CMU Daily 05.08.21: Now Sony Music sues energy drink brand Bang over unlicensed music in social media videos, UK government publishes update on post-Brexit touring barriers, though campaigners say there have been no tangible developments

Now Sony Music sues energy drink brand Bang over unlicensed music in social media videos
Sony Music has filed another copyright infringement lawsuit against a brand that has used its music without licence in promotional videos posted to social media. This time it's energy drink brand Bang and its parent company Vital Pharmaceuticals being sued over their alleged use of at least 132 unlicensed Sony-controlled sound recordings in posts on TikTok, Instagram, YouTube and Facebook.

In a lawsuit filed with the courts in Florida, Sony Music says that "Bang is a brand of energy drinks and sports nutrition supplements" that has "experienced meteoric growth" so that it is "the third highest-selling energy drink in the United States".

It goes on: "Bang's explosive growth has been amplified by its use of social media - the Bang defendants actively market Bang and Bang-related products on social media, including TikTok, Instagram, YouTube and Facebook apps and related websites to increase Bang's reach, brand value and sales".

The social media marketing activity, of course, involves "regularly posting videos displaying Bang Energy products including its energy drinks, energy shots and Bang-branded apparel". And what do those videos contain? Well, "the Bang defendants' videos are choreographed to famous copyrighted sound recordings and musical compositions", of course.

"The Bang defendants brag loudly about the billions of views that their videos have received", the lawsuit continues, "but have been silent since Sony Music demanded an explanation for the unauthorised use of at least 132 copyrighted sound recordings – owned or exclusively licensed by Sony Music – in no less than 209 videos posted on the social media accounts".

"Sony Music informed the Bang defendants of their infringing use of Sony Music's copyrighted material during a telephone call with Bang's in-house counsel on 6 Apr 2021 and through a letter sent to Bang on 13 Apr 2021", the legal filing states. "In response, the Bang defendants meekly stated that its legal department did not agree with Sony Music's contentions of infringement, but failed to provide any basis for their disagreement".

"In its communications with the Bang defendants, Sony Music specifically identified the posts where its copyrighted material was used without its permission. Despite being provided with a detailed list of infringing posts, the Bang defendants nonetheless continued to use Sony Music's copyrighted musical work in their videos as well as make new infringing videos".

Sony Music last month sued sportswear firm Gymshark for likewise using, without licence, its recordings in promotional videos that were posted to social media. The social media platforms referenced in both lawsuits all have their own licensing deals with music companies like Sony, of course, however those licences generally only cover music that appears in user-generated videos, not videos created and posted by companies.

Both Gymshark and Bang also work with influencers around their social marketing, meaning that some of the videos including Sony recordings were created and posted by the brands themselves, while others were created and posted by influencers at the brand's request.

However, Sony would argue that this distinction is irrelevant, because once influencers are working with brands their videos no longer fall under any user-generated content licences. The only difference is that the defendants are liable for direct infringement in relation to their own created videos and secondary infringement in relation to the influencer videos they commissioned.

"By incorporating Sony Music's copyrighted works into the infringing videos, and then making those infringing videos available to the public without licence or authorisation from Sony Music, the Bang defendants are infringing Sony Music's exclusive rights to reproduce, prepare derivative works based upon, distribute, and publicly perform [its recordings]", the lawsuit then states, getting to the nitty gritty of the legal arguments.

Stating that Bang and its owner Vital Pharmaceuticals are fully aware of how intellectual property laws work, the lawsuit notes how the defendants have pursed their own litigation in the same court as this case in order to protect their own IP rights. And Bang also previously approached Sony about securing a licence "in connection with the inclusion of Sony Music's sound recordings in a music library component of a new app it intended to launch".

Nevertheless, the major argues, when it comes to social media marketing content, Bang continues to use its recordings without permission, in doing so "robbing Sony Music of the revenues it is entitled to for use of its sound recordings and depriving its artists of an important source of revenue". Which means that "the Bang defendants caused Sony Music irreparable harm". And to that end, Sony would like statutory damages of $150,000 per infringement.

