|TUESDAY 4 JULY 2023||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Apple has confirmed that it plans to take its big legal battle with Fornite maker Epic Games to the US Supreme Court, after the Ninth Circuit Appeals Court knocked back a request to consider the case a second time... [READ MORE]|
Apple confirms it is taking its Epic App Store rule dispute to the US Supreme Court
Epic - like Spotify and other app makers - objects to some of the rules enforced by Apple over any apps installed on iOS devices. In particular, it doesn't like the rules that force many app makers to take any in-app transactions via Apple's commission-charging payments platform.
App makers have been seeking to force a change to those rules in various countries through both litigation and lobbying. Epic sued Apple through the Californian courts arguing that the tech giant's App Store rules breach US competition law.
In the main, that lawsuit was unsuccessful, although the judge hearing the case did conclude that one specific Apple rule - the 'anti-steering provision' that prevents app-makers from even sign-posting alternative payment options online - did breach California's unfair competition law. And to than end she issued an injunction ordering Apple to stop enforcing that particular rule.
Both Epic and Apple were unhappy with the judgement in that case, the latter regarding the decision on its anti-steering provision. As a result, they appealed to the Ninth Circuit. Earlier this year, it pretty much upheld the original judgement. Both Epic and Apple then asked for the appeal judges to reconsider the case. But late last week the Ninth Circuit formally knocked back that request.
Which is why the matter is now heading to the Supreme Court. Or, at least, Apple certainly wants the highest court in the US to consider whether the Californian court was right to say that its anti-steering provision was in violation of unfair competition law in that state.
Apple's lawyers also argue that the injunction against its anti-steering provision is unfair because it means a dispute with one app-maker in one state has basically forced it to change its policies in relation to all app-makers in all states. This means the injunction works as if Epic's case had been a class action, even though it wasn't.
"The district court issued a sweeping injunction prohibiting Apple from enforcing its anti-steering rules against all developers of iOS apps offered for distribution in the United States", it said in a new submission to the Ninth Circuit court, "even though the sole named plaintiff - Epic Games - did not seek or obtain class certification, and did not prove that an injunction running in favour of non-parties was necessary to make it whole".
The Ninth Circuit's decision to uphold the injunction, it went on, "departs from Supreme Court and Circuit precedent holding that an injunction cannot be any broader than necessary to make the plaintiff whole, and that relief cannot otherwise extend beyond the named plaintiff without class certification".
Apple was making a new submission to the Ninth Circuit because it wants the injunction against its anti-steering provision - which was paused by the lower court pending the appeal - to remain paused while it tries to persuade the Supreme Court to consider the case.
Confirming it plans to petition for a 'writ of certiorari' at the Supreme Court - basically asking the highest court to take on the case - Apple stated: "The petition will raise substantial questions of law and there is good cause for a stay. The petition will not be frivolous or filed for purposes of delay".
One of the key arguments presented for keeping the injunction paused, pending the petition to the Supreme Court, is the fact that Epic doesn't currently have iOS versions of its apps, because it won't comply with the other Apple rules. So it won't actually be impacted if the anti-steering injunction is further delayed.
Ninth Circuit upholds ruling on Nirvana Circles Of Hell copyright dispute
The image in question was seemingly created in the late 1940s by British writer CW Scott-Giles, depicting Upper Hell as described in Dante Alighieri's 'The Divine Comedy'. Scott-Giles' image then appeared in a Dorothy L Sayers' translation of the fourteenth century poem.
The lawsuit over Nirvana's use of the image was filed in 2021 by Jocelyn Susan Bundy, who says that she is the sole surviving relative of Scott-Giles, who died in 1982, and therefore the successor-in-title to his copyright.
Her lawsuit claimed that Nirvana had been using the image for decades without getting a licence. However, she had only become aware of that fact in early 2021, hence the somewhat late-in-the-day litigation.
In the original judgement on the case, judge Dale S Fischer noted that there was a dispute over who specifically owned the copyright in the circles of hell image.
