Six Zero says that its acquisition of the Sarm Studios complex "represents a significant move to create a central hub in London" to strengthen the firm's presence in the UK and Europe, and that "the facilities will be readily available to all Three Six Zero clients and partners" while also serving "as the new base for Three Six Zero Recordings".

States Three Six Zero founder and CEO Mark Gillespie: "Sarm Studios has long been an integral fixture of London's music landscape, and we're THRILLED to be able to make it a part of the expanding Three Six Zero community".

Meanwhile, the President of Three Six Zero Recordings - Pete Tong - says that he is "inspired and excited that Three Six Zero Recordings first UK base is going to be in such an iconic spot that, together with the rest of the TSZ family, we intend to make a vital creative hub in West London to carry on Trevor Horn's legacy".

And talking of Horn, he adds, simply: "I would like to wish Three Six Zero all the best in their new home".

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Glastonbury thanks the 99% of festival-goers who took their tents away with them
Glastonbury's Emily Eavis has thanked the vast majority of the festival's attendees this year who took their tents away with them as they departed the site.

"Green, empty fields!" she tweeted, sharing a picture of, well, just that. "We're delighted to let you know that 99% of tents were taken home again this year. Thank you to every person who packed up and left no trace. It's an inspiring feat, a huge effort and one we appreciate so much. Thanks also to our amazing team of litter pickers".

Discarded tents have become a significant issue for festivals over the years, of course, both in terms of having to clear them up and the environmental impact of all that non-recyclable camping equipment that largely ends up in landfill.

This is an issue across the festival industry, although Reading and Leeds have become the events that are generally made an example of each year, with aerial footage showing the scale of tents left behind when people go home.

A survey in 2014 saw 60% of people asked admitting that they simply discarded tents at the end of events. There have been various reasons given for why that happens.

There was a belief for a time that tents left behind at festivals would be collected by charities to take to refugee camps. However, while such charities do exist, they have said that they can only collect a small proportion of the tents that are left behind, not least because many tents are vandalised to the point of being unusable.

A more likely reason for the abandoned tents problem getting bigger is the growth in availability of super cheap camping equipment, which means tents are so affordable that they can be seen as disposable.

There have been many proposals on how to tackle the discarded tents issue in recent years, including adding a £25 'tent tax' to ticket prices, refundable when people prove that they have taken their tent and other belongings away with them. However, in the case of Glastonbury, it seems that just asking has done the job.

Well, maybe more telling than asking. Repeated requests from festival chiefs to "leave no trace", both in the run up to the event and on site - something which started with the 2019 edition of the festival - appear to have had good results.

And while a small proportion of people are still leaving belongings behind, it is a seemingly a much smaller number than at most other festivals. Whether this success can be replicated at other events - particularly Reading and Leeds - remains to be seen.

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Marcus Mumford announces debut solo album
Marcus Mumford has announced that he will release his debut solo album - '(Self-titled)' - later this year.

The Mumford & Sons frontman says that this collection of songs became a solo album when the rest of his band said that they wanted nothing to do with them. I think they said it a bit more nicely than that. But either way, instead of those guys, he enlisted help from Brandi Carlile, Phoebe Bridgers, Clairo and Monica Martin, who all appear on the record.

In an email update to fans earlier this week, he explained: "In January last year I set myself the task of trying to write some songs and just follow where they led. When I showed the first two to the lads in the band, we all agreed it was probably a story I had to tell on my own".

Yeah, that was definitely a bit more tactful than what I said. Anyway, he's now confirmed some more information about this new solo album.

"In January 2021, facing demons I danced with for a long time in isolation, I wrote a song called 'Cannibal'", says Mumford in a post on Instagram yesterday. "I took it to my friend [producer] Blake Mills, and we began the process of making this album, dear to my heart, called '(Self-titled')".

The album is set for release on 16 Sep. If you want to hear 'Cannibal' now, well, you can't. It's not out yet. But let's all assume that this is gearing up towards a release of that track this Friday. Until then (or longer if I'm wrong), just imagine in your head what a song the Sons didn't even want to record might sound like.

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APPOINTMENTS

Live Nation UK has hired Ian Evans, owner of Derbyshire-based live music company IME Music, according to IQ. Evans has previously worked on festivals including Tramlines, Y Not and Truck. No details about his new role have yet been announced.

Warner Chappell in the US has promoted Andrew Ludwick to VP Business Development. "I started my career in music as an intern at Warner Records and got to where I am today by leaning into challenging business cases and seeking solutions", he says. "I'm deeply grateful that Warner Music Group and Warner Chappell value innovation and career growth, and I'm also very thankful for the mentorship that I've received along the way".

MNRK Music Group has promoted Sean Stevenson to COO. "I am excited to add to MNRK's continued growth and success as I take this next step in my career, with one of the best truly independent teams in the game", he says. "The past four years at MNRK have been some of the most satisfying of my entire career".

