|THURSDAY 16 MARCH 2017||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: California's Supreme Court could now put its collective brains to good use to decide once and for all whether the state's copyright law provides performing rights as part of the sound recording copyright. It's a question of relevance, of course, to those heritage acts who released music prior to 1972 that is still getting played today... [READ MORE]|
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Pre-1972 copyright question heading to California's Supreme Court
As much previously reported, the pre-1972 debate has been rumbling on for sometime Stateside. US-wide federal copyright law only protects sound recordings released since 1972.
Unusually, that copyright doesn't include any 'performing rights', meaning artists and labels have no control over if and when their recordings are performed or communicated, which in turn means broadcasters don't need to get a licence or pay any royalties to the recording rights owners for the music they play. There is, however, a digital performing right, giving labels control when their music is streamed or broadcast via satellite.
What about recordings released before 1972 which are protected by state-level copyright law though? Those laws don't mention any digital performing right, which means those services affected by that right at a federal level - online services like Pandora and satellite broadcaster Sirius - argued that no royalties needed to be paid when they played golden oldies.
But - some artists and labels argued - perhaps there was a general performing right for sound recordings somewhere in some of those state laws, even if they don't specifically say so, and even though that would mean AM and FM radio stations should technically have been paying royalties on those older records all these years, and they haven't.
One time Turtles Flo & Eddie led the legal charge to secure royalties from Sirius and Pandora on pre-1972 tracks of course, launching litigation in three states.
It was in California where the duo secured their big win, with a court there ruling that there probably was a general performing right for sound recordings, even though no label or artist had ever enforced it before. It was a landmark ruling that forced both Sirius and Pandora to agree settlements with the wider record industry, especially once a New York court indicated there was likely a performing right under that state's copyright law as well.
Then late last year an appeals court in New York overturned that latter decision, deciding that it would be silly to suggest there had been a performing right lingering in the state's copyright regime all these years that no artist or label had ever thought to enforce.
Meanwhile, back in California, where the original landmark ruling came in Flo & Eddie's litigation against Sirius, Pandora continues to fight the duo's legal claim against it over those pre-1972 tunes, and now the Nine Circuit Court Of Appeal has asked the state's Supreme Court to rule on the matter once and for all.
The Ninth Circuit said this week that it felt this was a matter on which the Supreme Court should express an opinion. Requesting such an opinion "is warranted if there is no controlling precedent and the California Supreme Court's decision could determine the outcome of a matter pending in our court", the appeals judges wrote. "This appeal not only meets both criteria, but also presents an issue of significant public importance".
They went on: "As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of [these] questions. Resolution of these questions will likely affect the state and industries within the state in a variety of ways, and is therefore best left to the California Supreme Court".
The issue has also now bounced up to the supreme court in the third state where Flo & Eddie sued over pre-1972 royalties, Florida, though the case in California will likely get more attention, partly because it was where the original ruling in the duo's favour occurred, and because - as the Ninth Circuit judges said - it's a state that is home to key players in both the music and tech industries.
It remains to be seen if the California Supreme Court accepts the Ninth Circuit's questions and, if they do, what the answers may be.
Prince heirs already concerned about new estate administrators
As previously reported, there was disagreement between Prince's assumed heirs over which individuals should oversee his estate long-term. However, agreement was reached on which bank should be the corporate administrator, with Comercia last month taking over from the Bremer Trust, which had handled the estate's affairs on a temporary basis since the musician's death last year.
According to Billboard, three of the heirs - Sharron, Norrine and John Nelson - are already objecting to moves by the bank to get wider discretion on how it manages the Prince estate day to day. They also claim that the company isn't making good on promises to involve the heirs in decision making and that they are now questioning the bank's previous claims regarding its expertise in managing entertainment assets.
The three heirs have filed papers with the probate courts expressing their concerns about the bank. It's not clear what the position of the other three assumed heirs is.