Meanwhile, because Scott-Giles created the image in the UK, it enjoyed direct protection under UK copyright law, with any enforcement of the rights in the image in the US based on the global treaties that connect the British and American copyright systems. With that in mind, the judge concluded that the ownership dispute would be best resolved in the UK courts.
"A UK court is surely more familiar with and readily able to apply UK law to UK copyright ownership disputes", the judge ruled, dismissing Bundy's lawsuit, albeit on the condition that the defendants "submit themselves to the jurisdiction of a UK court" should any legal action be pursued there.
Bundy then appealed. And, according to Law360, during oral arguments earlier this year, her lawyers argued that the two other people who might also have an ownership claim in the copyright in the Scott-Giles image had both submitted declarations confirming they are not asserting any such claim.
However, the Ninth Circuit ruled: "Even though two witnesses have provided declarations disclaiming ownership of a UK copyright interest in the illustration, Bundy has yet to present affirmative evidence proving sole ownership or ownership at all".
And, the court added, Fischer was right to conclude that the best place to confirm copyright ownership is the country where the work has direct copyright protection.
The appeal judges concluded: "Material evidence and witnesses related to ownership are in the United Kingdom, and ownership is a critical threshold issue that a UK court is more equipped to resolve. Moreover, it is possible for Bundy to enforce a UK judgment in the United States".
Spotify's unofficial activity at 2022 Essence Festival was "intentional exploitation of black culture", says lawsuit
The annual event staged by Essence magazine - which takes place over the Fourth Of July weekend - is billed as "the nation's largest annual gathering of African-American musical talent featuring an unprecedented weekend of cultural celebrations, the Essence Empowerment Seminars and nightly musical performances".
Back in 2019, Spotify had an official presence at the event by operating what it called The House Of Are & Be. Named after the streaming firm's Are & Be playlist, Spotify described the venue it ran alongside the festival as "a multi-storied tribute to black women in R&B and podcasts that includes an art gallery showcasing musicians and podcasters, recording studio, and performance space".
Spotify repeated all that at the 2022 edition of the Essence Festival but, it seems, unlike in 2019, that time The House Of Are & Be was not run as part of an official partnership with the festival itself. However, festival organisers argue, it was very much presented as if there was an official alliance, like in 2019, which means Spotify was benefiting from the festival's brand without paying for the privilege.
According to The Guardian, in their lawsuit, the festival's organisers claim that - when Spotify worked with the Essence Festival in 2019 - the plan was for that to lead to a longer-term partnership between the streaming firm and the event. However, then the COVID-19 pandemic forced the cancellation of the festival's 2020 edition, and talks about that longer-term alliance didn't proceed.
By running The House Of Are & Be alongside Essence Festival in 2022 and incorrectly implying official involvement in the event, the streaming firm - says the lawsuit - caused "brand dilution, brand confusion, damage to business reputation and loss of business opportunity".
Not only that, but legal rep James Williams goes further, stating: "The unsanctioned Spotify … action … is yet another example of the historic, intentional exploitation of black culture, black [intellectual property], black creators, black businesses and black equity".
"We must protect and celebrate those companies that collaborate with our businesses to create and return value in our communities", he goes on, "and defend our rights and value against those that chose to exploit our businesses and community".
Universal Music buys majority stake in Thai music catalogue
An official announcement confirms that the deal is worth around $45 million, and will see Universal and the RS Group's music business together manage rights in relation to more than 10,000 tracks.
More than 960 artists appear in the catalogue including Dan-Beam, James Ruangsak Loychusak, Parn Thanaporn Wagprayoon, Stone Metal Fire, Ble Patumrach, Lydia Sarunrat Deane, Thanapol Intharit and Four-Mod Kamikaze.
