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Today's music business news

TOP STORY

Civil rights lawyer Ben Crump preparing legal case on heritage artist streaming royalties

Prominent American civil rights lawyer Ben Crump has confirmed he is working on what could be a major legal challenge regarding the way record companies pay streaming royalties to heritage artists.

Speaking to The Times, Crump says: “R&B artists began contacting me saying they believed they were being discriminated against and the music industry was not compensating them fairly. We soon discovered the music industry and the record companies are actually equal-opportunity oppressors - they oppress all the artists, whether they are black, white, hispanic, it doesn’t matter".

There has been much criticism within the artist community over the years about how many record companies interpreted pre-digital record contracts in the context of digital income. Where contracts do not specifically mention how digital revenue should be shared between label and artist, labels need to decide what royalty rate to apply.

Many labels have been accused of unilaterally deciding to apply CD royalty rates - and sometimes even deductions and discounts that applied to CD sales - to digital income, meaning artists end up seeing a small cut of the streaming money generated by their recordings.

There has been much debate as to the legal right of labels to unilaterally interpret old contracts in a self-serving way. Some old record contracts distinguished between sales and licensing income, with a higher rate paid to the artist on the latter. Yet some labels still pay the lower sales rate on streams, even though streaming income clearly stems from licensing deals.

Streaming also exploits an element of copyright called the making available right, which was only added to copyright law in the 1990s. Some have argued that labels should have got explicit permission from each artist to exploit that new element of the copyright, which would have provided the artist a chance to negotiate a new better royalty rate around digital. But in most cases that didn't happen.

There have been some lawsuits in some countries challenging decisions made by labels in this domain, including class actions in the US.

In some cases this has resulted in royalty rates being increased, and certainly some bigger name artists have reached their own confidential settlements that resulted in them getting a bigger cut of the money. And some indie labels have chosen to pay modern streaming royalty rates across their entire catalogues, so heritage artists earn at the same rate as those on new deals.

But there are still plenty of heritage artists receiving a much lower cut of streaming income than would be the norm on a new deal negotiated today.

And, whatever the legalities, many artists argue that it is morally wrong for labels to be applying to streams royalty rates agreed in the context of selling physical discs in an era where no one anticipated how easy it would be to monetise catalogue in future decades.

Crump's colleague Anne Andrews tells The Times: “The royalty payments are being made under terms decided by the record companies. We are unwinding that to try and understand it but we can’t say exactly what they are doing because we haven’t been able to engage them or their accounting departments yet".

Crump and Andrews reckon there might be a case to pursue against the labels for unjust enrichment and they are reaching out to affected artists to help build that case, with plans to talk to UK-based artists too.

Crump concludes: "This is a civil rights issue for all artists. Whoever you are, you have the right to be compensated fairly for your creations".

ONE LINERS

Concord, Reactional Music, Gary Kemp + more

DEALS

Richard 'Biff' Stannard has renewed his global publishing deal with Concord Music Publishing. The songwriter, who has worked with the likes of Kylie Minogue, 5 Seconds Of Summer, Ellie Goulding and the Spice Girls, says he's "THRILLED to be signed with the mighty Concord". Ant Hippsley at Stannard's management firm Milk & Honey also states that he's "THRILLED to see some of Biff's best co-written work to date out there". And Harri Davies at Concord adds: "Here's to another chapter of success together!"

APPOINTMENTS

Reactional Music – which describes its mission as “connecting music and games creatively and commercially” – has announced new appointments from both the music and gaming sectors. Former Spotify exec Jacob Deshayes becomes Chief Content Officer and former Take Two Interactive CEO Kelly Sumner joins the company’s board as Chair.

MANAGEMENT & FUNDING

The Music Managers Forum has formally launched the updated version of its 'Essentials Of Music Music Management' book. The new edition includes extra insights on AI, Web3, manager/client agreements and the art of negotiation. Says MMF Chair Paul Craig: "I'm immensely proud of the MMF team for putting together such a helpful and comprehensive guide, and would like to thank everyone who contributed to its making. The 'Essentials Of Music Management' covers a lot of ground, but it's an incredibly useful resource for both upcoming and experienced managers. I certainly wish this book existed when I was starting out". You can buy a copy here.

AWARDS

Gary Kemp was presented with an Icon Award by US collecting society BMI at its London Awards earlier this week. Producer P2J was also presented with the BMI Impact Award, while the Song Of The Year prize was presented to Doja Cat and her co-writers on 'Woman': Aaron Horn, Jidenna and Linden Jay.

