CMU Daily 20.06.22: Jimi Hendrix Experience litigation, Eurovision heading to UK?

Jimi Hendrix Experience dispute should happen in New York, says Sony
Sony Music last week told the high court in London that a dispute over the rights in the Jimi Hendrix Experience recordings should be heard in the New York courts, because the legal battle centres on agreements signed in the 1970s in the US. And a separate lawsuit in relation to this dispute has already been filed with the courts in New York.

The dispute is between Sony Music and the Jimi Hendrix estate on one side, and UK-based companies representing the estates of the other two members of the Jimi Hendrix Experience band - Noel Redding and Mitch Mitchell - on the other. The Redding and Mitchell companies claim that they control rights in the Jimi Hendrix Experience catalogue which are being infringed by the Hendrix estate and its music distribution partner Sony Music.

The Hendrix estate counters that, after Hendrix's death in 1970, both Redding and Mitchell signed agreements via which they basically gave up any copyright or royalty claims in relation to recordings made by the Jimi Hendrix Experience in return for "significant monetary consideration". Neither Redding nor Mitchell ever subsequently raised any issues with those agreements while they were still alive.

But the Redding and Mitchell companies argue that the 1970s agreements didn't actually see the two musicians assign any rights and only related to revenues generated by the recordings at that time, which obviously didn't include any digital income. Meanwhile, they also reckon, commitments in the agreements to not subsequently sue only apply to the Hendrix estate, not to any third parties involved in the exploitation the Experience catalogue, such as Sony.

In terms of the legal battle so far, the Redding and Mitchell companies initially sent a cease and desist letter to Sony Music UK. Correctly assuming a lawsuit would follow in the UK courts, the Hendrix estate and Sony Music then got in first by filing legal papers in New York seeking court confirmation that the 1970s agreements were still in force.

The Redding and Mitchell companies then filed their litigation in the UK while also seeking to get the US action dismissed on jurisdiction grounds.

In a February filing, they argued that the New York court didn't have jurisdiction because they are "English companies that have no contacts with New York of any kind [and] are the assignees in England of copyrights, performance rights, and intellectual property rights from the respective estates of two English musicians, David Noel Redding and John 'Mitch' Mitchell".

For its part, Sony is seeking to have the UK case stayed, insisting that this dispute should be pursued in the US. According to Law360, the major's legal rep, Robert Howe, told the high court on Friday that "New York is the most appropriate forum to determine the foundational question about who owns the relevant rights". Therefore the UK lawsuit should be paused at least until the New York litigation has gone through the motions.

Sony also questioned whether the two companies behind the UK lawsuit have actually been assigned the alleged rights they are seeking to enforce in relation to the Jimi Hendrix Experience recordings. The major reckons the two companies are special purpose vehicles backed by an unknown party which were set up specifically to pursue this legal action.

Needless to say, the Redding and Mitchell companies continue to argue that this is a dispute in relation to the alleged infringement in the UK of the rights of British musicians under UK copyright law, and therefore the battle should take place in London not New York.

And so the transatlantic legal back and forth continues.

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Warner Music sued again over international deductions
Two members of American rock band Orleans have sued Warner Music over a common gripe in the artist community: record companies allowing their foreign subsidiaries to make deductions on digital income and then calculating the artist royalty based on what is received by the label in the artist's home country after those deductions.

In a lawsuit filed with the courts in Nashville, John Hall and Lance Hoppen criticise the major both for making those international deductions in the first place and for failing to clearly communicate that was happening on their royalty statements.

As a result of the bad communication, they add, they'd previously assumed their artist royalty on streams was being calculated based on 'at-source income', ie what the major was paid by the streaming service, not what was received by the home label after the foreign subsidiaries had taken their cut.

The legal filing, which seeks class action status, says: "Fees to foreign affiliates are a relic of the days when the collection of revenues from foreign record sales entailed significant labour, as opposed to the relatively frictionless methodology by which digital service providers can compensate rightsholders for the use of their services across multiple territories".

"In such instances", it adds, "the costs of foreign collection are negligible, and the grossly deficient payment of foreign streaming royalties by defendants simply reflects their ability to manipulate their foreign affiliate practices with no commercial justification beyond self-enrichment".

