Archive for Ben Challis

Sony and Dubset conclude ground breaking ‘remixing’ deal

COPYRIGHT
Recorded music

 

Sony Music have recently signed a deal with Dubset to ‘legalise’ remixes of their songs. The project follows on from the Content ID agreement between YouTube and music publishers in 2012. 

 

‘Sampling is just a longer term for theft … Anybody who can honesty say sampling is some sort of creativity has never done anything creative’. Those were the words of The Turtles’ Mark Volman during an interview with the L.A. Times during the 1991 lawsuit his group levelled against hip-hop group De La Soul for their ‘Transmitting Live From Mars’. As a result of the out-of-court settlement, the group’s iconic album 3 Feet High and Rising is still unavailable on major streaming services.

 

At the turn of the millennium, the costs of sampling were so great that scholar Wayne Marshall declared that the costs had led to the ‘giving up’ its firstborn, with the heavily-sampled layers of Public Enemy replaced by the authenticity articulated by band The Roots. Yet, Moses is not yet in the bulrushes.

 

As I pointed out in my recent article on Chance the Rapper, free mixes and mixtapes circulated in the grey area of SoundCloud’s free content have only gained in prominence. This creates an uncertain future for musicians whose back catalogues created their prominence but which exist in a liminal space where they cannot be sold yet could still lead to lawsuits.

 

Dubset, however think they have the solution:

 

Dubset’s MixSCAN® technology parses mixes & remixes into smaller micro audio segments and uses a combination of acoustic and textual fingerprinting technologies, along with proprietary heuristics and pattern analysis technology, to identify all original master recordings used in the mix or remix. This information is then used to build a unique MixDNA track list and copyright structure that can be used to control usage and distribution of content by rights holders, and collection and administration of streaming royalties. 

 

The result of five years of content analysis and algorithm design, MixSCAN® utilizes a library of over 100 million master recordings and dozens of additional authoritative databases to ensure accurate track identification and label/publisher rights holder association. 

 

This approach seems appropriate for reclaiming financial compensation for the use of rights. However, it appears to neglect many of the moral rights important in allowing one’s music to be licensed. In the US, the case of Campbell v Acuff-Rose Music in 1994 dealt with this subject in regards to 2 Live Crew’s sampling of Roy Orbison’s ‘Oh, Pretty Woman’. This case concerned whether this parody was ‘fair use’.

 

In particular, Dubset’s agreement with Sony seems to bypass the US Copyright Act of 1976’s § 107(4) ‘the effect of the use upon the potential market for or value of the copyrighted work’. I.e. it is unclear whether the copyright holder has any say over whether their material is used, they simply benefit financially from its use.

 

However, these problems aside, Sony and Dubset should be applauded for attempting to find a technological solution which could produce commercial rewards for both parties.

By Jonathan Coote. Jonathan is a guitarist, who is currently working as a paralegal after studying music at Cambridge University and King’s College London

 

http://wayneandwax.com/academic/marshall_callaloo_quest.pdf

http://www.dubset.com/mixscan/#intro-2

Mixtape Mistake?

COPYRIGHT
Recorded music, music publishing

 

Three-time Grammy-winning Chicago-native Chancellor Johnathan Bennett aka Chance the Rapper was sued for copyright infringement last week. The suit was filed by Abdul Wali Muhammad on the 12th September in an Illinois District Court. Muhammad is a musician-turned lawyer, who copyrighted the composition of ‘Bridge Through Time’ in 1979. 

Muhammad’s claim rests on Bennett’s sampling of his composition in the track ‘Windows’ from his debut mixtape as Chance, 10 Day. The sampling of the track is quite clear with it forming the beat to ‘Windows’. The only modifications made by producer Apollo Brown were a slight move from 81 to 80 BPM and the track moved down a semitone.

Whilst the use of copyrighted material is fairly obvious, Bennett’s particular approach to the music industry makes the case interesting. Bennett wrote 10 Day after being suspended from school in 2011. ‘Waves’ was released in December 2011 and soon after Complex listed him as one of ‘10 New Chicago Rappers To Watch Out For’ in February 2012.

The mixtape itself was only self-released on DatPiff.com in April 2012. Since then it has been downloaded for free 538,617 times (as of 18th September 2017) from that website. Bennett has continued his independent streak and now operates under Chance the Rapper LLC (joint Defendant in the suit). Like other mixtapes 10 Day has had no commercial release but was accidentally released on iTunes in January 2017.