Entertainment industry says it'll pay to rescue former MegaUpload data at risk
As previously reported, ever since the US authorities took MegaUpload offline in 2012 there has been much debate as to what should happen to the servers the company rented from various suppliers around the world; or at least those that haven't already been wiped.
The data on those servers is of interest to the music and movie companies, which reckon they need it as evidence for their civil litigation against the old MegaUpload company. The former MegaUpload management, meanwhile, want the data as evidence for their defence to both the civil and criminal proceedings they are facing. Plus there are those former MegaUpload customers who used the file-storage firm to legitimately store their own original content who would quite like to get their files back.
Last year one of the US companies that previously rented server space to MegaUpload - Cogent - said that some of the hard drives on which the ex-firm's data had been stored following the 2012 shutdown were now unreadable simply because they hadn't been used in such a long time. In a legal filing, MegaUpload itself said it had been told that "without the assistance of a computer forensic expert ... Cogent cannot confirm that the data remains extant and uncorrupted".
Whenever the former MegaUpload data comes up, the big question is who should pay for it all to be preserved. The American authorities have generally washed their hands of it all, saying they grabbed enough data in 2012 to use as evidence in their criminal case against Kim Dotcom and the other former MegaUpload chiefs.
Reps for MegaUpload have suggested that it could cover the costs if the authorities would just unfreeze some of the former company's assets. But the music and movie industries - who want those assets to remain nicely frozen so they can be used to pay damages should the copyright owners win the civil litigation against Dotcom et al down the line - have generally objected to that proposal.
To that end the Motion Picture Association Of America and the Recording Industry Association Of America have now put their own proposal to a federal court in Virginia for having some experts check out and try to rescue the Cogent data. They want a company called DriveSavers to do the work. It will try to rescue the data and, if it succeeds, will return it to Cogent for storage without keeping any copies for itself.
Crucially, the MPAA and RIAA says that - if the court goes with their plan - they'll pay DriveSavers' bills. Which all sounds pretty straightforward. Though there remains a dispute over whether or not MegaUpload should ultimately get access to any rescued data, which could further delay things.
Aware of that - and that any further delays could reduce the chances of DriveSavers being able to rescue the Cogent data - the entertainment industry trade bodies wrote in their latest court submission: "As plaintiffs have repeatedly maintained, the only pressing issue for the court now is the recovery and preservation of the evidence on the Cogent drives".
It adds that "questions of who may subsequently access that data, and under what circumstances, remain contested", but, the trade groups argue, that "can be addressed at a later date. Otherwise, potentially critical data will remain at risk of disappearance while the parties continue to argue over an issue as to which no negotiated resolution is possible".
Goldenvoice sues Urban Outfitters over Coachella-branded garb
However, in its bid for the runner up position in that much coveted award, AEG's Goldenvoice is suing retailer Urban Outfitters for selling clothes that use its most famous festival brand, that being good old 'Coachella', without permission.
In the words of the lawsuit filed this week, "trading on the goodwill and fame of plaintiffs' Coachella marks, [the] defendants, who are not authorised or affiliated in any way with plaintiffs, [have used] one or more of the Coachella marks in connection with COACHELLA branded apparel".
Don't be thinking that's it though. Oh no, there's an SEO element to all this too. "Defendants also use one or more of the Coachella marks as a 'keyword' to trigger defendants' online advertising", the lawsuit adds. "And within the meta-data on defendants' own websites, to misdirect consumers searching for plaintiffs and plaintiff's Coachella marks to defendants website which sells defendants' authorised apparel".
Nice try with the meta-data angle Goldenvoice, but no cat, no prize. Good luck with the lawsuit though.
SXSW says those visas were just fine
The festival says that the visitor visas (aka B visas) and visa waiver forms that have seen several acts turned away by officials at the US border while on their way to SXSW are perfectly acceptable for playing at the festival, and that they are working with the authorities to clarify this.