Says Surachai Chetchotisak, CEO of the RS Group: "We are glad to partner with UMG as a means to expand opportunities for Thai music in the international market. It will also play a significant role in driving Thai soft power and mark the first stepping stone for future projects and businesses. This joint venture will create opportunities within music industry and strengthen RS Music even further".
And Calvin Wong, CEO of Universal Music Southeast Asia, adds: "I am extremely excited about the expanded role that this partnership will enable UMG to play in such a fast-growing and important music market. Thailand has huge untapped potential, with consumers who desire ever more quality music. Today's announcement will provide UMG with the scale to make a meaningful impact within the Thai music ecosystem and to benefit from its continued growth".
IMPALA presents Outstanding Contribution Award to [PIAS] founders
IMPALA notes: "Over the last four decades, [PIAS] has grown from a vinyl record importer on behalf of UK independent record labels into a key European and global recording, marketing, and distribution outlet. Currently with nineteen offices and 280 employees active globally, [PIAS]'s engagement within the independent music company sector speaks volumes".
Lambot and Gates were also founders of IMPALA itself back in 2000, and have been very involved in other indie community initiatives, like indie label digital rights agency Merlin and the globally focused WIN.
Since 2021, [PIAS] has also had a partnership with Universal Music, which resulted in the major taking a 49% stake in the company last year. However, at the time that deal was announced, [PIAS] was very keen to stress that "[we] remain fully independent and ... founders Kenny Gates and Michel Lambot will retain majority control of the company – Universal Music Group will have no seats on the company's board".
Confirming the presentation of the award to Lambot and Gates, IMPALA Executive Chair Helen Smith says: "Michel and Kenny's story is an inspiration to all emerging independents starting out in the sector. The contribution of [PIAS] to the European music sector is totally unique".
"The amazing 40th anniversary re-releases speak for the artists and great music", she goes on, "and IMPALA, Merlin and WIN speak for their approach on collaboration making everyone stronger. This award honours their deep passion and dedication".
Lambot adds: "Back some 25 years ago, we had the idea to combine forces of a handful of independent companies to increase our market leverage and playing field. That sounded crazy and naive: trying to unify independent companies owned and run by people fiercely independent was antinomic".
"And now getting an award by IMPALA, which has become a kind of institution, makes me feel so proud and so happy", he continues. "The recognition by our peers of what we did all these years and are still doing, Kenny and myself, as [PIAS] on one hand, and for the independent world on the other hand, is very moving".
Meanwhile, Gates says: "Our goal at [PIAS] has always been to expand our dreams by creating a company of holistic values that reflects a pan-European diversity. It's been an incredible journey of constant adaptation, and we couldn't receive this award without thanking all our staff and friends".
Shabaka Hutchings explains decision to stop playing saxophone at the end of 2023
Hutchings first announced his plans to take a "hiatus" from the instrument on New Year's Day, telling fans that - once this year is up - "I don't know when or if I'll return to the big metal horn".
Now, six months on from that announcement, he has provided a lengthier explanation of his decision, writing on social media: "What I do on stage when I play the sax is intense both physically and emotionally".
"I'm able to undertake the kind of intense touring which finds me on the road consistently", he goes on, "treating the performance of a spiritual practice as a commodity to be sold repeatedly because of my enthusiasm towards what I'm doing. The moment this enthusiasm wanes in the slightest is the moment it's time to reassess artistic orientation. This is the point I'm at".
"The safe option would be to just do less gigs on the sax and not take the extreme option of ending my association with it", he admits. "Unfortunately I'm not that guy".
"I'm deeply grateful to be able to channel energy from a source that resides outside myself while undertaking the ceremony of ritual performance. I take my role in being a custodian of energy that rouses the spirit seriously and when called to make a sacrifice for an artistic purpose that I sense deep in my intuited mind's eye I choose to follow with humility and gratitude to a higher power".
Noting that he still has numerous gigs with a variety of projects in his schedule before the year is out, he adds: "I intend to commit myself fully to these performances and reach for everything possible in my musical capacity on the instrument so that by the close of 2023 I can rest assured that I've 'said' what's needed on that instrument for this time of my life".