Regarding Warner's alleged failure to communicate the international deductions, the lawsuit adds: "Defendants purposefully and knowingly withhold and fail to inform plaintiffs and the class members of the existence of their practices in WMG's accounting statements, which represent that foreign streaming royalties are being paid based on an unqualified percentage of revenues earned by the artist's recordings".

"The lack of qualification is not merely implicit, but explicit", it then claims, "as the 'royalty rate reductions' columns display emdashes indicating no reductions are being applied. As such, plaintiffs and class members have no way of knowing their royalties for international streams are based on reduced figures, nor any reason to suspect the representations on their statements are false".

As noted, international deductions of this kind are a common gripe in the artist community, as is the lack of clarity regarding quite when such deductions occur. On newer record deals, digital royalties are often calculated on at-source income globally with no deductions, albeit with a slightly lower top line royalty possibly applying in some markets. However, on older deals international deductions can still be common place.

This gripe has led to litigation before. In terms of Warner Music, until recently it was fighting another lawsuit on this issue filed by musician Lenny Williams. His attempts to get his lawsuit classified as a class action failed due to various technicalities, while the wider dispute was reportedly settled out of court earlier this year.

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US music publishers are going after unlicensed apps, starting with Vinkle
A group of music publishers rallied together by the US National Music Publishers Association last week filed a lawsuit with the courts in San Francisco against the Chinese owner of Vinkle, an app which describes itself as a 'music video maker'.

The lawsuit alleges that Vinkle is built upon a huge catalogue of unlicensed music. According to Billboard, legal reps for the publishers argue that "apps like Vinkle, in today's social media environment, are becoming increasingly aggressive in misappropriating music owned by members of the music publishing community".

"These apps simply take the music and earn significant profits off the backs of songwriters and music publishers", they add, "all the while knowing - but disregarding - that they must obtain a licence to use the music, assuming they will never get caught".

Fans of appy lawsuits of this kind might be in for a treat, because last week the boss of the NMPA, David Israelite, said that going after apps that use music without licence was now a priority for the trade group. Aside from organising the Vinkle litigation, it has also sent cease and desist letters to about 100 other app makers. Which sounds like fun.

Meanwhile, for those app makers who argue that licensing music is just far too complicated, the NMPA has also announced an alliance with Songclip, the company that aims to make it easier to access music for use in app products, which previously announced deals with Warner Music and Universal Music.

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Promotions galore at Polydor
Universal Music UK has announced some promotions at its Polydor Records label. And these are all occurring with immediate effect no less. So you all need to update your rolodexes immediately.

And also get a rolodex. And also buy a time machine to go back to whatever year it was when people still used rolodexes. And, if you're under the age of 45, probably Google 'rolodex' to see what fuck I'm talking about. Done that? Good.

Right, where were we? Oh yes, Stephen Hallowes and Jodie Cammidge - previously Director Of Marketing and Promotions Director at Polydor Records respectively - are now co-Managing Directors of the label. And Semera Khan is now Senior Director Of Creative and Luke Ferrar is Senior Innovation Director.

Confirming all this, Polydor President Ben Mortimer says: "These promotions reflect Polydor's vision of what a modern record company should be, with music, creativity and innovation at the heart of the label. Stephen exemplifies a modern executive, as kind and thoughtful as he is driven and intelligent. Jodie is well loved by artists, managers and the wider industry with deep relationships not just in promotions but across the industry both here and abroad".

"Together they complement each other brilliantly", he goes on, "and alongside Semera and Luke - who as anybody will tell you are stars - they have played massive roles in Polydor's huge success over the last few years. It feels great to be able to recognise that".

Do you know what would be even greater? If we all got ourselves a nice new rolodex to document these promotions. And look, they still sell them! For some reason. And a bargain at just £31.54!

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Spotify completes acquisition of audiobooks firm Findaway
Spotify last week confirmed it had completed its acquisition of Findaway, a leading audiobook distributor.

The completion of the deal follows the recent Spotify Investor Day where the streaming firm's CEO Daniel Ek talked about a grand plan to push into the audiobooks sector in the same way the company previously moved beyond music and into podcasts.

