|WEDNESDAY 12 APRIL 2017||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The ongoing debate over whether or not we should put MegaUpload's Kim Dotcom in the big pile with all the other fugitives continues. The founder of the often controversial one-time file-transfer platform is now petitioning the US Supreme Court over his classification as a 'fugitive' by the American authorities. It's an important classification, because it's being used to stop Dotcom from reclaiming millions in seized assets and funds... [READ MORE]|
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Kim Dotcom goes to US Supreme Court to fight his 'fugitive' status
As much previously reported, in early 2012 the US authorities shutdown MegaUpload on copyright infringement grounds, requesting that Dotcom and a number of his then colleagues in New Zealand, and elsewhere, be arrested, while also seizing most of the company's assets.
All sorts of legal wrangling has since taken place around the MegaUpload case, with the US still to successfully extradite Dotcom et al to face criminal copyright and other charges in the American courts. One strand of that legal wrangling has been Dotcom's efforts to reclaim some or all of the assets and funds seized back in 2012.
Last year the US Fourth Circuit Court Of Appeal backed a lower court ruling saying that Dotcom should not be reconnected to those assets, mainly because they consider the former MegaUpload chief a fugitive. But Dotcom's lawyer hit back at that argument, saying that his client wasn't a 'fugitive', but was exercising his legal right to fight extradition to the US.
Speaking to Reuters at the time, lawyer Ira Rothken said: "This opinion has the effect of eviscerating Kim Dotcom's treaty rights by saying if you lawfully oppose extradition in New Zealand, the US will still call you a fugitive and take all of your assets. We think it's American imperialism at its best, and we're hoping the Supreme Court or the larger court circuit will see it for what it is, and reverse it".
In their new petition to the US Supreme Court, filed last week, Team MegaUpload argue that the decision to stop Dotcom et al from reclaiming their assets because of so called "fugitive disentitlement" sets a dangerous precedent, in that it allows American authorities to seize the assets of foreign nationals on the basis of as yet unproven claims.
The legal filing says: "If left undisturbed, the Fourth Circuit's decision enables the government to obtain civil forfeiture of every penny of a foreign citizen's foreign assets based on unproven allegations of the most novel, dubious United States crimes".
It goes on: "The government can do so without affording a foreign defendant any opportunity to challenge in court whether the foreign assets are traceable to criminal conduct, whether the government's allegations are sufficient to establish the charged crime, or even whether the charged 'crime' is a crime at all".
The lawyers conclude: "In sum, this case poses questions that have divided the lower courts and carry important implications for federal jurisdiction, constitutional law, statutory interpretation, civil procedure, and international relations".
It remains to be seen if the Supreme Court takes the case and, if so, how it rules.
Sirius hits out at labels and others for trying to intervene in Flo & Eddie settlement
As much previously reported, in America sound recordings released before 1972 are protected by state rather than US-wide federal copyright law. That has resulted in all sorts of legal wrangling over whether or not online and satellite radio services - which, unlike American AM/FM radio stations, are obliged to pay artists and labels royalties under federal law - are likewise obliged to pay royalties when they play state-protected pre-1972 tracks.
The debate over such royalties has been rumbling on for years, and is summarised in this CMU Trends article here. The key legal case has been that led by artists Flo & Eddie, who were in 1960s band The Turtles. They scored a big win in the Californian courts, on the back of which both Sirius and Pandora reached deals with the major record companies on this issue. Sirius subsequently reached a deal with Flo & Eddie as well. Their litigation had become a class action, so the deal - which is dependent on the outcome of various outstanding appeals and hearings in various states - is subject to court approval.
Although that deal only directly affects artists who are members of the class, various organisations representing American labels and musicians, and collecting society SoundExchange, have raised concerns about the wording of some elements of the settlement agreement. They fear that Sirius is hoping to use the settlement to argue for lower royalties overall when the US Copyright Board next decides what rates the satellite broadcaster should pay the record industry on post-1972 recordings via its SoundExchange licence.
Sirius, and many online radio services, rely on a compulsory licence available under American law to access sound recordings. That compulsory licence obliges labels to license satellite and online radio services at rates set by the statutory Copyright Royalty Board.
Rather than just picking a random royalty rate out of the air, the CRB - which is yet to set the royalties that Sirius should pay between 2018 and 2022 - hears arguments from both sides as to what a fair market rate would be. You know, before it randomly picks a royalty rate out of the air. Some fear that the satellite broadcaster now plans to use its class action deal with Flo & Eddie et al to argue that the market rate for the record industry's content is lower than what it currently pays.