 

A similar case in 2012 between Lord Finesse and Mac Miller led to an in-court settlement, although, like ‘Windows’, it was released as a free mixtape. The interesting element in the case is the level of damages. Under 17 U.S.C. § 504(a) and (b), 

“The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 

This is where the impact of ‘Waves’ onto Bennett’s later career comes into play. In a music industry where profits are made from branding, merchandise, and ticket sales, calculating the ‘elements of profit attributable to factors other than the copyrighted work’ become difficult. 

The Industry Observer’s Nathan Jolly has described this as the lawsuit ‘that could destroy the hip hop industry’ but it remains to be seen what lasting impact this would have, especially if an out-of-court settlement can be reached. However, if there is one thing to come out of this case it would be to not sample lawyers’ music.

By Jonathan Coote. Jonathan is a guitarist, who is currently working as a paralegal after studying music at Cambridge University and King’s College London

https://www.theindustryobserver.com.au/the-chance-the-rapper-lawsuit-that-could-destroy-the-hip-hop-industry/ 

https://www.courthousenews.com/wp-content/uploads/2017/09/ChanceRapper.pdf

http://www.complex.com/music/2012/02/10-new-chicago-rappers-to-watch-out-for/

“We Shall Overcome” – Free at last!

COPYRIGHT
Music Publishing

 

We Shall Overcome was labelled by the US Library of Congress as “the most powerful song of the 20th century”. It was a unifying anthem for the 1940s labour protests and the 1960s Civil Rights Movement led by Dr Martin Luther King, and came to symbolise the spirit of protest.  

 

When back in 2012, the producers of the film “The Butler”, a film based on the African-American Civil Rights Movement viewed through the eyes of a White House butler, approached The Richmond Organisation (TRO) and Ludlow Music Inc, publishers of We Shall Overcome, to licence the rights to the popular protest song, they were met with a demand for $100,000 for the use of “Verse 1” in the film.  They eventually agreed to licence a three second clip for a payment of $15,000.

Then in February 2015, the We Shall Overcome Foundation (WSOF), a faith based non-profit organisation which took their name from the song, wanted to include a performance of the first verse of We Shall Overcome, sung ‘a capella’, in a documentary being made about the origins of the song.  A representative approached TRO-Ludlow Inc for a quote to licence the synchronisation rights and despite providing on request a vocal sample of the intended usage, WSOF was bluntly refused permission.  They were informed in an email that the song was not available for use and permission was not granted and all rights were reserved under US Copyright Law.  Denied thus, the WSOF were unable to complete their documentary.

Unmoved by this, or perhaps motivated by the rejection, in June 2016 the WSOF together with Butler Films LLC, filed a class action lawsuit against TRO-Ludlow Music Inc (We Shall Overcome Foundation, et al. v. The Richmond Organization, Inc., et al., No. 16-02725), arguing that the copyright in the defendants’ 1960 and 1963 registrations were not valid and that We Shall Overcome has been in the public domain since 1909.  They were seeking a declaration to that effect.  The complaint also raised questions about ownership i.e. authorship of the original song, questioning TRO-Ludlow Music’s right to demand and collect fees for a copyright which they did not own and sought damages for everyone who had paid for a licence.  A comparison was made with the ‘Happy Birthday’ case. The same law firm who brought those proceedings were representing the plaintiffs.  

In their copyright complaint, the plaintiffs argued that We Shall Overcome is an adaptation of an earlier public work We Will Overcome, an African-American spiritual song with near identical lyrics and melody.  The first printed reference to We Will Overcome was in 1909 and no copyright existed in the song at that time.  The folk singer Pete Seeger is generally credited with changing the lyrics from “we will overcome” to ”we shall overcome” during his renditions in the 1940s. 

The lyrics to the 1909 version were:

We ‘will’ overcome,

We ‘will’ overcome,

We ‘will’ overcome some day,

Oh ‘down’ in my heart, I do believe,

We’ll overcome some day.

The defendants however claimed protection on the grounds that Pete Seeger had changed the first verse, altering “will” to “shall” and “down” to “deep”, a change significant enough to amount to a derivative work and capable of protection under US Copyright Law.