DIGITAL

Spotify adds free audiobook access to premium in UK and Australia

Spotify has announced that it will now offer free access to fifteen hours of audio-book listening every month for premium subscribers in the UK and Australia, with the US to follow later this year. Subscribers will be able to pick from 150,000 audiobooks.

"We believe that offering personalised music, podcasts and audiobooks on a single platform gives you a superior way to connect with your favourite artists, podcasters, creators and authors - all in one spot", the streaming service says. "Not only can you listen to some of your favourite authors’ works, but you can also tune into podcasts where fans dissect the most minor details of a story and find the hidden meaning in every sentence, without leaving the app".

The new offer for premium subscribers is part of Spotify's big bid to become a dominant player in audiobooks as well as music and podcasts. It launched its pay-as-you-go audiobooks offer last year. However, so far this has been something of a lacklustre affair, not least because paying to access a book on mobile is a very clunky experience as Spotify seeks to avoid taking any in-app payments where it would have to pay a commission to Apple or Google.

Persuading customers to go through that process when they aren't even used to using Spotify for audiobooks is tricky. It therefore makes sense to make audiobook listening available for free to premium subscribers, so they get used to using Spotify for books and might then be willing to go through whatever process is necessary to pay for additional access.

It’s thought that access to audiobooks will be part of a higher priced premium package that Spotify is planning, so it's interesting to see such access actually being made available as part the service's standard premium package too.

The music industry has generally been resistant to the idea that other content types should get a cut of the monies generated by premium subscription sales. If audiobook access came as part of a higher priced subscription there would be a separate income stream that could be shared with book publishers. By making audiobooks available on the standard package, Spotify may well be taking a finanical hit to try and get its third content strand properly off the ground.

Books available under this scheme are marked as "included in premium" in the Spotify app. For those with Family or Duo plan subscriptions, only the primary account holder will have book access.

LEGAL

BMG settles lawsuit over poop-based 'My Humps' rip-off

Toy-maker MGA Entertainment has reached a settlement with BMG over a song it used to promote its Poopsie Slime Surprise line of toys, which the music firm said was an unapproved rip off of Black Eyed Peas track 'My Humps'.

In its lawsuit earlier this year, BMG - which owns 75% of the 'My Humps’ copyright - explained that the Poopsie Slime Surprise product line features “a number of different toys, including, but not limited to, a dancing unicorn doll and a unicorn doll that excretes sparkling slime”.

And to promote its slime pooping toys, MGA “created a song called ‘My Poops’ that clearly copies from, and is substantially similar to, ‘My Humps'".

Indeed, BMG's original legal filing went on, “the infringing work is so substantially similar to ‘My Humps’ that it is obvious that the infringing work was intentionally copied from ‘My Humps', and was created to commercially exploit the popularity of, and goodwill associated with, ‘My Humps’ and the Black Eyed Peas in order to sell more products”.

Had it got court, MGA presumably would have tried to argue that 'My Poops' was a parody of 'My Humps' and therefore fair use under US copyright law. But no legal discussion of the copyright status of poop-based parodies will be required.

An order from the court considering the case earlier this week states: "The court having been advised that the parties have reached a settlement in principle, it is ordered that the above-entitled action be and hereby is discontinued, without costs to either party, subject to reopening should the settlement not be consummated within 30 days of the date hereof".

LABELS & PUBLISHERS

Blue Raincoat announces charity partnership with Attitude Is Everything

Blue Raincoat Music has announced a wide-ranging partnership with Attitude Is Everything, the charity which campaigns for and helps facilitate better accessibility at live events, and more generally within the music industry, seeking to ensure that the music business values disabled people as audience members, performers, professionals and volunteers.

Confirming the new partnership, Blue Raincoat co-founder and CEO Jeremy Lascelles says: “Robin Millar, the co-founder of Blue Raincoat Music, has dealt with disability through most of his working life, so we think it is particularly apt that we are able to lend our support to Attitude Is Everything".

"Robin’s own experience of attending gigs has been transformed by this charity’s work", he continues, "from a miserable one to where he can now enjoy the performance to the full. We are very thankful they do such important work in improving access for disabled people in every area of the industry. We will be providing Attitude Is Everything with access to training, networking and mentoring, and an A&R feedback programme alongside a fundraising commitment".

Millar, who recently moved to a Creative Consultant role at the music firm, adds: “Having seen AIE’s transformative impact on my own experiences at concerts, I’m very excited Blue Raincoat is now partnering with AIE as they evolve their reach to improve access to employment and musical careers".

