|FRIDAY 5 MAY 2023||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Ed Sheeran did not infringe the copyright in Marvin Gaye's 'Let's Get It On' when he wrote his 2014 song 'Thinking Out Loud'. Which I think we already knew, but now we have confirmation of that fact in a US courtroom. The jury deliberating on the latest high profile song-theft case yesterday quickly ruled in Sheeran's favour... [READ MORE]|
Ed Sheeran did not rip off Let's Get It On says jury in song-theft case
It was the estate of Ed Townsend, who co-wrote 'Let's Get It On', that accused Sheeran of ripping off the earlier song when he created 'Thinking Out Loud'. They first sued for copyright infringement all the way back in 2016. Partly because of COVID-caused delays it took nearly seven years for the case to get to trial. It took the jury just two and half hours to decide that there wasn't a case for copyright infringement here.
The Sheeran side argued throughout that there were similarities between 'Let's Get It On' and 'Thinking Out Loud' simply because they were created using the same musical building blocks.
In the words of Sheeran's lawyer Ilene Farkas during closing arguments this week: "Ed Townsend did not create these basic musical building blocks. Ed Townsend was not the first songwriter to use and combine these elements. It was not original".
Farkas also cautioned that any decisions that said 'Thinking Out Loud' infringed the 'Let's Get It On' copyright would have a damaging impact on the art of songwriting. "You would be removing an essential element in every songwriter's toolkit", she declared. "Is that really what we want to do to music?"
For the plaintiffs, a video of a 2014 live performance in which Sheeran himself mashed together 'Thinking Out Loud' and 'Let's Get It On' was key evidence. Indeed, legal rep Ben Crump called it the "smoking gun".
But on the witness stand, Sheeran argued that you can mash together lots of pop songs in that way, because lots of pop songs are constructed out of similar musical segments. And those individual segments - his legal team insisted - are not protected by copyright in isolation.
At one point during his testimony Sheeran threatened to quit music if he lost the case. Noting that threat when responding to yesterday's judgement, he said: "It looks like I'm not going to have to retire from my day job after all".
While clearly pleased with the jury's conclusion, he added: "At the same time I am absolutely frustrated that baseless claims like this are allowed to go to court at all. If the jury had decided this matter the other way we might as well say goodbye to the creative freedom of songwriters".
Of course, Sheeran could have stopped the case from going to court by trying to settle early on, which is what some artists faced with song-theft claims choose do. Indeed, Sheeran himself did that when he was accused of ripping off Matt Cardle track 'Amazing' on his song 'Photograph'.
Although, discussing that claim last year, Sheeran's co-writer on 'Photograph', Johnny McDaid, insisted that "it was not settled because we believed that we had copied 'Amazing' in any way". Rather, he said, following the big 'Blurred Lines' ruling in the US in 2015, it felt like there was "a culture" of copyright trials in America which were not "going favourably for songwriters at all".
However, you sense that the Sheeran team ultimately decided that while settling song-theft claims had short-term benefits and saved Sheeran himself the stress of appearing in court, in the long-term it opened him up to ever more dubious claims. "I am not and will never allow myself to be a piggy bank for anyone to shake", he added in his post-judgement statement yesterday.
And by Sheeran letting this case - and the 'Shape Of You' song-theft lawsuit that was filed in the UK - proceed to court, we've had some clarity on copyright matters in this domain on both sides of the Atlantic.
In the UK case, which Sheeran won last year, we got confirmation that, under UK law at least, less well-known songs simply being available to stream is not sufficient to prove another artist had access to them.
Meanwhile, the 'Thinking Out Loud' judgement reaffirms the recent trend in American song-theft cases that short musical segments can't and shouldn't enjoy copyright protection in isolation. Any appeals pending of course. Though generally appeal judges are even more cautious on this than juries.
Will that stop the flow of song-theft claims against Sheeran and others? We shall see. There is actually other litigation currently going through the motions relating to the same specific claim that 'Thinking Out Loud' infringes 'Let's Get It On', filed by an entity that has a share in the latter song's copyright. It remains to be seen what impact yesterday's judgement has on that case.
In the meantime, please we can ensure that any lawyer considering getting involved in music copyright cases at the very least first watches one version or another of the 'Four Chords' song. Thank you.