According to The Hollywood Reporter, the line that is causing most concern in the Flo & Eddie settlement reads: "The parties agree that [the royalty rate] represents the rate that has been established by negotiations between a willing buyer and willing seller in a competitive market for pre-1972 sound recordings, and shall be precedential in all future and/or pending proceedings (including rate making proceedings and arbitrations) relating to sound recordings".
Wary about the precedent that agreement could set, the trade groups and SoundExchange have filed an amicus brief to the judge considering the class action deal. In it they say: "[It] is clear from the settlement's face, as well as obvious marketplace facts, that the proposed royalty rate is well below the market rate for sound recordings, particularly classic sound recordings that are among the world's most valuable. Far from having anything to do with the settlement's economic terms, this language just gives Sirius fodder for future rate-setting proceedings - at the expense of copyright owners and recording artists".
Sirius has now disputed the claims made in the amicus brief, while also insisting that the trade groups behind it have no role in the case and shouldn't be allowed to intervene. The broadcaster said the authors of the amicus brief "are not class members and have no legitimate interest in this matter" and that their attempted intervention is neither "legitimate, relevant, or helpful" in helping the judge to decide whether to approve the settlement in the class action.
Notably, the Sirius filing doesn't say that the satellite broadcaster won't present this settlement as evidence in the next CRB rates review, and those behind the amicus brief will likely feel that proves their point. It remains to be seen how the judge overseeing the Flo & Eddie case responds.
Shep Pettibone sues Warner over withheld Vogue royalties
As previously reported, Pettibone and Madonna were accused by US company VMG of illegally using a brief sample of a 1970s recording called 'Love Break' on 'Vogue'. Last year, the long-running case concluded when an appeals court upheld an earlier ruling that said that, at less than a quarter of a second long, it was unlikely that the average listener would even notice that the sample had been used.
However, the appeals court did overturn the lower court's decision to make VMG pay the other side's legal costs. With Warner having paid for the lawyers, Pettibone's new lawsuit says the company is now attempting to claw back over $730,000 from his royalties. Deductions, he says, which are not permitted under his contracts with the mini-major.
According to The Hollywood Reporter, Pettibone alleges that Warner Music and its music publisher Warner/Chappell "have admittedly withheld and failed to pay Pettibone royalties owed to plaintiff for its defence of the VMG Salsoul lawsuit despite plaintiff's demand that they pay these royalties to him, and despite giving them notice of breach".
Warner has said, according to the lawsuit, that it is entitled to deduct royalties in this manner due to an indemnification agreement with Pettibone. However, Pettibone says that this clause does not apply to claims such as VMG's, which have been dismissed.
Suing for breach of contract, Pettibone wants court clarification that he is correct on this latter point. He also wants the withheld royalties to be paid over to him, which he says come to more than $500,000.
Decision on charging Louis Tomlinson over LAX incident delayed
As previously reported, the One Direction member was released on $20,000 bail at the beginning of March after being arrested following an incident involving the photographer and two fans.
While Tomlinson was involved in a tussle with the paparazzo, his girlfriend Eleanor Calder got involved in a separate scuffle with two 1D fans. Tomlinson intervened there too - exasperatedly shouting "what the hell is happening?!" This was eventually broken up by airport security, and Tomlinson was subsequently placed under citizens arrest (which is apparently a thing that actually happens), amid reports that both the photographer and one of the fans required medical treatment.
A legal rep for the singer said that he was merely trying to protect his girlfriend, which a video of the incident seems to corroborate. However, a hearing on 29 Mar to consider charges against the singer was postponed, and now prosecutors have said that it may take much longer for the case to be resolved.
In a statement, a spokesperson for the LA City Attorney's Office said: "No decision has yet been reached in that matter. It is still under review. Our office has up to one year to file charges from the original incident".
Alanis Morissette refuses to accept former business manager's apology for fraud
As previously reported, earlier this year Schwartz pleaded guilty to stealing $7 million dollars from a number of his clients, the bulk of which - almost $5 million - was embezzled from Morissette's accounts. He is also admitted to failing to pay tax on the money he stole.
Originally Schwarz claimed that the money had been invested in an illegal marijuana growing operation, which was why there was no paper trail for the missing funds. However, he eventually admitted to stealing the cash to pay for "a lavish lifestyle". He now awaits sentencing next month, facing anything between four and 23 years in prison.