SXSW has now hired immigration lawyer Jonathan Ginsburg to act on its behalf. In a statement, he says: "US immigration law allows foreign nationals to enter the US using a B visa or the visa waiver programme to conduct business, but not to render services. The US Department Of State, accordingly, has long recognised that entertainment groups may enter the US to 'showcase', but not to perform under contract with US venues or other employers".
He continues: "SXSW is working in concert with other US organisations in an effort to ensure that both the State Department and CBP continue to treat showcasing as a valid activity in B or visa waiver status. In the meantime, SXSW remains confident that the vast majority of consular officers and CBP officials understand and respect the need for, and the principle of, showcasing at promotional events such as the official SXSW event".
Although some entertainment visa experts still advise their clients to apply for a proper performance visa whenever playing in the US, even if they are only playing unpaid gigs, SXSW's statement is a firmer commitment from the festival itself to the viewpoint that playing its event on a visitor visa is fully legit.
Though obviously that belief only covers official SXSW showcases, and leaves ambiguity around any other unpaid unofficial gigs played alongside the event, which the festival has always warned might not be allowed under the visitor visa. That being the warning that caused some PR hassle for the showcase festival ahead of this year's edition, and which is set to be revised in artist contracts next year.
Singapore promoter begins offering refunds for Guns N Roses 'cashless' payments system
As previously reported, the show at the Changi Exhibition Centre had numerous problems, which LAMC director Ross Knudson has readily admitted. One issue was a fairly last minute decision to make the site cashless, asking ticketholders to pre-pay money onto RFID wristbands in order to buy food and drink on site. This proved problematic when long queues meant some people couldn't get to stalls to spend their wristband credits, plus some of the bars and food concessions ran out of stock.
There were then issues with ticket holders getting unpaid wristband credit back. The delay in refunds was caused by a dispute between LAMC and RFID provider Sandpiper Digital Payments Asia, both of whom thought the other should handle it.
Earlier this month, LAMC complained: "Sandpiper has transferred to LAMC the cash collected from onsite top-ups during the event in one lump sum. However, Sandpiper has not provided any concert-goer details or a breakdown of the lump sum received in cash. As a result, LAMC, at this stage, does not know who to return the monies to".
Although LAMC is now going ahead with returning unspent wristband monies, it doesn't appear that the dispute has been entirely resolved, even if the promoter is now seemingly in a position to start handing back money to punters.
Sandpiper told IQ in a statement: "[We have had] multiple issues in working with the organiser, especially over the past two weeks. Despite proposing options to them, LAMC [could not] decide on how they can best provide their customers with refunds".
It added: "At this date, the organiser is in full possession of the collected funds, and sales records, so they can best determine how to manage their customer refunds. We therefore wish to inform the public that our contractual duties have been fulfilled and all claims should be directed to LAMC Productions Pte Ltd only".
The website set up for processing refunds requires users to agree to a number of terms and conditions. This includes the transfer of funds and personal data between the two companies, despite this apparently having already taken place.
LAMC is also reserving the right to launch legal action against Sandpiper - something it has threatened to do several times during this process.
EMA announces "too political" new album, releases Ghostship tribute
"Some people have been commenting that I haven't released a record since 2014", she wrote on Facebook. "Well, one's on the way! It's mastered and ready to go. There was a bit of a delay - Matador won't be putting it out. It's too political (which I think especially now music SHOULD be) and the sound is not exactly mainstream".
Instead the new record will be handled entirely by City Slang, which released her debut album 'Past Life Martyred Saints' through its Soutterain Transmissions imprint and the follow-up, 'The Future's Void', in Europe.
"I love working with them", she said of City Slang. "They are a very diverse label and very supportive of the singular and controversial stuff that I think ends up being what EMA does best (they're German! They aren't afraid of politics or music outside of the box)".
'Mainstream and apolitical' doesn't sound like a particularly accurate description of Matador. And the label's co-owner Gerard Cosloy refuted EMA's view in a statement, saying: "From time to time we have to make some unpleasant decisions regarding the label's release schedule (which is more crowded some years than others) and roster size".