Given Bang's in-house legal team have previously told Sony that they don't think their social media videos infringe the major's copyrights, it will be interesting to see if the drinks company formally presents that argument in its response to the lawsuit and, if so, on what grounds they back up that viewpoint. It will also be interesting to see if the Gymshark and Bang lawsuits are just the start in Sony's efforts to crackdown on the unlicensed use of its music in social media promo content.

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R Kelly jury will hear about other alleged crimes in New York trial
The judge overseeing R Kelly's sexual abuse trial in New York has ruled that the prosecution can present evidence in court in relation to other alleged crimes for which he has not been charged. This will include testimony surrounding the musician's marriage to Aaliyah when she was just fifteen years old.

One of three prosecutions pending in relation to the numerous allegations of sexual abuse that have been made against Kelly, the New York case currently centres on allegations made by six women and girls. However, last month prosecutors filed a motion asking the court to also hear testimonies from more than twelve other people, which the lawyers say are relevant to the alleged crimes for which they are hoping to secure a conviction.

The defence argued that this other evidence had been submitted too late in the day and should not be permitted to be presented to the jury. However, for the most part, the judge said that it could be put forward, with some conditions restricting exactly what can be discussed in the courtroom.

Kelly's relationship with Aaliyah - who died in a plane crash in 2001 - will be one of the things that is discussed in court. The couple secretly married in 1994, allegedly after Kelly bribed a government official to make a fake ID showing Aaliyah as being eighteen. The marriage was annulled soon afterwards.

The prosecution alleges that Kelly married the singer because he believed that she had fallen pregnant and feared prosecution. Under US law, a wife cannot be forced to testify against her husband. Arguing against allowing this story to be heard by the court, the prosecution said that it risked being "prejudicial". However, the judge knocked back those concerns, adding, "obviously, with all of these things I'm not going to permit hearsay".

This and the other new allegations to be presented in court are "directly relevant to and inextricably intertwined with the evidence of the charged crimes", the prosecution argues. In particular, they will help to present the case that Kelly operated a "criminal enterprise" of managers, bodyguards and other staff who allegedly aided him in finding women and underage girls for sex.

Many of the restrictions placed on these testimonies will protect some personal information about the women who have agreed to speak in court. This includes identifying them only by their first names.

Jury selection in the case is set to begin on Monday.

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Olivia Rodrigo signs to Sony Music Publishing
Sony Music Publishing has signed that Olivia Rodrigo to a worldwide publishing deal, which is good news for Sony Music Publishing.

"There's nothing I love more than songwriting", says Rodrigo. "It's my favourite thing in the world, and I'm excited to be working with the team at Sony Music Publishing".

Because this big deal is a big deal, Sony has wheeled out three people to comment on it. Any artists reading this, this is how you know when they're really excited. The hierarchy goes like this: Three quotes - they're very excited; Two quotes - they're reasonably excited; one quote - I hope you enjoyed your career up to this point because it's basically over now.

Sony Music Publishing CEO Jon Platt says this: "Olivia is a once-in-a-generation talent with the heart of a true songwriter – there is no limit to what she can accomplish. Along with the entire Sony Music Publishing team, we look forward to supporting Olivia's incredible artistry and creating the best opportunities for her songs as she begins this exciting new chapter".

Sony Music Publishing A&R Director Thomas Krottinger says this: "It has been a great privilege to work with Olivia over the last year – she constantly pushes her creative boundaries, allowing her to craft genuine, emotive songs that transcend genres and bring people together. We are honoured to partner with Olivia and her incredible team, and we are beyond excited to champion her as she continues inspiring the world!"

Sony Music Publishing SVP Creative Jennifer Knoepfle says this: "What strikes me most about Olivia is her incredible storytelling ability. Every song on [her debut album] 'Sour' spins a narrative that is both unique to her and relatable to so many. She has a gift with words, and we are so lucky to support her from the beginning of what will surely be a long and fruitful career".

Hmm, not one of them was THRILLED. Maybe they're not that fussed after all.

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Carlos Santana signs to BMG
Carlos Santana has signed a new record deal with BMG, ahead of the release of his new album, 'Blessings And Miracles'.