Attitude Is Everything founder Suzanne Bull says of the new alliance with Blue Raincoat: “The Attitude Is Everything board and staff team are grateful to Blue Raincoat Music for choosing us as their charity partner".

"We’re honoured that Blue Raincoat are fully behind our vision", she adds, "and that they want to dedicate themselves to making sure that access to music and live events improves for disabled people. We’re looking forward to supporting their fundraising activities throughout the year and we’re excited for what’s to come!”

DIGITAL

TikTok testing ad-free premium subscriptions

TikTok is testing an ad-free premium version of its service, which would allow people to use the app without seeing any advertising for $4.99 a month.

Android Authority initially spotted code within the TikTok app that suggested the video-sharing platform might be testing an ad-free premium package. TikTok then confirmed to TechCrunch that it is indeed testing a premium product, in one English-speaking market that is not the US.

Although TikTok premium would in theory be ad-free, users would still be exposed to promotional content that appears within videos uploaded to the platform by creators and influencers. Though that is also true with YouTube Premium and, indeed, when listening to podcasts on Spotify.

TechCrunch notes that TikTok's pilot of a premium product is relatively small-scale at the moment and no decision has yet been made about rolling the product out more widely.

Of course, in the music space TikTok is already in the premium subscriptions business via the TikTok Music service that launched in July.

LEGAL

Appeal filed in second 'Thinking Out Loud' song-theft case

The music company pursuing the other song theft lawsuit in relation to Ed Sheeran's 'Thinking Out Loud' has filed an appeal with the Second Circuit Appeals Court in the US.

Sheeran, of course, has been accused of ripping off Marvin Gaye's 'Let's Get It On' when he wrote his 2014 hit. He was initially sued by the estate of the co-writer of the Gaye song, Ed Townsend, with the case getting to court earlier this year.

The Sheeran side argued that, while there are similarities between 'Thinking Out Loud' and 'Let's Get It On', that is because they were created using the same musical building blocks. And the musical segments shared between the two songs are not protected by copyright in isolation.

The jury sided with Sheeran in that case. And while the Townsend estate originally planned to appeal that ruling, last month they changed their mind.

However, Sheeran was also sued in relation to the same song-theft claim by a company called Structured Asset Sales, which owns a stake in the 'Let's Get It On' copyright. That lawsuit was dismissed a few weeks after the jury ruled in favour of Sheeran in the other case. But SAS is going through with an appeal, filing papers with the Second Circuit Appeals Court last week.

There are two elements to the appeal. First, there's a common gripe with cases involving older songs, in that - under US law - technically only the version of a work logged with the Copyright Office enjoys protection and, until the late 1970s, only a sheet music version could be logged.

Which is annoying if you think a new song has ripped of elements of an older song that were present in the recording of the older work but not the sheet music.

SAS actually registered 'Let's Get It On' anew with the Copyright Office so it could log the recorded version of the song. But the New York judge considering the case still ruled that only the sheet music version of 'Lets Get It On' could be considered, a ruling SAS reckons should be overturned.

Especially as, in making that ruling, the judge cited judgements in the Ninth Circuit Appeals Court, which doesn't have jurisdiction in New York state.

The second element of the appeal deals with the judge's conclusion regarding SAS's actual copyright claim over the similarities between 'Thinking Out Loud' and 'Let's Get It On'.

Concluding, the SAS appeal says that all the decisions made in the lower court should be reversed and "the case should be remanded to the District Court with instructions to have the case proceed to trial, with appellant’s expert reports restored in full".

AND FINALLY

Ed Sheeran gets a Gold BRIT Billion award for passing ten billion UK streams

Having now dished out a bunch of its new BRIT Billion awards to artists who have scored more than a billion streams in the UK, record label trade body BPI has presented a Gold BRIT Billion award. Because Ed Sheeran has passed ten billion streams and doesn't have room on his shelf for ten of those basic gongs.

"It's wonderful to receive the first-ever BRIT Billion Award in the UK for ten billion streams", says Sheeran. "I want to say a big thank you to my fans. None of this is possible without you guys".

Sheeran was presented with his special gold version of the BRIT Billion award by one-time Rizzle Kicker Jordan Stephens, who is the current host of the BRITs Red Carpet Treatment podcast.

And now here's BPI boss Jo Twist with some words: "We congratulate Ed Sheeran and his team on this landmark achievement. Ed may represent the pinnacle of streaming success, but he is also among the thousands of artists who are being streamed in the tens and hundreds of millions in the UK each year and who are thriving thanks to streaming and label support".

"We look forward”, she adds, “to honouring many more artists, including future talent, with a BRIT Billion award".