Justifying his strategy of recent years to diversify Spotify, so it moved from being a music platform to a much wider audio platform, Ek said that audiobooks were now a high priority, noting: "We believe that audiobooks, in their many different forms, will be a massive opportunity".

Confirming that the previously announced Findaway deal had now completed, Spotify said that its new acquisition "works across the entire audiobook ecosystem with a platform and offerings that serve authors, publishers and consumers. Their technology will help propel Spotify into the rapidly growing audiobooks industry with substantial market opportunity: the audiobooks market is expected to grow from $3.3 billion to $15 billion by 2027".

"Findaway's technology infrastructure will enable Spotify to quickly scale its audiobook catalogue and innovate on the experience for consumers", it added, "simultaneously providing new avenues for publishers and authors to reach audiences around the globe. Chapter one begins today".

Spotify's push into audiobooks was discussed in this recent edition of our Setlist podcast.

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UK asked to host Eurovision in 2023, Ukraine asks for more time to prepare
The European Broadcasting Union has said that it plans to begin discussions with the BBC about hosting next year's Eurovision Song Contest, after deciding that it will not be possible to stage the event in this year's winning country, Ukraine.

While many in the UK have welcomed this news, it has also proven controversial, with Ukraine's Culture Minister Tkachenko Oleksandr and British Prime Minister 'Boris' Johnson both saying that Ukraine should be given more time to confirm how it could stage the show. The problem, of course, is that Ukraine is at war with Russia, and there is no clear sign when that could end.

Following Ukraine's win in May, the country's Prime Minister Volodymyr Zelensky said in a statement: "Our courage impresses the world, our music conquers Europe! Next year Ukraine will host Eurovision! For the third time in its history. And I believe not the last. We will do our best to one day host the participants and guests of Eurovision in Ukrainian Mariupol. Free, peaceful, rebuilt! Thank you for winning [Kalush Orchestra] and everyone who voted for us! I am sure that our victorious chord in the battle with the enemy is not far off".

However, in a statement on Friday, the EBU said that the Eurovision show is only ever allowed to be hosted in a country that can provide guarantees on "certain criteria" including "the safety of all stakeholders". Given the long lead time required on organising the show, the organisation says, Ukraine has been unable to provide these assurances and, as a result, "next year's Contest cannot be held in Ukraine".

"It has become a well-known tradition that the winner of the Eurovision Song Contest hosts the competition the following year, providing certain criteria including ensuring the viability of staging the event and the safety of all stakeholders, including the public, are met", said the EBU. "Given the ongoing war since the Russian invasion of this year's winning country, the EBU has taken the time to conduct a full assessment and feasibility study with both [Ukrainian broadcaster] UA:PBC and third-party specialists including on safety and security issues".

"The Eurovision Song Contest is one of the most complex TV productions in the world with thousands working on, and attending, the event and twelve months of preparation time needed", it went on. "Following objective analysis, the Reference Group, the ESC's governing board, has with deep regret concluded that, given the current circumstances, the security and operational guarantees required for a broadcaster to host, organise and produce the Eurovision Song Contest under the ESC Rules cannot be fulfilled by UA:PBC".

"As a result of this decision", it concluded, "in accordance with the rules and to ensure the continuity of the event, the EBU will now begin discussions with the BBC, as this year's runner up, to potentially host the 2023 Eurovision Song Contest in the United Kingdom. It is our full intention that Ukraine's win will be reflected in next year's shows. This will be a priority for us in our discussions with the eventual hosts".

The BBC followed this with a statement saying that while "these aren't a set of circumstances that anyone would want" it "will of course discuss the BBC hosting the Eurovision Song Contest".

Although the EBU's statement made it very much sound like its decision regarding where the 2023 Contest will be held was final, there have subsequently been some calls for a rethink.

Ukraine's Culture Mininster Tkachenko Oleksandr said in a statement following the EBU's announcement: "Ukraine does not agree with the nature of such a decision - when we were confronted with the fact without discussion on other options. But we strongly believe that we have every reason to hold further negotiations in order to find a joint solution that will satisfy all parties".

"We honestly won Eurovision and have fulfilled all the conditions within the deadlines for the process approving its holding in Ukraine - we have provided answers and guarantees on safety standards and possible venues for the competition", he continued. "Hosting Eurovision 2023 in Ukraine is a strong signal to the whole world that it supports Ukraine now".