In his letter, published by the Hollywood Reported, Schwartz said that he had taken the money to cover escalating gambling debts.
"At first, I 'borrowed' a little from clients, with the hopes that I would pay them back if I won that night's bet", he writes. "That snowballed, and as I kept losing, I kept stealing. I kept telling myself that I just needed one lucky break, and I'll pay them back. That lucky break never came".
Blaming the stress of his job on his spiral into gambling addiction, he adds that he's glad that he was eventually caught, despite now facing a lengthy jail sentence. "When I was finally caught, a bright spotlight shined on my deplorable conduct. I could not hide any longer and hit rock bottom. By seeing how pathetic I had become, I finally got the courage to ask for help".
He goes on to say that he "will spend the rest of my life asking for forgiveness and making amends to everyone I have hurt". In the case of Morissette, he's certainly not there yet.
In a statement responding to Schwartz's letter, the musician said: "I would be apprehensive to believe any words that come out of Jonathan Schwartz's mouth".
The fraud was initially uncovered during an audit of Morissette's accounts. Before the criminal charges against Schwartz, she sued him over the missing money last May. They later reached an undisclosed settlement.
AEG adds content production studio to its brand partnerships division
Not that there'll be any blood. Well, AEG is big in sport too. And sometimes sporty shenanigans result in some blood, don't they? Gigs less so. Though it can happen. And what if AEG does a branded content partnership with United Airlines? We all know it likes blood. Preferably gushing out of the bodies of its customers. I can see the promo video now: a long line of sports people and popstars, all being dragged along the floor until they bleed.
Anyway, AEG Studios is the new branded content division of the entertainment firm, sitting alongside all the company's existing brand partnership gubbins. The new unit will create content for AEG itself, and for its brand clients, where content is the thing that will turn a run-of-the-mill nothing-to-see-here tour or venue sponsorship campaign into a run-of-the-mill nothing-to-see-here tour or venue sponsorship campaign with a YouTube channel. Hurray!
And now, a quote. "Our partners are asking for great storytelling through original content; we have listened and are now building a world-class production company with the most innovative creators in the sports and entertainment business," says AEG's chief brand partnerships chap Andrew Klein. "We're known for bringing our partners' messages to life through cutting-edge campaigns. AEG Studios will amplify our ability not only to solve our brand partners' needs, but also help them engage with their target audiences by bringing them the one-of-a kind pieces of content and creativity that only our network of talent, assets and resources can provide".
Dailymotion to relaunch down-playing UCG
Like YouTube, Dailymotion has been criticised by the entertainment industry for dwelling in one of those pesky safe harbours, so that it isn't liable when its users upload other people's content without permission. Although it removes that unlicensed content when made aware of it, it still enjoys the traffic generated by said videos until they are spotted by whichever music, movie or media firm owns the rights in the material.
That Dailymotion is on the list of safe harbour exploiters that have been much criticised by the safe-harbour-hating music industry in recent years is slightly ironic given that since 2015 the video site's primary owner has been Vivendi, aka the owner of Universal Music.
Presumably aware of that irony, the relaunch of the video site is likely an attempt to have Dailymotion taken off the music industry's safe harbour hate list. User-generated content - or user-stolen content if you prefer - won't be axed completely, but the site will rejig to very much put videos by official content partners front and centre. The revamp will also see Dailymotion work more closely with its sister companies in the Vivendi group, including TV business Canal Plus as well as Universal Music.
Canal Plus CEO, Maxime Saada, is also heading up the all new Dailymotion, and he was keen to big up the curation elements of the revamped video site, which will help users identify the most relevant videos of the day. Daily. To get some daily motion, see.
The company adds that its new platform was built from scratch, and will also prioritise that live streaming thing that everyone's trying to work out what to do with. In terms of how ad income will be shared with the site's roster of official content partners, terms have not been revealed but, according to Variety, Saada said "we intend to be more generous than existing platforms". YouTube's standard revenue share rate is 55% to the content creator.
Line-up confirmed for CMU Insights @ Canadian Music Week
New to the line up are three interviewees, each of whom will discuss one of the issues with CMU MD and Business Editor Chris Cooke. Vicki Nauman from CrossBorderWorks will discuss the challenge of converting more freemium users into paying subscribers; Georges Tremblay from Believe will discuss how artists and labels can ensure sustained listening of their music; and Tomas Ericsson from AMRA will explain why good data holds the key to the accurate and efficient payment of streaming royalties.