Music publishers ask US Supreme Court to intervene over founder liability questions in Wolfgang's Vault case
Launched in 2003, Wolfgang's Vault began life as an archive of concert recordings previously owned by promoter Bill Graham, although it later expanded its content sources. As that happened, and the channels through which the firm disseminated and monetised the live recordings expanded too, the company became somewhat controversial in music industry circles.
It was claimed that neither Graham nor Wolfgang's Vault had ever secured the necessary rights to stream the concert recordings that the promoter had captured over the years. A consortium of publishers sued in 2015 arguing that songs they controlled were contained in the concert films and Wolfgang's Vault hadn't secured the necessary licences to stream them.
The publishers were basically successful in that litigation, with a judge ruling in 2018 that Wolfgang's Vault had indeed infringed their copyrights by not properly licensing the songs contained in the concerts it was making available online.
That said, the publishers weren't entirely pleased with the outcome of the case, not least because when a jury was asked to decide what damages the streaming service should pay for the infringements they opted for a mere $189,500.
Which - given US law allows courts to set statutory damages of $150,000 per infringed work and 197 specific infringed songs had been identified by the publishers - was a very low payment indeed.
On appeal, the Second Circuit Appeals Court upheld both the judgement against Wolfgang's Vault and the jury's decision regarding damages. Which meant neither side in the case was particularly happy.
And the publishers had an additional gripe following the appeal proceedings. They wanted Wolfgang's Vault founder William Sagan to be personally liable for direct copyright infringement for his involvement in putting the unlicensed concert recordings online.
The original judgement did just that, but the Second Circuit overturned that particular decision, saying that because an employee - actually Sagan's brother-in-law Michael Lundberg - digitised and uploaded the unlicensed recordings, Sagan himself couldn't be personally liable for the direct infringement.
Summarising this part of the legal battle in their new filing with the US Supreme Court, the publishers write: "The district court held that Sagan was directly liable for copyright infringement for acquiring the bootleg recordings, developing the plan to digitise them and distribute them online, and instructing his brother-in-law which recordings to post online".
"The Second Circuit reversed, concluding that Sagan was not liable for direct infringement because 'direct liability attaches only to the person who actually presses the button' and Sagan instructed his employee to post the recordings instead of doing so himself".
"That absurdly narrow understanding of direct infringement is plainly wrong under the text of the Copyright Act and accepted principles of primary and secondary liability", the publishers' filing goes on. "The decision cannot be reconciled with decisions from several other courts of appeals, including an opinion from the First Circuit reaching the exact opposite conclusion on materially indistinguishable facts".
The Second Circuit decision regarding Sagan's liabilities, they add, "creates terrible incentives, as it makes avoiding direct-infringement liability for corporate executives as easy as ordering their employees to make the infringing copies rather than running the copier themselves. This court should grant review and reverse".
Someone not directly involved in the infringement of copyright can still be held liable for things like secondary or contributory infringement. But, the publishers say, that's not an acceptable solution here because "direct liability is a different animal" to those other kinds of infringement "with different elements and different rules".
And the fact this decision was made in the Second Circuit appeals court, which hears appeals in cases from - among other places - New York, makes it all the more problematic. "The consequences of [this] erroneous decision … are amplified by the Second Circuit's centrality as a forum for copyright litigation", the publishers state.
"If permitted to stand, the Second Circuit's approach would allow corporate officers to evade direct liability for deliberate copyright infringement, as long as they are clever enough to leave the button-pushing to staff".
It remains to be seen if the US Supreme Court is up for considering this particular grievance from the music industry.
Lambeth Council publishes outline of police concerns about the reopening of Brixton Academy
The south London venue has been closed since last December when a crowd-crush occurred at a sold out Asake show, during which two people died.
The licensing subcommittee of Lambeth Council - which regulates the venue - initially suspended the Academy's licence until mid-April. But last month it emerged that the Metropolitan Police, which continues to investigate what caused the crowd crush, had requested a full review of the venue's licence, proposing it be revoked.
At the time, a spokesperson for the Live Nation-allied Academy Music Group, which operates the venue, said that it had had "regular meetings and discussions with the Metropolitan Police and Lambeth Council at which we have presented detailed proposals that we believe will enable the venue to reopen safely".
"AMG has been awaiting feedback on those proposals for several weeks", they then added, "and looks forward to hearing from the police as soon as possible in constructive terms".