We ‘shall’ overcome,

We ‘shall’ overcome,

We ‘shall’ overcome some day;

Oh, ‘deep’ in my heart, I do believe,

We ‘shall’ overcome some day. 

The plaintiffs further alleged that in the 1960 application to register the copyright, Ludlow Music Inc filed an application for We Shall Overcome as a derivative work of a (non-existent) original registration “I’ll Overcome” and that verses 2, 3, and 4 were adapted.  No copyright registration for verses 1 and 5 were claimed.  Similarly in 1963, Ludlow Music, filed another application for We Shall Overcome as a derivative work with new arrangements and words for new verses 6, 7, and 8.  No claims were made to register the well known lyrics and melody to verses 1 and 5 which were identical.  Part of the plaintiffs’ claim was that “… the defendants cannot claim to own a copyright to those familiar lyrics”.

U.S. District Judge Cote found that the origins of the song remain unknown, possibly dating to an 18th century hymn or an early 20th century African-American spiritual song. 

Commenting on the change in the lyrics from “we will overcome” to “we shall overcome”, Judge Cote said that the change was not original enough to qualify for protection. “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial … The words ‘will’ and ‘shall’ are both common words. Neither is unusual” Judge Cote ruled, adding “The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection”.

The result is that Judge Cote’s ruling places the first and fifth verse of We Shall Overcome firmly in the public domain. 

With regard to the plaintiff’s claim to have the 1960 and 1963 copyright registrations declared invalid and fraudulent giving rise to further claims for damages, Judge Cote denied summary judgment saying it would take a trial to resolve those issues.

© George Chin LLB(Hons) 2017

 

Sources:

http://weshallovercomefoundation.org

https://www.theatlantic.com/entertainment/archive/2016/04/we-shall-overcome-lawsuit/478068/

https://www.whafh.com/case/we-shall-overcome-foundation-v-the-richmond-organization-inc/

http://wkzo.com/news/articles/2017/sep/08/we-shall-overcome-plaintiffs-win-key-copyright-ruling/

https://www.nytimes.com/2017/09/08/business/media/we-shall-overcome-copyright.html

https://www.theguardian.com/music/2017/sep/11/we-shall-overcome-civil-rights-anthem-copyright-lawsuit

YouTube-MP3 agrees to shutter

COPYRIGHT
Internet, recorded music

 

YouTube-mp3 has agreed to shut down and hand its domain(s) over to the Recording Industry Association of America (RIAA). With millions of visitors each day, the ‘steam ripping’ YouTube-MP3.org was one of the most visited websites on the Internet. 

Last year, the Germany-based YouTube to MP3 converter website was sued by the RIAA for copyright infringing their rights.  It had also been sued by the record industry in its home country in 2013. Now in an agreed settlement, YouTube-MP3 will shut down indefinitely. The BPI (British Recorded Music Industry) and the IFPI (International Federation of the Phonographic Industry) were also parties to the action, which accused the site of not only copyright infringement, but also circumventing YouTube’s copy protection mechanism, and violating the USA’s Digital Millennium Copyright Act. A report earlier this year by the UK’s Intellectual Property Office and PRS For Music said that stream ripping was now the “most prevalent and fastest growing form of music piracy”. According to an IFPI  report published last year, the site has been reportedly attracting more than 60 million monthly visitors. In the same report, it was mentioned that 50 percent of the 16 to 24-year-old survey respondents used stream ripping services to download music. 

The settlement decrees “a proposed injunction will prohibit the site’s operator from knowingly designing, developing, offering, or operating any technology or service that allows or facilitates the practice commonly known as ‘streamripping,’ or any other type of copyright infringement for that matter.” It also states that the site’s domain name would be handed over to a nominee of the labels. The site is still live at the time of writing, but trying to convert a video to a file generates an error message that reads “There is some maintenance going on. Please try again within the next hour.”