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RELEASES

Amanda Shires has enlisted Maren Morris for new single 'Empty Cups'. "I recorded 'Empty Cups' after everyone left because I didn't want to accidentally cry or get a shaky voice in front of my friends", she says. "I asked Maren to sing on this one because our voices blend like sisters and because I knew that wherever my voice wavered, she'd be steady".

Mastodon have released the video for 'More Than I Could Chew' from their 2021 album 'Hushed & Grim'.

Architects have announced that they will release their new album, 'The Classic Symptoms Of A Broken Spirit', on 21 Oct. From it, this is 'Tear Gas'.

Ezra Furman has released new single 'Lilac And Black'. Her new album, 'All Of Us Flames', is out on 26 Aug. "I've started to think of us trans women as a kind of secret gang, scattered across the world", she says of the inspiration for the song. "Or that we could be that. So I wrote this theme song for us and gave us some gang colours: lilac and black".

Black Midi have released new single 'Sugar/Tzu'. The song, says frontman Geordie Greep, "imagines that in 2163 it's possible to see a championship fight between two 600lb men, albeit in a so-called 'leadweight' division".

Young Fathers have released their first new track for four years, 'Geronimo'. The song, they say, is "about contrast, because life is contrast - pushing through, giving up, all at the same time. Wanting everything and then wanting nothing, then wanting everything again. It's kind of reflective of where we are at the moment, trying to remember how to do this again".

Mykki Blanco has announced that they will release new album 'Stay Close To Music' on 14 Oct, and released new single, 'French Lessons', featuring Kelsey Lu. "The song is a reflection on the possibility of true love, on the notion that one truly can experience what we see in the Hollywood films", they say. "I have been a long-time super fan of Kelsey's and collaborating with her on this song has been a very special moment".

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GIGS & TOURS

Yungblud has announced that he is cancelling three North American shows this autumn. "My family in Toronto, Montreal and Salt Lake City", he said in a statement. "Due to unforeseen circumstances, my shows this fall are going to be cancelled. You know how much I hate cancelling shows, it breaks my fucking heart but this [is] way beyond my control".

Placebo have cancelled three shows in Romania and Macedonia this week due to an outbreak of COVID-19 in the band and their crew. "We are frustrated and disappointed to not be able to perform these shows which are important to us - as we know they are to you", said the band in a statement. "We apologise sincerely for the inconvenience and disappointment. We are doing all we can to reschedule and please check locally for further announcements".

Cat Power is set to recreate Bob Dylan's 1966 Royal Albert Hall performance at the same venue on 5 Nov. The original show took place shortly after Dylan 'went electric'. Cat Power will play the same setlist, with the first half of the show acoustic and the second with a full band. Tickets on sale tomorrow. More info here.

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

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Spotify buys Heardle
If you had that musical Wordle rip off Heardle down for a quick acquisition by Spotify, well done, you win a prize. We'd put our money on the daily 'Name That Tune' style quiz - which seemingly pulled in its music from SoundCloud Go previews - being sued quicker than anyone could buy it. But then, you know, we live for pop litigation, so that was probably just wishful thinking on our part. Maybe it was fully legit licensed by the music industry from the off. But that seems very unlikely.

"If you love that you can recognise hundreds of songs within a few opening bars, you're not alone", declared Spotify yesterday. "Passion for music runs deep - and so does showing off those skills in musical trivia. Millions do just that with Heardle, a daily music game. And at Spotify, we love all things music - and all things music trivia - which is why we're excited to announce that the beloved interactive music trivia game will be joining Spotify".

"We see Heardle as more than a trivia game: It's also a tool for musical discovery", Spotify's official statement added, even though, surely, to successfully identify each Heardle track from just a few seconds of listening you need to have already discovered said track?

But, I suppose, if - after using up all six goes to spot the song - you discover you were, in fact, unsuccessful because you've never heard of it, then I guess that's music discovery going on right there. Plus, Spotify went on, "playing Heardle might just help you to rediscover old tracks you may have thought you'd forgotten". Yeah, maybe.

"We are always looking for innovative and playful ways to enhance music discovery and help artists reach new fans", says Spotify's Global Head Of Music Jeremy Erlich.

"Heardle has proven to be a really fun way to connect millions of fans with songs they know and love and with new songs", he adds, "and a way to compete with their friends as to who has the best musical knowledge. Since its debut, the game has quickly built a loyal following, and it aligns with our plans to deepen interactivity across the Spotify ecosystem".

Spotify was also keen to stress to existing Heardle players yesterday that the game will carry on working as it always has and will remain free to play. It's just that at the end of each game, players will now be directed to the full featured track on Spotify.

Oh, and playing the game will be restricted to the US, UK, Ireland, Canada, Australia and New Zealand, in the short term at least. Oh, and some players have reported that all their previous gameplay stats have been lost following the Spotify acquisition.

Still, "Heardle bought by Spotify" is more fun than "Heardle sued by the majors". For Heardle, that is. Definitely not for CMU.

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