He continued: "I don't know anyone - least of all someone as talented and visionary as Erika - who likes hearing, 'We're not putting out the great new album you've spent the last two years on'. But at no point did we discourage her from making a political record, nor was there any mandate to create something that leaned towards the mainstream".
This new song, as the title would suggest, was written in tribute to those who died in the fire that destroyed Oakland's Ghostship venue last year.
"Last December Ghostship burned down and I lost my damn mind", she explains. "I don't even know why it affected me so much but it did. I was a wreck for days. I cried a lot and posted crazy things on Facebook, where my feed was filled with bay area friends mourning and/or trying to figure out if people in their community were safe".
She goes on: "I hadn't lived there for years but it made me realise how important that community had been to me - I knew the person throwing the show (not the douche landlord) who used to come to shows at our venue in west Oakland, I knew the performers, I knew a few who didn't make it out. It was partially the timing, right after the election which was like getting spit on in the face".
Of the song itself, she adds: "We recorded this live in my basement, still improvising the words and timings. I had originally wanted it to be on some sort of Ghostship benefit comp, but hopefully this 100 days benefit will spread out the impact towards all sorts of communities that need it".
Actress announces new album and live show
Of first single 'X22RME', he says: "I did 50 versions of the tune. Different parts were on tape, CD, different old computers and USB sticks, so it was quite intimidating to revisit and complete. The track was in the end built out of three hours of different passages".
The producer is also preparing a new live show, set to be unveiled at London's Village Underground as part of Convergence Festival on 24 Mar. It will, he says "be a test frame for linking circuits using various forms of language - Midi globalised language, Lyrical language, Tikal Graffiti code and various other Synthesiser language - to create one intelligent musical instrument called AZD".
He goes on: "If successful it will produce the first translucent, non-soluble communication sound pill synergised through impressionistic interpretations of technological equipment. This is the music vitamin of the Metropolis".
So that sounds like something worth checking out, if only to work out what any of that meant. Here's the video for 'X22RME'.
Aldious, ASCAP, Imagem, more
Other notable announcements and developments today...
• Japanese metal band Aldious have signed to JPU Records to release their first international album, 'Radiant A'. "We seem to have a growing number of fans overseas", says drummer Marina. "One Japanese TV show followed such a fan who came to Japan to see us live, that's when we started to realise our music was reaching much further than we expected". The album is out this Friday. From it, this is 'Sweet Temptation'.
• US collecting society ASCAP has promoted Elizabeth Rodda to VP International Affairs. "Liz has proved herself", says ASCAP CEO Elizabeth Matthews.
• Music publisher Imagem has announced artist manager Sara Lord as its new Global Head Of Creative Services. "I have worked with Imagem", says Lord. "We'll look at partnerships with brands", adds Imagem UK CEO John Minch.
• Mark Goodier's Wise Buddah company has announced Tim Hammond has its new Managing Director. "I'm very confident ", says Goodier. "I'm THRILLED", adds Hammond.
• The Kinks' Dave Davies and his son Russ have collaborated on their first album together, 'Open Road', which will be out on 31 Mar. From it, this is 'Slow Down'.
Taylor Swift probably isn't setting up a streaming service, but imagining she is passes the time I suppose
According to TMZ, Swift has filed documents to grant her the rights to the name in relation to a website "featuring non-downloadable multi-media content in the nature of audio recordings". Which does sound a bit like a streaming service. Though it also sounds like a website with a few videos on it, so who knows? Maybe she's going to set up a YouTube rival, featuring only videos relating to herself.
Taylor Swift is, of course, totally down on streaming, once describing Spotify as an experiment she wanted no part in. Although her view of streaming music did shift somewhat after Apple Music pretended to care what she thinks back in 2015.
Anyhoo, as we all know, streaming is a tough business model to crack, and no one has yet managed to turn it into a profitable venture as yet. Which is possibly why Swift is also trying to trademark the 'Swifties' name for guitars, guitar picks, guitar straps, drumsticks, organised retreats, educational camps and self-guided online courses.