 

Both the RIAA and YouTube-mp3 have now confirmed to the Californian court that a settlement has been reached. Site owner Philip Matesanz has seemingly accepted the labels’ claims (about copyright infringement) and has agreed to pay undisclosed damages. and that the site will also shut down and its URL(s) passed to the RIAA. The court has also been asked to issue an injunction that will ban Matesanz from “knowingly designing, developing, offering or operating any technology or service that allows or facilitates the practice commonly known as ‘streamripping’ [and] knowingly infringing, knowingly causing to be infringed, or knowingly enabling, facilitating, encouraging, promoting, inducing or participating in the infringement of any copyright owned or controlled by the plaintiffs”. The court still needs to approve the settlement, 

https://torrentfreak.com/youtube-mp3-settles-with-riaa-site-will-shut-down-170904/

http://gadgets.ndtv.com/internet/news/youtube-mp3-copyright-infringement-case-shut-down-riaa-record-labels-settlement-1746266

http://www.musiclawupdates.com/?p=7261

“Uptown Funk” hit with one more writ

COPYRIGHT
Music Publishing

 

A complaint has been filed in the US District Court of New York by Lastrada Entertainment Company Ltd, the publishers of “More Bounce to the Ounce” written by Roger Troutman and ZAPP.  The suit is against Mark Ronson, Philip Martin Lawrence, Jeffrey Bhasker, Sony/ATV, Warner/Chappell, Vevo, Spotify, Apple and others.  Lastrada is seeking damages of up to $150,000 per infringement, a permanent injunction against profiting from the alleged infringement, and a jury trial to decide the matter.

 

The latest lawsuit draws parallels with “Blurred Lines” between the estate of Marvin Gaye and Robin Thicke and Pharrell Williams, where the claimants asserted that the respondents unintentionally copied Marvin Gaye’s 1977 hit “Got to Give It Up”. The suit went to a jury trial who decided in favour of the estate and the claimants were awarded $7.4 million in damages and a share of the profits. 

 

The background is that “Uptown Funk” is the lead single from the album of the same name by uber-producer Mark Ronson recorded with Bruno Mars on vocals and released by RCA Records on 10th November 2014.  It was a worldwide hit spending 14 consecutive weeks at No.1 on the Billboard Hot 100 in the US and topping the charts in the UK and several other countries.  It has won two Grammy awards, its video is the fifth most viewed on YouTube just short of 2.7 billion views and the song is the biggest hit of the 2010s (Billboard). 

 

However, even before its release, the songwriters acceded to copyright infringement claims by others. The initial songwriting credits went to Mark Ronson, Bruno Mars, Philip Martin Lawrence and Jeffrey Bhasker.   Before release, two more credits were added recognising Nicholas Williams (aka Trinidad James) and producer Devon Gallaspy, the authors of “All Gold Everything” for sampling interpolation used on “Uptown Funk”.

 

Five months after its release in April 2015, a settlement was reached with Minder Music, the Gap Band’s music publishing company after an infringement claim was made in February 2015 via YouTube’s content management system which triggered a freeze on payments until the dispute was resolved.  The claim was based on the Gap Band’s 1979 hit “Oops Upside Your Head”.  The settlement added four of the Gap Band’s members and producer to the songwriting credits making a total of eleven songwriters credited.

 

In August 2015, the Independent reported that another artist claimed plagiarism.  Serbian band Snezana Miskovic – aka Viktorija – accused them of stealing “80 per cent” of her track “Ulice Mracne Nisu Za Devojke”, translated as “English Dark Streets Are Not For Girls”.  Despite the similarities, it is unclear whether an infringement claim has been made. “The lawyers are working on a percentage”, Vitorija told the Daily Star.

 

In February 2016, TMZ reported that former female rap group Sequence claimed that Bruno Mars used their 1979 hit “Funk You Up” as the inspiration for “Uptown Funk”. The Sequence did not bring a lawsuit.

 

In October 2016, Billboard reported that 80s funk band Collage had filed a lawsuit claiming that it’s 1983 song “Young Girls” was almost identical and indistinguishable from “Uptown Funk”.  Collage are seeking damages and profits.  It is unclear whether this has now been settled.

 

It is not uncommon for writers of hit songs to be approached by other artists and particularly publishers and estates of deceased artists claiming infringement in the hope that the songwriter will choose to make an offer to settle.  Most infringement lawsuits are settled before going to trial which can prove expensive compared to a settlement.  Where a jury is left to decide on the infringement claims, huge awards have been made as in the case of “My Sweet Lord” between George Harrison and The Chiffons, (Bright Tunes Music Corp v Harrisongs Music Ltd (1976)), setting the precedent for infringement lawsuits ever since.