"I am honoured to partner with BMG to release 'Blessings And Miracles'", says Santana. "I would like to thank everyone at BMG for sharing our collective commonality-vision to touch people's hearts with energy, conviction and integrity. Now more than ever, we need songs and melodies to remind us that we are significant, meaningful and that life is full of blessings and miracles".

Thomas Scherer, BMG President Repertoire & Marketing, Los Angeles and New York, adds: "We are honoured to welcome the transcendent Carlos Santana and his team to BMG. Santana's sound is a universal language with his guitar resonating deep inside your core".

"Listening to and feeling this album is an embrace of the source from where we all come from", he goes on. "'Blessings And Miracles' is full of joy, and we are grateful to be his partner in spreading this musical treasure to his fans and new fans everywhere around the world".

No release date has been announced for the album yet, but its first single is expected later this month.

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UK government publishes update on post-Brexit touring barriers, though campaigners say there have been no tangible developments
The UK government yesterday posted an update on its efforts to tackle the post-Brexit bureaucracy British artists face when they start touring Europe again one COVID restrictions start to lift. However - while any formal communication on these issues is a good thing - some music industry campaigners have criticised the new update for presenting the status quo as if it constitutes a series of positive developments.

When the post-Brexit EU/UK trade deal was published late last year it was quickly apparent that it did not include an EU-wide provision for visa free touring for British artists across Europe, despite UK ministers promising the music industry that such a provision would indeed be included. The UK then blamed the EU for blocking the provision, while the EU blamed the UK. Basically, both sides had opposed the other's proposal in this domain.

As a result, British artists touring Europe now face different rules in each EU member state. In some countries it doesn't make a huge amount of difference for short tours, but in other countries travel permits and equipment carnets may now be required. Meanwhile, there are other post-Brexit complications relating to VAT and the so called cabotage rules that govern the movement of people and goods around foreign countries.

Campaigners have been calling on the UK government to work with the EU itself and each EU member country to remove as many of the new post-Brexit barriers as possible, while also providing clear guidance for the music industry on what new obligations artists and crews must meet for each market. The music community has also asked for financial support to ensure any new bureaucratic obligations don't make small and middle-scale tours commercially unviable.

In the main, ministers have acknowledged the challenges that Brexit has created for touring performers and insisted that they want to address those issues. However, the music community has been frustrated at the lack of progress in this domain. Meanwhile, Prime Minister 'Boris' Johnson told Parliament that he'd make sure Brexit negotiator David Frost spearheaded the government's efforts to address all these issues, but - when questioned by MPs - Frost basically shrugged his shoulders and said the issues were a necessary evil of the kind of Brexit Johnson's Conservative Party wanted.

In the update yesterday, the UK government's Department For Digital, Media, Culture & Sport insisted: "We want the UK's fantastic performers and other creative professionals to be able to tour abroad easily". To that end, it added, it had - albeit unsuccessfully - "tabled ambitious proposals during negotiations with the EU", and had also more recently successfully secured the required touring provisions in a deal with those European countries that are outside the EU but inside the European Economic Area, ie Norway, Iceland and Liechtenstein.

As for countries inside the EU, the update continued: "We, as government, have spoken to every EU member state about the issues facing our creative and cultural industries when looking to tour in Europe. From these discussions nineteen member states have confirmed UK musicians and performers do not need visas or work permits for short-term tours. These countries are: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Poland, Slovakia, Slovenia and Sweden".

As for the other eight, it went on: "We are now actively engaging with the remaining EU member states that do not allow visa and permit free touring, and calling on them to align their arrangements with the UK's generous rules, which allow touring performers and support staff to come to the UK for up to three months without a visa. Formal approaches via officials and DCMS ministers have been made to Spain, Croatia, Greece, Portugal, Bulgaria, Romania, Malta and Cyprus. We are also working with the sector to amplify each other’s lobbying efforts".

"We recognise challenges remain around touring, and we are continuing to work closely with the industry", the update concluded. "We want to ensure that when COVID-19 restrictions are lifted, touring can resume and our world-leading creative and cultural artists can continue to travel widely, learning their craft, growing their audiences and showing the best of British creativity to the world".