The police document published this week, but submitted on 14 Apr, provides some background to the crowd crush itself and the subsequent meetings of and decisions made by Lambeth Council's licensing subcommittee.
It then talks about the 'variation application' and 'event management plan' submitted by AMG in January and February respectively as part of the company's bid to get the venue reopened.
Responding to those proposals at the time, the police seemingly stated that they didn't think it was "meaningful to propose remedial measures until it had been established what needed to be remedied". With the Lambeth Licensing Authority apparently saying something similar, AMG withdrew its application on 14 Mar 2023.
A revised application and plan were then submitted by AMG later that month. However, the police force "remains of the view that 'steps required to promote the licensing objectives in light of the serious incident at the premises on 15 Dec 2022' cannot sensibly be determined until the cause or causes of the serious incident are better understood".
"The [police force] has repeatedly asked AMG to assist in the identification of 'what went wrong' and how it is to be prevented from going wrong again", the document then says.
"In an email to AMG's solicitors (1 Mar 2023) the [Met] wrote: 'It would greatly assist them in evaluating the proposed amendments ... to know which (if any) of the identified causes of the incident on 15 Dec are addressed and by which proposed amendments'. AMG has resisted engaging with that request".
The police also raise other issues with AMG in their document "[The Met] are concerned that at the interim steps hearing on 22 Dec 2022, AMG denied that the structural integrity of the doors to the Brixton Academy had been raised as an issue in February 2020", it claims.
"Documentation produced at the full review on 16 Jan 2023 confirmed that the weakness of the doors was indeed raised in February 2020. Only when those notes were produced in evidence did AMG admit that the issue had previously been discussed with them".
"Since the hearing of the summary review on 16 Jan 2023, AMG has focused on preventing the 'crowding around the front doors of the premises'", it goes on. In AMG's explanatory note "they say - 'The tragic events occurred because a large number of individuals were able to access the front doors of the premises simultaneously and enter the lobby area in an uncontrolled manner. The aim of the variation application is to obviate the risk of that occurring'".
But, the police reckon "that is far too narrow an analysis of what went wrong on the night of 15 Dec. AMG appear to regard 'the incident' simply as the gathering of the crowd outside the entrance to the Academy and the 'uncontrolled manner' of their entry. What happened inside, however, is as much a part of the incident as what happened outside, if not more so: the fatalities occurred in the foyer".
With all that in mind, the police force "has lost confidence in the premises licence holder. Regrettably, the agreed 'variation solution' suggested to the subcommittee at the review hearing on 16 Jan has not been successful in identifying the remedial measures which need to be in place before the Academy can safely reopen".
It remains to be seen how the Lambeth Council subcommittee chooses to now proceed. A petition calling on the local authority to ensure that the Brixton Academy can continue to operate as a music venue has now passed 86,000 signatures.
Tracks from AI music platform Boomy removed from Spotify because of stream manipulation, not any anti-AI agenda
Boomy - which allows people to "create original songs in seconds" and then distribute them to the streaming services - first told users via its Discord server that: "Very recently, Spotify stopped publishing new releases from Boomy. Additionally, certain catalogue releases were removed from their platform".
That followed Universal Music's recent call for the streaming services to remove any AI-created tracks that are the result of unlicensed data-mining, ie the maker or user of the generative AI tool employed to create a track trains that tool by mining data linked to existing songs and recordings without getting permission from whoever controls the existing music
That call came as a flurry of AI-created tracks in the style of existing artists went viral. In particular, the Ghostwriter track 'Heart On My Sleeve', which featured AI-created vocals in the style of Drake and The Weeknd.
Some wondered whether the Boomy statement was linked to Universal Music's call for a clampdown. However, this does not seem to be the case. Spotify has confirmed that the blocking and removal of some Boomy-created tracks is due to evidence of stream manipulation.
Stream manipulation, of course, is where people employ various dodgy tactics to boost the number of streams their tracks receive on the streaming platforms.
Sometimes that's actual artists wanting to boost their stats so that they appear more popular than they really are. But sometimes it's an attempt to scam the system for profit. Because of the way the streaming business model works, you can buy a load of subscriptions, set them up to automatically listen to your own music on repeat, and get more out of the system in royalties than you put in by buying the subscriptions in the first place.