 

© George Chin LLB (Hons)

 

Sources:

http://www.billboard.com/biz/articles/6553523/uptown-funk-gains-five-co-writers

http://www.billboard.com/articles/columns/pop/7964803/mark-ronson-uptown-funk-copyright-more-bounce-to-the-ounce-zapp

http://www.billboard.com/articles/business/6502023/blurred-lines-verdict-how-it-started-why-it-backfired-on-robin-thicke-and

https://www.independent.co.uk/arts-entertainment/music/news/mark-ronson-and-bruno-mars-accused-of-plagiarising-uptown-funk-again-10451682.html

https://www.lexology.com/library/detail.aspx?g=0750fe59-54a6-4cb0-a6ee-7d20b5eb7ef8

https://www.lexology.com/library/detail.aspx?g=f599321e-c1f1-4f11-9fcd-15885d57389b&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-10-02&utm_term=

https://pitchfork.com/news/69413-mark-ronson-and-bruno-mars-sued-over-uptown-funk/

http://www.rollingstone.com/music/lists/songs-on-trial-10-landmark-music-copyright-cases-20160608/george-harrison-vs-the-chiffons-1976-20160608

http://www.tmz.com/2016/02/23/bruno-mars-uptown-funk-the-sequence-funk-you-up-cease-and-desist/#ixzz4130Wn16B

Jackson’s 3D Thriller heads back to court

CONTRACT
Film & Television, performers

 

Ola Ray, the then young actress who played opposite Michael Jackson in the iconic Thriller video has launched another legal against the Michael Jackson Estate on the back of news that director John Landis had reworked the original video as a 3D version of ‘Thriller’ and this short has now been premiered at the Venice Film Festival. Ray previously sued Jackson just before his untimely death in 2009, claiming that she had been promised a 2.5% share of the royalties generated by the iconic music-video-come-short-film, and although she had received some $200,000 this was an under payment. A settlement with the Jackson Estate followed in 2012, reportedly worth $75,000.  Landis settled his own legal action with the Jackson Estate in relation to royalties generated by the video.

 

Ray has now said she wasn’t consulted about the 3D version of ‘Thriller’. She told reporters: “I’m outraged, upset and in shock. When I heard rumours about a possible 3D version, I contacted the director and said ‘we need to talk about this’. But he never responded to my email. They haven’t tried to contact me or negotiate anything. How do they think they can just do this without paying me?”

Ray’s attorney Scott Cole added: “Ms Ray had a central role in this iconic production. Shutting her out of her full royalties all these years hardly honours the memory of Michael or the spirit of the relevant contracts”.

http://www.eonline.com/uk/news/81050/a-legal-thriller-michael-jackson-sued-by-john-landis and http://www.completemusicupdate.com/article/thriller-actress-goes-legal-again-as-3d-version-of-the-video-premieres/ and http://www.rollingstone.com/music/news/12-thrilling-facts-about-michael-jacksons-thriller-20131029 

Public Enemies

CONTRACT
Artists, recorded music

 

Flavor Flav has launched a legal action against his former Public Enemy collaborator Chuck D and various other parties associated of the seminal hip hop group over allegedly unpaid royalties.  That said it seems Flavor Flav and Chuck D will still perform together in upcoming live shows.

According to TMZ, the lawsuit covers unpaid royalties and revenue shares from recording income, publishing, live performances and merchandising income generated by Public Enemy, including monies from the recent album ‘Nothing Is Quick In The Desert’ and money relating to a deal that resulted in Public Enemy action figures being sold.

In the lawsuit, Flavor Flav (real name William J. Drayton) claims that he and Chuck D (real name Carlton Ridenhour) had a long-established agreement that profits from their music, merchandise and concerts would be split between them. Despite that alleged arrangement, Flavor Flav claims that Public Enemy’s business management firm Eastlink has not been sending the earnings he is owed, which have “diminished to almost nothing, and Drayton has been refused accountings, even on the items bearing his likeness,

Responding to the litigation, Chuck D told TMZ: “Flav has his rights, but took a wrong road on this” and opined that his bandmate was focussed on arrangements with a third party merchandiser and changes in the way the music business operates, adding “we will be [together] on a future stage”, adding that Flav “will again be embarrassed admitting on stage about the way it spun out – it’s always this way with him” and that he hoped that Flav “will be woke in rehearsal studio and paying attention to the work we and all the members do worldwide”.