UK Music boss Jamie Njoku-Goodwin welcomed the confirmation that DCMS officials and ministers are actively working on addressing these issues. "For months, UK Music has been pressuring government to resolve the EU touring crisis", he said. "So, it is welcome that progress is starting to be made on this issue and negotiations are happening at ministerial level".

"It's vital that the government maintains its focus and works to remove the practical barriers currently impacting musicians who need to work across the EU - particularly in the eight member states which are requiring permits and visas, and on the EU-wide cabotage issues facing the industry", he went on. "It's also important government works with member states to develop clear guidance on the countries where touring is possible so that musicians and crews have a clear understanding of what the different rules are and what will be required from them. For example, what is covered by 'short-term'?"

That call for much more clarity and detail was echoed by David Martin from the Featured Artists Coalition and the #LetTheMusicMove campaign. And while the first part of yesterday's DCMS update implied tangible progress had already been made, Martin stressed that it merely collated in one place what the music industry already knew.

"We continue to co-operate in good faith with government and officials on the critical issue of EU touring, however the latest announcement is nothing more than we already knew", he said. "It remains that the UK's music industry is in a far less advantageous position now than it was pre-January".

"Despite the spin", he continued, "this statement represents an admission of failure. Failure to fulfil the promises made by government about securing our industry's future during negotiations, failure to 'fix' the issue, as per the PM's statement of March this year, and failure to provide certainty around touring in almost a third of EU countries, eight months after the music industry was dealt a no-deal scenario".

"We launched #LetTheMusicMove in June which saw thousands of artists sign up to highlight the crisis that our industry finds itself in", he went on. "Yet, there has been no political representation in the meetings on the issues for months, let alone any signal that government is 'straining every sinew' to help our £6 billion sector. If there is a serious intention to fix the problems created by the government's failure in negotiations, they must start by being honest with our sector and the public about the current status regarding EU touring".

Returning to the call for more clarity and detail, Martin concluded: "As a start, government must publish full details on a country-by-country basis, outlining the exact requirements for touring performers and crew across all 27 member states".

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Noel Gallagher signs up for Radio X residency
Noel Gallagher has signed up to present a Sunday night show on Radio X throughout August, alongside comedy writer Matt Morgan.

"You lucky little indie kids are getting the pleasure of mine and the thinking man's fuddy-duddy Matt Morgan's company for a residency", says Gallagher. "You'll be hearing some great tunes, and a lot of nonsense, being spouted mostly by me! Tune in… you might learn summat".

Radio X Managing Editor Matt Deverson adds: "Whether it be through Oasis or the ten years of his High Flying Birds, Noel Gallagher's music is part of the fabric of Radio X, and I'm delighted that the man himself will be hosting a show on the station".

"He's teamed up with his good mate Matt Morgan, and as a man who's never short of a word to say", he goes on. "I can't wait to hear them put the world to rights in their own unique style, as well as pick some of their favourite tunes. Noel Gallagher really does live on Radio X".

The first edition of the show will go out on Sunday, 8 Aug, from 7-9pm.

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DEALS

Music publisher Psychotic Reaction has announced a new partnership with Warp Publishing, having previously worked with Kobalt. "I want to thank all our friends and colleagues at Kobalt for having been so supportive of us over the years", says CEO Leo Silverman. "We have been looking to improve the services we offer our artists for a while and moving to Warp will really help us on that front. They are a great fit for us, and it will be a game changer for our writers, which is the most important thing".

Warner Chappell has signed German rapper Rin to a global publishing deal. "This feels like a great time to sign to Warner Chappell Music", he says. "I have a lot of respect for the rappers who are already with the publisher, and I know I'll be in good company. I have several projects in the pipeline right now, and I can't wait to share more music with my fans and perform live again as soon as possible!"

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APPOINTMENTS

Craig D'Souza has joined the UK office of booking agency WME as a partner. He moves over from Primary Talent. He brings with him a roster including Dave, Headie One, Aitch, J Hus, D-Block Europe, Fredo, and Joy Crookes.

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ENTERTAINMENT RETAIL

Love Record Stores has announced that its next event will take place on 4 Sep, with various exclusive releases being made available in record shops. Browse the list of releases here.