The session will conclude with a debate about the big transparency issues that artists and managers are increasingly campaigning about. MMF UK CEO Annabella Coldrick will explain the work her organisation is doing to get more clarity about the industry's streaming deals for British music creatives, while artist managers Graham Stairs and Jake Gold, and entertainment lawyer Angelika Heim, will discuss the transparency problem from a Canadian perspective.
Read this five point guide to what CMU@CMW will be covering here, and check out the schedule of the session here. 'The Creators' Guide To Digital Dollars' takes place on day three of the Canadian Music Week conference, on Friday 21 Apr, from 10.00am-1.00pm, in Sheraton Hall C.
Gorillaz release 'mixed reality' app for global listening party
There's a narrative element to the whole thing, but I guess the bit that people are going to be most interested in is the 'Humanz House Party'. This geo-specific aspect of the app will allow users to listen to the band's new album in full at 500 locations around the world at some point ahead of the release of new album 'Humanz' later this month.
If this is all making your head spin, you can access something a bit less confusing (assuming podcasts aren't beyond you too) by listening to the latest episode of 'Song Exploder'. On it, Damon Albarn deconstructs new song 'Andromeda'.
One Liners: Ticketmaster, Kendrick Lamar, Paloma Faith, more
Other notable announcements and developments today...
• Glassnote Records has signed Ider to its roster. "We are very happy, proud and excited", Glassnote UK MD Liz Goodwin tells Music Week. "We are proud", disagrees founder Daniel Glassnote.
• Former Head of Film & Television at Universal Music Publishing Becca Gatrell is launching a new company, Wow & Flutter. It will provide a flutter of publishing, sync and music supervision services. Wow!
• CD Baby is continuing its expansion into South America, hiring Martín Liviciche to rep the company in Argentina. "We are already one of the largest distributors in Latin America", says CD Baby's Manager Of Global Marketing Tracey Gill Miller. So that's nice.
• Ticketmaster UK has made three new hires for its sales team. Bonita McKinney is promoted from a client services role, Holly Watson joins from TicketZone, and Jason Boardman moves over from Ticketmaster's TicketWeb division.
• Kendrick Lamar's new album is called 'Damn'. It has really terrible artwork.
• Tinie Tempah has released the video for 'Shadows', featuring Bipolar Sunshine.
• Girlpool have released new single 'It Gets More Blue'. Their new album, 'Powerplant', is out on 12 May.
• Dengue Fever have released a video for 'One Thousand Tears Of A Tarantula' from their 2005 album 'Escape From Dragon House'. Why? Because they've just acquired the rights in their first two albums and they're reissuing them next month. That's why. Happy now?
• SaraSara has released the video for 'Sun' from her 2016 album 'Amor Fati'.
• Paloma Faith will headline the Caudwell Children charity's Butterfly Ball on 25 May. Fleur East will also perform, and Peter Andre will host the whole thing. More info here.
• Goat will play Brixton Academy on 29 Jul, joined by The Moonlandingz and Jane Weaver. Tickets on sale on Thursday.
Kate Bush doesn't even want to play stupid Coachella
That Bush might want to play the festival was extrapolated from a recent article in The New Yorker on the ins and outs of how the event is run. Describing a typical negotiation with Coachella founder Paul Tollett, Marc Geiger of booking agency WME said: "I'll say, 'Kate Bush!' and he'll go, 'No!' and we'll talk through it. I'll say, 'She's never played here, and she just did 30 shows in the UK for the first time since the late 70s. You gotta do it! Have to!' 'No! No one is going to understand it'".
It did seem likely that Geiger was describing a hypothetical situation - Bush having shown little to no interest in touring her 2014 Hammersmith Apollo show 'Before The Dawn' - but it's still interesting that he came up with that example. Perhaps he did put her forward tentatively in 2015, or perhaps he just plucked her name out of thin air while talking to the New Yorker's journalist. Either way, to give some credit to both Tollett and his audience, a highly theatrical multi-media show like the 'Before The Dawn' concert would not work at a festival at all. As has now been noted by Bush's people too.
In a statement, a spokesperson said yesterday: "It was never Kate's intention to play any more shows than she did in London. The show was conceived for a very specific type of venue. No discussions were ever had with Kate about playing any festival, including Coachella".
So there you go. Although, after all the publicity that brief portion of a very long article has got, we should probably now start taking bets on whether or not Coachella can coax Bush into headlining next year's festival. Coachella co-owner AEG runs West London's Hammersmith Apollo after all, it could just relocate the whole building to the festival's site in California.