London Evening Standard 31.08.17 and http://www.rollingstone.com/music/news/flavor-flav-sues-chuck-d-public-enemy-camp-over-profits-w500519

Martin Garrix freed from contract with Spinnin Records

CONTRACT
Recorded music, artists

 

A Dutch court has sided with EDM producer and superstar Martin Garrix in a legal dispute with his former label and management firm, Spinnin Records and MusicAllstars. Both of the defendants were founded by Eelko Van Kooten.

 

In August 2015 Garrix said that he was parting company with both of Van Kooten’s businesses and then launched a legal action, accusing his former manager of having provided “false and misleading information” when Garrix, as a teenager, had signed his deals with Van Kooten’s companies.

 

The producer also alleged that, by signing an artist he managed to his own label in 2012, Van Kooten had a clear conflict of interest, and that he had signed a recording deal that was in Van Koote’s own interests, but that Van Kooten should have been representing the interests of his client  – Garrix. Garrix’s father countersigned the recordng agreement with the then teenager (he is now 21). 

 

In the original lawsuit, Garrix sought to reclaim the sound recording rights that had been assigned to Spinnin Records and 4.35 million Euros in damages.  Spinnin counterclaimed, arguing that Garrix’s unilateral termination of contract had cost the label over 6.4 million Euros in revenue. Sme elements of the dispute were settled out of court in December 2015, 

 

The Lelystad court in the Netherlands has now ruled in Garrix’s favour,  agreeing that Van Kooten had  a conflict of interest when he signed an artist he managed to his own record company. The court noted that the Spinnin Records founder could have overcome that conflict by involving a third party arbiter, but did not. The court ruled:

 

During the talks in 2013 about renewing the production agreement with Spinnin Records, there has been conflict of interest due to the CEO’s double hats … [MusicAllStars] had to take action at that time. For example, by assisting Garrix in the negotiations by an independent third party. ”

 

Garrix said in a statement: “I am happy with this outcome. Not only for myself but also for all other DJs/producers out there, since this case was not only about me, but about all of us artists”.

 

CMU Daily reports that the ruling comes less than two weeks after Warner Music announced that it had acquired dance label Spinnin and its sister companies, including MusicAllstars. Van Kooten also announced he was leaving the business following that acquisition. A spokesperson for the label said the company was now reviewing this week’s ruling before deciding whether or not to appeal. Meanwhile, Garrix’s claim for damages is yet to be assessed.

 

http://www.youredm.com/2017/09/20/martin-garrix-wins-lawsuit-spinnin-records-musicallstars/

http://www.billboard.com/articles/news/dance/7972835/martin-garrix-lawsuit-win-spinnin-records

“England’s loudest band will be heard”….in a courtroom in the US

CONTRACT
Film & TV, Artistes

 

The ‘This is Spinal Tap’ litigation has been ongoing for some time and now and it looks like it will go ahead. Last week it was ruled that the case will proceed on the provision that some new paperwork is filed. 

Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner allege that Vivendi, owner of StudioCanal, who in turn is the rights holder of the ‘Spinal Tap’ movie, of deliberate under-payment of music and other royalties. 

The action started when Harry Shearer began the lawsuit against Vivendi, and not long after Christopher Guest, Michael McKean and Rob Reiner followed suit. They turned it up to eleven, and claimed that Vivendi “wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny [the] co-creators their rightful stake in the production’s profits”.

Vivendi called the litigation ‘absurd’ and stated that they planned to have the case dismissed. In the ruling last week the Judge stated that the creators of ‘Spinal Tap’ had not done enough to substantiate the claims of fraud, Judge Dolly Gee explained that: although the creators had “vaguely alleged the elements of a fraud claim, they have failed to plead sufficient facts”.  

Judge Gee also went on to dismiss the claim from Shearer, McKean and Reiner. However, the Judge only dismissed the claim because the trio had filed the claim through their respective companies that the individuals used for their creative projects. Guest was the only one to have filed his claim in his personal name. Shearer, McKean and Reiner will need to re-file their claims be it with the removal of the company names. 

Essentially, this means that the ‘Spinal Tap’ case against Vivendi is allowed to proceed with one or two small amendments. Peter Haviland the legal representative for Shearer, Guests, McKean and Reiner sated “this ruling is an important victory”. Haviland, went on to explain that: “Even in studio-drafted contracts containing a ‘No Third Party Beneficiary Clause’, artists may be determined by a court to be third party beneficiaries who have the right to sue for wrongdoing, notwithstanding such contractual clauses”.