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EDUCATION & EVENTS

Applications for a new talent development programme called Inside Track - led by Ivor Novello Award winner Cassell The Beatmaker in partnership with the Ivors Academy - are now open. Four performing songwriters and composers facing barriers to entering the music industry will be enrolled on a year-long, fully funded mentoring and development programme. Full details here.

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RELEASES

To mark their fifth anniversary, Blackpink are getting their own 'island' in Nintendo Switch video game 'Animal Crossing: New Horizons'. It'll be available from tomorrow. They're also releasing new documentary 'Blackpink: The Movie', which will be screened in cinemas on Sunday.

Having released his latest album with his sister Billie Eilish, Finneas is now turning to his solo work, announcing that he will release his debut solo album, 'Optimist', on 15 Oct. Here's new single 'A Concert Six Months From Now'.

Tom Morello will release new album 'The Atlas Underground Fire' on 15 Oct. From it, here's a cover of AC/DC's 'Highway To Hell', featuring Bruce Springsteen and Eddie Vedder.

Unknown Mortal Orchestra have released new single 'That Life'.

With their new album 'Voyeurist' set for a 14 Jan release, Underoath have released another track from it, 'Hallelujah'.

Purity Ring have released new track 'Soshy'.

Black Midi have made the bonus track from the Japanese edition of their latest album 'Cavalcade' available to the rest of the world. Here's 'Cruising'.

Deafheaven have released new single 'In Blur'. New album, 'Infinite Granite', is out on 20 Aug.

Dave Okumu has released new single 'New Dawn'. His debut solo album, 'Knopperz', is out on 24 Sep.

Reb Fountain has released new single 'Lacuna'. Her new album, 'Iris', is out on 1 Oct.

Jacuzi are back with new single 'Hiç Işık Yok'. It's one of two tracks newly released by the duo, the other being 'Açık Bir Yara'. "We waited to release these songs since we couldn't predict what the future would be in the pandemic period", says vocalist Kutay Soyocak. "Then, we realised how coincidentally two pre-written songs fit our current mood. We wanted to publish our productions because we believe that they are the milestones of the periods in our lives. Before the third album, we wanted it to be a reminder that reflects this period".

Formerly of My Tiger, My Timing, Anna Vincent has announced that she will release her debut solo album, 'Under The Glass', on 29 Oct. Here's new single 'Naxos'.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Kanye West livestreams final recording sessions for Donda
Ahead of his big listening party tonight, Kanye West is livestreaming himself finishing off his new 'Donda' album.

Holed up in his makeshift studio backstage at the Mercedes-Benz Stadium in Atlanta, West has largely appeared masked with his back to the camera. However, he has been joined by various guests along the way so far, including Chance The Rapper and Vic Mensa. Also, for a bit of variety, there was a whole section where he just exercised.

If you're hoping for a sneaky early listen to 'Donda' though, don't get your hopes up. The livestream is presented without audio. You just have to make do with the visuals, which are probably not going to be among the most riveting things you've ever watched. Presumably once West takes his place in the actual stadium part of the stadium later this evening to play the finished creation to a room full of fans the livestream will get some audio.

Assuming all goes to plan - why would you think it wouldn't? - the finished album will be out tomorrow. A countdown clock in the 'studio' suggests that the earliest you could expect it would be 6.30am UK time.

Who knows though? At the time of writing - with eighteen and a half hours to go - West is still very much recording vocals. This doesn't leave very long to mix and master the album. Obviously West is not averse to remixing and even re-recording tracks after they've been released to streaming services. I guess what I'm saying though, is don't get too upset if you don't get to hear 'Donda' on your streaming service of choice tomorrow.

If you want to hear it tonight with other like-minded people, a load of map coordinates for events screening the livestream have been listed on West's website. In the UK, it looks like the Crown & Shuttle in Shoreditch, Cardiff Castle and and the Radisson Blu in Edinburgh. Or thereabouts. It all starts at 2.30am UK time anyway, by which time you should be fast asleep in bed.

Watch the (silent) video on Apple Music now.

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