CMU Daily 14.06.23: Dr Luke v Kesha defamation dispute continues, Ed's Ted pushes Tingly sauce

Dr Luke's defamation claim against Kesha made trickier as appeals court rules he is a public figure
The New York Court Of Appeals ruled yesterday that producer Dr Luke is sufficiently famous to be deemed a "limited public figure". This is a classification which impacts on his ongoing defamation legal battle with Kesha, increasing the producer's burden in court. He will now need to show that Kesha acted with actual malice when she made her allegedly defamatory statements.

Luke's defamation lawsuit against Kesha is all that remains of what began as a multi-layered multi-state legal battle between the producer and musician which was kickstarted when Kesha accused Luke of rape. He denies those allegations and - arguing that Kesha's claims have negatively impacted his career - he sued for defamation.

As the defamation case has gone through the motions, there has been much debate as to whether Luke needs to show that Kesha acted with actual malice when making her allegations against him. If he does, that will inevitably make it harder for him to win the case.

There are two reasons under New York law why Luke might have to prove actual malice. First, if he is deemed a public figure. And second, if changes to New York state law that occurred while this litigation was going through the motions are applied to the case.

Those were amendments to free speech laws in New York state that say that the actual malice requirement can apply in defamation cases filed by people who are not public figures if the allegedly defamatory statement relates to issues of public concern.

The judge overseeing the Luke v Kesha lawsuit - Jennifer Schecter - decided that the producer was not a public figure, because while he is well known within the music industry, he's not a famous name more generally. However, Schecter subsequently decided that the new free speech laws in New York should apply, which meant the actual malice obligation came into play.

But the Luke side then successfully appealed that latter decision, removing said obligation. The Kesha side then asked the New York Court Of Appeal to overturn Schecter's decision regarding Luke's public figure status and reinstate her decision that the new free speech laws should apply.

Yesterday the appeals court basically did both of those things. "We hold that [Luke] is a limited public figure who must prove by clear and convincing evidence that [Kesha] acted with actual malice", wrote appeals judge Michael J Garcia.

After all, the judge added, Luke "purposefully sought media attention for himself, his businesses, and for the artists he represented, to advance those business interests. He had been featured in various publications, as well as on radio and television, highlighting the nature of his relationships with those artists and his development of their talent and careers".

The appeal judges also ruled that the new free speech laws in New York state do apply to this case. Given they had already deemed Luke to be a public figure, that doesn't really affect the actual malice obligation.

However, those new laws have another impact too: if Kesha is successful in court she can now seek to force Luke to pay legal costs and damages. Although the appeals court added that any financial claim can only apply to things that have happened, and costs that have been incurred, since the new law came into effect in 2020.

On top of all that, there was one further ruling that favoured Kesha. Luke's defamation claim relates to a number of statements made by Kesha and her representatives, including five that were made by her legal team during previous legal wrangling.

The appeal judges ruled that those latter statements were protected by 'litigation privilege' and therefore the defamation claim in relation to those specific statements cannot proceed.

So all in all, the appeals court ruling very much favoured Kesha. Although legal reps for Luke told reporters that they remain confident their client will win when the actual defamation action finally gets to trial.

Attorney Christine Lepera told Law360 that Luke and his team remain "fully confident" that he will "prevail at trial as a limited public figure given [Kesha's] conduct and knowledge in issuing the defamatory statements at issue".

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Cardi B reaches final settlement in artwork battle
The man who unsuccessfully sued Cardi B over her use of his distinctive back tattoo on the cover of a mixtape has reached a deal with the rapper over her legal costs in fighting the case. He has also withdrawn a motion that was seeking a new trial.

Kevin Brophy sued Cardi B - real name Belcalis Almánzar - in 2017. A photo of his distinctive tattoo was Photoshopped onto the cover of her 2016 mixtape, so that it appeared on the back of a man who was positioned to look like he was performing oral sex on the rapper.

He argued that the unauthorised use of the tattoo image meant people assumed it was him in the photo, and - given the explicit nature of the artwork - that had resulted in him facing frequent "uncomfortable comments, questions, and ridicule from community members and family". Meanwhile, in legal terms, he reckoned Almánzar and his team had infringed his publicity rights.

However, last October a jury sided with Almánzar and concluded that she hadn't, in fact, infringed any of Brophy's rights. Subsequent to that decision, Almánzar began proceedings to try to get Brophy to cover the legal costs she incurred in defending herself in the case. Meanwhile, Brophy filed a motion seeking a second trial, arguing that prejudicial errors of law had occurred during the original court hearing.

But both sides told the court earlier this week that they have reached an agreement on Almánzar's legal costs. And, as part of that agreement, Brophy has withdrawn his motion seeking a second trial.