Shearer was very receptive of the ruling, “Vivendi thought we would be made to go away. Well, not today, not tomorrow, nor the next day. England’s loudest band will be heard. But today is a good day not just for us, but for all aggrieved creative artists”.

By Samuel O’Toole www.lawditmusic.co.uk

https://en.wikipedia.org/wiki/Up_to_eleven

http://variety.com/2017/biz/news/harry-shearer-fraud-claim-dismissed-from-spinal-tap-lawsuit-1202576282/

The UK’s competition regulator approves Live Nations takeover of the Isle of Wight Festival

COMPETITION
Live events sector

 

The UK’s Competition & Markets Authority has approved Live Nation’s acquisition of the Isle of Wight Festival, concluding that the live giant’s latest expansion of its festival portfolio does not raise any competition issues. The deal was concluded through the LNE-Gaiety joint venture between Denis Desmond’s Gaiety and Live Nation. Desmond is also non-executive Chairman of LNE. 

 

Prior to the decision, the UK’s festival trade association, the Association of Independent Festivals (AIF) had written to the Competition and Markets Authority (CMA) urging the CMA to widen its investigation into the acquisition of Isle of Wight Festival to include an inquiry into global promoter’s “position in the [UK] market overall”. AIF published a report that showed that Live Nation either owns or holds a majority stake in nearly a quarter (23%) of all UK events with a capacity of over 5,000. In total, Live Nation controls 28 UK festivals, including eight of Britain’s largest outdoor events (Download, V Festival, Reading/Leeds, Parklife, Creamfields, Lovebox and Wilderness) but  whilst this excludes Glastonbury, it is almost three times more than its nearest competitor, Global, which AIF says has a  8% marketshare. Rival AEG promotes the 65,000 capacity British Summer Time. Live Nation has divisions operating in tour and festival promotion, venue management, primary and secondary ticketing, and artist management  and continues to be acquisitive, not least in the UK where it has bought into a number of touring, festival and venue companies in recent years.

AIF’s general manager, Paul Reed, said: “For the sake of its future health and diversity, it is vital that the UK’s live music sector remains open and competitive.” and that AIF had significant concern over “Live Nation’s “deep-rooted influence across the live music sector, from venue and festival ownership” highlighting exclusivity deals with artistes as a major issue.

 

In a statement the CMA said: “The evidence collected indicates that the Isle Of Wight Festival and Live Nation’s existing festivals were not competing particularly closely for customers. After the merger, people will continue to be able to choose between festivals owned by Live Nation and a variety of competing festivals. The fact that festival-goers also choose between going to a festival and other activities will also ensure that Live Nation continues to face sufficient competition”.

CMA did address AIF’s concern over booking talent, saying: “Following concerns raised by third parties, the CMA also investigated whether the merger would enable Live Nation to stop rival organisers of live music events – both festivals and concerts – from being able to book the range and quality of artists that they need to provide a competitive proposition”  concluding: “The evidence indicates that the merger will not materially strengthen Live Nation’s position in booking artists, and that a sufficient range and quality of artists will continue to be available for rival organisers of live music events”.

 

Responding to the CMA ruling, AIF’s Paul Reed said: “Firstly, I want to make it clear that we didn’t start the fire – AIF decided to conduct some research looking into festival market share once the investigation was in motion. We were surprised by the results, with a single transnational entity headed rapidly towards ownership of 25% of festivals in the UK over 5,000 capacity” adding “It is disappointing that the CMA has not take the opportunity to broaden the scope of the investigation into Live Nation’s overall position. That said, I think the research AIF published shines a light on the current and future structure of the live music market and the genuine concerns from grassroots independent festival organisers around consolidation and Live Nation’s vertical integration, with tentacles across all aspects of the business” adding “The question is, how many festivals do Live Nation need to acquire before the CMA take this seriously and give the issues the proper scrutiny they deserve?”

https://www.gov.uk/cma-cases/ln-gaiety-isle-of-wight-festival-merger-inquiry

Audience Magazine, Issue 212, September 2017. 

http://www.efestivals.co.uk/news/17/170914b.shtml