Confirming that "patterns of artificial streaming" had motivated the removal of some Boomy-created tracks, a Spotify spokesperson told Music Ally: "When we identify or are alerted to potential cases of stream manipulation, we mitigate their impact by taking action that may include the removal of streaming numbers and the withholding of royalties. This allows us to protect royalty payouts for honest, hardworking artists".
Boomy itself is not accused of being involved in stream manipulation, rather it's thought that some of the people who created music on its platform then sought to artificially boost the streams of that music by setting up or buying in some stream manipulation tools and tactics.
Stream manipulation - and especially the specific scams designed to pull cash out of the system - have been a talking point for years in the music industry, of course, with regular calls for the services and the distributors to spot and block the scammers. Some reckon that the scale of stream manipulation is higher than many people realise, and with tools like Boomy making it easier to create original music, the number of entities gaming the system in this way is likely to increase.
Obviously, most services and distributors have been working to prevent stream manipulation for sometime at one level or another, as Spotify's statement to Music Ally confirmed.
Though, it's becoming increasingly clear that there needs to be a more collaborative effort between all the services and distributors, otherwise as soon as a scammer is spotted distributing music via one distributor, they'll move their content under new names to another. That need has resulted in more recent efforts to ramp up communications between the distributors on this point.
Many of the scams that seek to profit by gaming the system - rather than just making certain artists look more popular - would actually be killed off if the digital music industry shifted to a so called user-centric model for royalty distribution. Assuming music uploaded by the scammers is only really streamed by the scammer's own computers, under user-centric they could only pull out of the system what they put in, minus VAT and the streaming service's cut.
That said, while record labels are putting ever more pressure on the services and distributors to crack down on stream manipulation, most of them remain somewhat lukewarm to the idea of an industry-wide shift over to a user-centric system.
Merlin signs up to SoundCloud's Fan-Powered Royalties
The user-centric payout model was launched in 2021. Under the scheme, a share of each listener's subscription payment is allocated to the specific tracks they listen to, rather than that payment being pooled with everyone else's and money then being allocated to each track based on consumption share across the platform, as is the case with most streaming services.
"At SoundCloud, we're committed to being artist-first", says the streaming firms's CEO Eliah Seton. "The FPR model makes streaming royalties more equitable, helps artists benefit directly from their fans, and opens the door for more meaningful fan-to-artist connection. I'm THRILLED that Merlin's extraordinary community of independent labels and distributors, and by extension their artists, will now benefit".
Merlin CEO Jeremy Sirota adds: "Merlin is proud to partner with SoundCloud and bring their innovative Fan-Powered Royalties payout model to our global membership. This partnership provides our members and their artists with new revenue opportunities, as well as empowering fans to directly support their favourite artists from across Merlin's global membership. This collaboration will strengthen Merlin's community of independent rightsholders and provide them, and their artists, the tools to build closer relationships with fans".
SoundCloud's user-centric scheme initially only applied to tracks directly uploaded into the platform by music-makers with Pro accounts, not to music delivered by labels or distributors. But some labels are now participating, with Warner Music signing up last year.
DistroKid launches mobile app
"The number one request we've gotten from DistroKid members is a dedicated mobile app", says Matthew Ogle, the company's VP Product. "With music consumption, promotion and increasingly even music creation happening predominately on mobile, we are meeting artists where they're at, on their phones".
The app allows users to upload unlimited new releases to streaming services and social media platforms, view streaming stats from Apple Music and Spotify, and get alerts when they're paid, right from their phone. So long as - for the time being - that phone is an iPhone. An Android version is in development.
Find out more about the app here.
Shed Seven have signed a new worldwide services deal with Cooking Vinyl, ahead of new music set for release later this year. "We are THRILLED to announce that we've signed with Cooking Vinyl", says guitarist Paul Banks. "They're a label that truly values creativity and empowers their artists to explore and develop their craft, which aligns perfectly with our musical vision. It feels like we've found our musical home".
Concord Music Publishing has promoted Brooke Primont to EVP Global Sync. "I am excited to expand my role by bringing together Concord's sync teams around the world, allowing us to broaden the scope and diversify the opportunities that we can offer our songwriters and composers", she says. "The global Concord Music Publishing sync team is truly something special, we have developed unparalleled relationships across the entertainment industry, and it doesn't hurt that our catalogue is full of some of the best songs ever written".