According to Law360, legal papers submitted on Monday, and approved by the judge yesterday, stated: "Defendants shall recover from plaintiff attorney's fees and costs in the total amount of $350,000, plus interest at the rate of 10% per annum from and after the entry of this order, plus reasonable attorney's fees incurred in collecting the foregoing sums".

And so that's that. No more legal wrangling over tattoos and sneaky Photoshopping tactics and sexually explicit mixtape covers.

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BMG acquires The Hollies' recordings catalogue
BMG has acquired the recordings catalogue of The Hollies, covering releases from 1967 to the present day.

In a statement, the group say: "BMG's history as a trusted custodian of some of music's greatest works assures we know our music and legacy will continue to live on for generations to come".

Thomas Scherer, BMG's President of Repertoire & Marketing for New York and Los Angeles, adds: "The Hollies spearheaded the 'British Invasion' of the 60s, and we are delighted to have secured rights to their golden period in the US, including 'Long Cool Woman (In A Black Dress)'. We are honoured to represent their continuing creative legacy".

The deal covers releases from The Hollies' sixth album 'Evolution' - the first of two released in 1967 - up to their 23rd LP, 2009's 'Then, Now, Always'. It also covers various live and compilation releases.

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New data guide aims to help songwriters get every penny they are due
A new website has launched to help UK songwriters understand the different bits of data that they need to generate and provide every time they write a new song.

The Get Paid Guide has been launched following the recent signing of a metadata agreement by the British music industry. That was one of the outputs of the economics of music streaming work instigated by the UK government's Intellectual Property Office in response to Parliament's big old inquiry into the workings of the digital music business.

When new recordings are delivered to streaming services, generally only the recording is uniquely identified by an industry standard code - that being the ISRC. The song contained in the recording is not identified in that way, ie the code for identifying songs, the ISWC, is not usually provided.

When it comes to credits, the main artist's name will be submitted, as might be some information about the songwriters, but the names of other musicians and producers involved in the recording are usually not included.

That missing data means that many music-makers are not credited on the streaming services, despite copyright providing a moral right to attribution for creators.

Meanwhile, on the songs side, the missing data makes the processing of song royalties extra complicated, which often results in delays in getting songwriters paid, plus higher admin fees coming off the royalties the writer is due. And sometimes the money doesn't reach the writer at all.

With the metadata agreement, stakeholders across the music industry have agreed to raise their game to try to get more data in the system around new releases. That involves record labels, music distributors, music publishers, collecting societies and streaming services, but also artists, songwriters, producers and their managers.

It's generally agreed that, for the metadata agreement to succeed, lots of education needs to happen across the industry so that everyone understands the different data sets and codes that are required to get people credited and paid. The Get Paid Guide seeks to begin that process by providing some useful information and resources for songwriters.

The website - produced by collecting society PRS in partnership with the Ivors Academy, Music Publishers' Association and IPO - provides a five step guide, talking writers through key codes like the IPI and ISWC, and how they access them, and the other information they need to put into the PRS database in order to get paid when their songs are played.

Commenting on the new guide, songwriter Michelle Escoffery - who is also President of the PRS Members' Council - says: "The Get Paid Guide is a crucial handbook for songwriters. Getting the data right at the point of works registration is vitally important and is often the difference between being paid or not. This guide brings us closer to achieving a healthier metadata ecosystem overall. I encourage all music creators to use this guide, get fluent with the relevant codes and empower themselves to get paid accurately and quickly".

You can access the Get Paid Guide here.

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UK government's Creative Industries Sector Vision includes further funding for music industry schemes
The UK government yesterday bigged up a number of funding and educational initiatives that aim to support the continued growth of the creative industries, including the good old music industry. Which is pretty damn creative. Sometimes.

It's all part of a scheme that has the snappy name of the Creative Industries Sector Vision. Which is all about "driving innovation, attracting investment and building on the clusters of creativity across the country".

And if you don't believe me, well, that's how Culture Secretary Lucy Frazer describes it. And I'm assuming she'd know. "From first days at school to last days of work", she goes on, "we will nurture the skills needed to build a larger creative workforce to harness the talent needed for continued success".

But why would the government splash the cash on supporting the creative industries? "Why use taxpayer money for this kind of stuff?" the tedious moaners of Britain might ask. Well, it's one of Prime Minister Rishi Sunak's "priority sectors for economic growth". That's why. Surely that's reason enough?

But just in case it isn't, the government also points out that "the creative industries are a global British success story growing at more than 1.5 times the rate of the wider economy over the past decade and contributing £108 billion in gross value added annually". And not only that, but "employment in these industries has grown at five times the rate of the rest of the economy since 2011". So shut up, you tedious moaners.