But what will Hutchings do once he's laid down his sax? Well, he sighs: "Because it seems like on the internet things need to be spelled out explicitly or else messages get distorted and mis-spread I'll emphasise the fact that I'm only stopping the sax".
"There are many other instruments which I play", he adds. "I've nearly finished the production of my first full solo album which features many of these and will be released early next year. For now, however, I'll enjoy every moment I have left with the big, loud, shiny horn and I hope you do too".
For the next few months, Hutchings' time will largely be taken up by performing with The Comet Is Coming at festivals around the UK, elsewhere in Europe and in the US.
Artist services and rights management company Interstellar has announced the appointment of Vickie Nauman to its advisory board. "Interstellar is a business that has impressed me from the off, in terms of the calibre of the team, its commitment to its clients and, importantly, the passion they have for music and its creators", she says. "The company sits right at the intersection of music and innovation, so I hope that it will benefit from my experience as it enters its next phase of growth".
NZCA Lines will release new EP 'Universal Heartbreak' on 22 Sep. Out now is new single 'Push Reset'. He's also announced a show at London's Lower Third venue on 21 Sep.
Fakear is back with new single 'Healing'. He says of the track: "'Healing', it speaks for itself. This track feels like therapy, an encouragement to dance and let go. I have never worked as much as for this album and this tour. And it feels amazing to be enjoying the fruits of this labour".
Knife Bride have released new single 'Smother (Make Me Suffer)'. The track is taken from their new EP 'Don't Dream Too Much', which is out on 25 Aug. The band will play a free EP launch show at Blondies in London on 1 Sep.
GIGS & TOURS
The Darkness have announced UK and Ireland shows in December to mark the 20th anniversary of their debut album 'Permission To Land'. Each performance will include, says frontman Justin Hawkins, "every song from our debut album faithfully reproduced - with additional clam notes and meanderings - in the order in which they appear on the record", as well as other fan favourites. Also, "it will be the best show you'll see this year", he adds.
AIM's Independent Music Awards are set to return to the Roundhouse in London on 26 Sep. "This year's awards will be a celebration of the UK's independent music community, and a recognition of the hard work and creativity we've seen over the past year from independent artists and the teams behind them", says AIM CEO Silvia Montello. Early-bird tickets are currently on sale for the trade group's rightsholder and distributor members, and friends of AIM, before tickets go on general sale on 12 Jul.
Submissions are now open for this year's Oram Awards, which recognise women, trans and non-binary artists working in sound, music and related technology. They will close on 15 Aug, with the six winners - who will receive mentoring and PRS Foundation bursaries - announced at King's Place in London in November. More information on applications and eligibility here.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Ed Sheeran demo CD sells for £8000
Titled 'Spinning Man', the CD was the first lot in a music memorabilia auction held by the Essex-based Stacey's Auctioneers yesterday, with the auction house anticipating a sale somewhere between £5000 and £8000.
Recorded in December 2004 and January 2005, the fourteen song collection was one of a number of self-released records put out by Sheeran prior to him signing with Warner's Atlantic Records in 2011.
Although Sheeran has gone to great effort to try to ensure that no one ever hears 'Spinning Man', this is not the first time a copy has gone up for sale.
In 2020, a copy was sold for £50,000. This despite the fact that Sheeran's representatives insisted that particular copy was "officially counterfeit". That was down to the title being handwritten on the CD itself, rather than appearing on a sticker, as was the case on the other 20 copies.
In his 2014 book 'Ed Sheeran: A Visual Journey', the musician wrote: "There are probably 20 copies of 'Spinning Man' in existence, and I have nineteen of them. I don't want anyone else to get hold of a copy! Most of the songs were about a girl called Claire. She was my first love when I was thirteen".
It remains to be seen what the new owner does with the CD, but Sheeran is presumably hoping that none of the tracks make their way online.