Busted have released the second track in their series of re-recorded songs. This time it's 'Meet You There', featuring pop punk band Neck Deep. "This is one of the tracks we are most excited about releasing, as we have recorded an entirely new arrangement of the song", says Busted's Charlie Simpson. "The original was an acoustic ballad and this new version is a balls out, rock explosion! We are also so happy to have done this with Neck Deep. Ben sounds awesome on it and what is extra special is he told me this was one of his fave Busted songs when he was growing up".
Bring Me The Horizon have released new single 'Lost'.
Ellie Dixon has released new single 'Dopamine'. "I was inspired to write it after reading an article about our brains getting desensitised by too much dopamine from social media", she says. "Even positive experiences need balancing by calm and I have found myself craving stillness. I hope it can help more people to take some time to rebalance and step out of the constant stimulation in the world around us".
Mick Harvey and Amanda Acevedo have released a cover of Pat Benatar's 'Love Is A Battlefield', taken from their album 'Phantasmagoria In Blue', which is out on 1 Sep.
Helena Deland and Claire Rousay have teamed up for new song 'Deceiver', as part of the Mexican Summer label's 'Looking Glass' singles series. "'Deceiver' takes place in the span of an evening during which the shadows of a female friendship are brought to light", say the duo. "Drawing from the clear setting detailed in the lyrics, field recordings taken at a park during the late hours of the evening weave in and out of prominence throughout the song. It's a plea for kindness in spite of there being no resolution or certainty".
Teke::Teke have released new single 'Doppelganger', taken from their upcoming second album 'Hagata', which is out on 9 Jun. "Being of mixed Japanese and French-Canadian culture, I always feel like in some way I'm living two parallel lives", says guitarist Sei Nakauchi Pelletier of the inspiration for the song. "A big part of me is here in Canada, obviously, but another part of me is on the other side of the planet. This could be said about most of us in this band".
Legss have announced that they will release new EP 'Fester' on 9 Jun and have also put out the title track. "The lyrics were written in the summer, when you're sun-drunk and romantic, and the buses look like they're kissing as they cross each other, and everyone's got a cold sore", say the band. "But beneath all the sunny games there's a bittersweet desire to be someone or something else, which was how we felt musically at the time. Everything's different now though, of course".
See How - aka Chris Howell of Pariis Opera House - has released his debut solo single 'Can't Be Me'.
GIGS & TOURS
50 Cent has announced UK tour dates in November to mark the 20th anniversary of his debut album 'Get Rich Or Die Tryin'. The run will hit arenas in Glasgow, Manchester, London and Birmingham and support will come from Busta Rhymes. Tickets go on sale next Friday.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Pixies apologise for turning off alarms
The issue was raised by a Reddit user earlier this week, who reported on a problem that has been occurring on the device they use for their alarm ever since a recent update to Google Assistant, which allowed users to say "stop" in order to turn off their alarms when they wake up.
"For the past few months, I could not figure out why on random days, with seemingly no reason, sometimes my alarm would either not go off or turn itself off very quickly", wrote the Reddit user. "Maybe once every other week or so, I would wake up 30 minutes later on my backup alarm, with no indication as to why the first shut itself off. Well, this morning, I woke up about five minutes before my alarm went off and I have cracked the code".
"The alarm is set to play a Spotify playlist and one of the songs on that playlist is 'Where Is My Mind?' by the Pixies … The first line in the song is 'Ooohhh STOP', with the word 'stop' said very clearly. My [device] has been hearing that 'stop' and turning the alarm off. Since it's a playlist on shuffle, it only comes up every once in a while, so it's not happening every morning".
Conducting some quick research, Android Police found that this phenomenon does not work with other songs that feature "stop" in their lyrics. It's seemingly down to the fact that the word in the Pixies song is spoken, rather than sung, and appears before the track properly starts, so has no musical backing. The device starting the alarm simply hears someone saying "stop" and does as it believes it's being asked.
It's very effective, as you can see here.
Posting a link to the Android Police article on Twitter, Pixies said: "Sorry about that!"
Pixies are not the first act to have a song that plays havoc with technology. Last year, Microsoft software engineer Raymond Chen revealed that, back in the early 2000s, certain laptops would crash when playing the video for Janet Jackson's 1989 single 'Rhythm Nation'.
The issue, it turned out, was the model of hard drive being used in some laptops at the time. By coincidence, Chen explained, the song contained "one of the natural resonant frequencies" for that model of hard drive, making it vibrate and temporarily stop working.