"The creative industries are a true British success story", reckons Sunak, "from global music stars like Adele and Ed Sheeran to world-class cultural institutions like the National Theatre. These industries have a special place in our national life and make a unique contribution to how we feel about ourselves as a country. We want to build on this incredible success to drive growth in our economy - one of my key priorities - and to ensure that UK creative industries continue to lead the world long into the future".

But what kind of support will come with this Creative Industries Sector Vision? Well, "four new state-of-the-art research and development facilities will be set up to drive the next generation of screen technology and on-set virtual production". And there'll be a further cash boost for the UK Games Fund to help start-ups in the gaming sector "grow their businesses and attract even more private investment into our booming video games industry".

The government will also "invest at least £50 million in the next wave of UK Research & Innovation's Creative Industries Clusters programme" which seeks to support entrepreneurs and businesses in specific regions or creative sub-sectors. Which sounds like fun.

And what about the music industry? That's all you care about, isn't it? Well, further funding is guaranteed for the Music Expert Growth Scheme, the BPI-managed programme that helps independent artists and labels pursue opportunities in new markets.

Plus the government's culture department will "expand Arts Council England's highly successful Supporting Grassroots Music Venues Fund, providing an additional £5 million over two years to support around 400 grassroots music venues projects, as the lifeblood of our world-leading music sector and cornerstones of communities".

On the extended MEGS funding, BPI Interim Chief Executive Sophie Jones says: "At a time when UK artists face greater competition than ever before in a now truly global music market, the Music Export Growth Scheme is an invaluable resource for those independent artists and music companies looking to export their music around the world".

"The scheme is already well over-subscribed, and with this additional investment, the scheme will be able to help even more deserving artists achieve global success", she adds. "We are delighted that the government has recognised the excellent return on investment that MEGS presents and has moved to support independent artists and music in this way".

And on the extra funding for grassroots music venues, Rebecca Walker, Live Projects Coordinator at the Music Venue Trust, says: "There is a well-documented and evidenced crisis at grassroots level. We have new and emerging artists who want to tour, venues who are desperate to host them, audiences that want to see them, but the financial obstacles have simply become too great".

"With this additional £5 million", she continues, "we are going to be able to work with the sector to get artists back out across the country, producing thousands of shows that simply wouldn't be able to take place without this funding".

Beyond the funding initiatives, there are some commitments around education and training too. Which, you know, will also involve some funding, hopefully, so that the bold ambitions around creative and music education in schools and beyond can actually be achieved.

In that domain, the government will publish a Cultural Education Plan later this year, while also remembering to get about implementing the National Plan For Music Education it published last year. It will also "work with industry to ensure post-sixteen technical skills routes work effectively for the creative industries" and "support lifelong learning in the creative industries and enable the sector to retain and retrain the existing workforce".

So, that's the vision for you. The Creative Industries Sector Vision. Let's see how it all works out, shall we?

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50 Cent's cognac bottle battle over
50 Cent's legal battle over the design of a bottle is over, after cognac maker Remi Martin and the rapper's drinks company Sire Spirits agreed to dismiss a lawsuit first filed in 2021.

Remy Martin went legal nearly two years ago, accusing Sire Spirits of ripping off its distinctive bottle design for its own cognac for its own Branson cognac. This, said the more established drink maker, was an effort to "unfairly capitalise" off its reputation and "unabashedly profit" from that "bad faith infringement".

Sire Spirits managed to get the case dismissed in January last year, arguing that Remy Martin hadn't clearly laid out what the defining elements of its bottle design were. However, the judge gave the company the option to refile the lawsuit, which it did less than two weeks later.

With the case back in court, 50 Cent's company again tried to have the case dismissed, using pretty much the same arguments as before. Although on that occasion the judge did not concur and allowed the case to proceed.

It has been rumbling on ever since, but now both sides have agreed to voluntarily dismiss the case, and that it cannot be refiled at a later date. Further details are unknown, as Remy Martin requested that the settlement be kept secret, as it "involves confidential and highly sensitive business information".

So, it seems likely that we will never know exactly what was agreed. Although you may see 50 Cent's Branson cognac in a newly designed bottle sometime soon.

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RELEASES

Killer Mike has released new single 'Scientists & Engineers', featuring André 3000, Future and Eryn Allen Kane. His new solo album 'Michael' is out this Friday.

Anohni And The Johnsons have released new single 'Sliver Of Ice'. "A friend of mine expressed to me in the final months of his life that the simplest sensations had begun to feel almost rapturous", says Anon. "A carer had placed a shard of ice on his tongue one day and it was such a sweet and unbelievable feeling that it caused him to weep with gratitude. He was a hardcore kind of guy and these moments were transforming the way he was seeing things. I wrote 'Sliver of Ice,' remembering those words of his". New album 'My Back Was A Bridge For You To Cross' is out on 7 Jul.

Georgia has released new single 'Give It Up For Love'. Her new album 'Euphoric' is out on 28 Jul.

The Hives have released new single 'Countdown To Shutdown'. What's it all about? Well, that's what frontman Howlin Pelle Almqvist asks: "The countdown to the financial collapse? The countdown to the weekend bender you've been waiting for? The countdown to your favourite sports competition? The Hives have you covered with 'Countdown To Shutdown'. A versatile banger for all your summer rock needs. Approximately 37% more effective than the closest competitor and sure to help your Q2 and Q3 results. Buy now and watch the stock rise!" The band's new album, 'The Death Of Randy Fitzsimmons', is out on 11 Aug.

Devendra Banhart is set to release new album 'Flying Wig' on 22 Sep. Out now is new single 'Twin'. He's also set to play London's Troxy on 15 Nov.

Divorce have released new single 'Birds'. "I was carrying a lot of insecurity that felt like it was piling in on me from all angles but this song was an attempt to reshape those feelings into something positive", says the band's Felix Mackenzie-Barrow. "I wanted to remind myself and all of us in the band how much belief we have in each other and in the truth of what we're doing together".

Allah-Las have announced that they will release new album 'Zuma 85' on 13 Oct. Out now is new single 'The Stuff'. Say the band: "'The Stuff' is a tongue-in-cheek ode to rock tropes and nostalgic sentiments in the music world, including stereotypes of musicians and various trends in music. This is sonically embodied with vocoder, guitar solos, and a steady, driving rhythm". And if you're sitting there thinking that they definitely won't be touring the UK in September, well you're wrong, because they are.

Katie von Schleicher is back with new single 'Elixir', featuring Lady Lamb.

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

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Ed Sheeran gets a giant bear tingly for his hot sauce
Earlier this year Ed Sheeran launched his own hot sauce brand Tingly Ted's. Now he's ready to take it to the next level with an advertising campaign created with Warner Music's brand partnerships division WMX and the actual maker of the sauces, The Kraft Heinz Company.

The campaign answers that age-old question: What would happen if Ed Sheeran was friends with a giant grumpy teddy bear who really liked hot sauce? It also gives us the tagline "makes anything a tingly thing", which I think we'd all be quite happy for them to have back.

Three adverts have been made as part of the campaign, with the first out now. It sees Ed and Ted out for a meal together. Another customer asks Ted to use the hot sauce after him. But Ted then drains all the hot sauce. Though for some reason the man still takes the bottle. Meanwhile, Ed apologises for the turn of events.

Explaining the thinking behind all this, WMX's Associate Creative Director Charlie Rout says: "Hot sauce has traditionally lent on the likes of heavy metal and crossbones for its brand identity, but we were working with Ed Sheeran and a grumpy six foot teddy called Ted".

Sure. He goes on: "When developing Ted, we always saw Ed and Ted as two sides of the same coin, opposite ends of the same table. Whilst Ed is chilled out, welcoming and an all-round good guy, Ted by contrast is grumpy and hot-tempered - as if your belly had its very own persona".

"From there", he rambles on, "we wanted to develop a world for Ed, Ted, and the new product to play in. Something that could go anywhere over time, and what better place to start than a diner with his best friend?"

Those were definitely all words, and here are some more from Andre Fernandes, who is VP Taste Elevation, International Zone at The Kraft Heinz Company: "When we first introduced Tingly Ted's earlier this year, we were excited for the world to meet the brand and try the 'ketchup of hot sauces'. Now, we can't wait for people to get to know Ted and experience life as he sees it: covered in the perfect amount of Tingly Ted's".

I don't know if any of that made sense. To be honest, I'm still distracted by the job title VP Taste Elevation. That cannot be a real job title. How does one, er, elevate themselves to become Vice President of Taste Elevation? What does the job entail? What does anything mean anymore?

Launching his two hot sauces earlier this year - Tingly and Xtra Tingly - Sheeran claimed that his sauces were "genuinely something I use every day on all three meals".

"I've had them on tour with me recently to try them with all sorts of meals", he added. "There really isn't anything they don't go with - except bananas, don't do that".

Warner Music's WMX division was launched in 2021, bringing together the major's teams who are focused on things like brand partnerships, merchandise and direct-to-fan, content and media, and - of course - silly sauce selling.

Watch Ed and Ted in action here.

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