"We will demand to change this decision, because we believe that we will be able to fulfil all the commitments, as we have repeatedly emphasised it to the European Broadcasting Union", he finished. "That is why we demand additional negotiations on hosting Eurovision 2023 in Ukraine".

UK Prime Minister Boris Johnson also urged the EBU to reconsider, telling reporters as he returned from an impromptu visit to Ukrainian capital Kyiv: "The Ukrainians won the Eurovision Song Contest. I know we had a fantastic entry, I know we came second and I'd love it to be in this country. But the fact is that they won and they deserve to have it. I believe that they can have it and I believe that they should have it. I believe Kyiv or any other safe Ukrainian city would be a fantastic place to to have it".

However, elsewhere, in an article published in The Times on Saturday on the military situation in Ukraine, Johnson wrote that "we need to steel ourselves for a long war" in the country, reckoning that Russian President Vladimir Putin is resorting to a campaign of attrition, "trying to grind down Ukraine by sheer brutality. Time is the vital factor", he added. "Everything will depend on whether Ukraine can strengthen its ability to defend its soil faster than Russia can renew its capacity to attack. Our task is to enlist time on Ukraine's side".

That gloomy prediction suggests that Ukraine hosting next year's Eurovision isn't necessarily a realistic ambition. Nevertheless, a spokesperson for Ten Downing Street reiterated that "as the rightful winner the government's firm wish has been to see next year's Contest hosted" in Ukraine.

However, they added: "If the EBU decides the competition can't go ahead in Ukraine we would of course welcome the opportunity to work closely with Ukraine and the BBC to host it here in the UK. But we would be committed to ensuring it overwhelmingly reflects Ukraine's rich culture, heritage and creativity, as well as building on the ongoing partnership between our two countries".

Several British cities have already expressed an interest in hosting the event should it come to the UK, including Manchester, Leeds, Liverpool, Edinburgh and Glasgow.

The latter was backed with Scottish First Minister Nicola Sturgeon, who said in a tweet: "We wish Eurovision could be in Ukraine but understand that in circumstances this isn't possible. However, I can think of a perfect venue on banks of the River Clyde! [The Scottish government] is happy to discuss with BBC, [Glasgow City Council, the EBU] and more".

Whether or not the EBU can be convinced to give Ukraine more time to shore up its position remains to be seen. The country has hosted the Contest amid tensions before.

It was staged in Kyiv in 2017, three years after Russian annexed Crimea. Russia complained that Ukraine had won in 2016 with a song about its military action in the region, thus breaking the competition's 'no politics' rule. But Ukraine argued successfully that the song - '1944' - was about an entirely different Russian military action in Crimea and had not relation to what had gone on more recently.

In the end, Russia did not take part in that year's Contest, after Ukraine threatened to arrest Russian performer Julia Samoilova if she entered the country, as she appeared on a blacklist of artists who had recently performed in Crimea.

Tensions then, of course, had not developed into a country-wide military conflict, which meant Ukraine was able to satisfy the EBU's safety concerns.

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Justin Bieber postpones remaining tour dates as Ramsay Hunt syndrome treatment continues
Justin Bieber has postponed the remainder of his North American tour following his recent diagnosis with Ramsay Hunt syndrome.

The singer shared the news that he was being treated for the rare condition earlier this month, in a video in which the facial paralysis that it causes could be clearly seen. He assured fans that he would make a full recovery, but added that it would take time and "we don't know how much time it's going to be".

Having initially only cancelled a handful of dates, he has now pulled the remainder of his current North American tour, as he continues his recovery.

In a statement, promoter AEG Presents said: "In light of Justin's ongoing recovery, the remaining US Justice Tour shows scheduled for June and early July … will be postponed".

"Justin continues to receive the best medical care possible, is upbeat about his recovery, and is looking forward to getting back out on the road and performing for his fans overseas later this summer", it added.

Details of rescheduled US dates will be confirmed in due course.

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Kate Bush's Running Up That Hill is finally at number one
So, Kate Bush is finally at number one in the UK singles chart with 'Running Up That Hill' thanks to [a] the kids still loving it and streaming it to fuck on the back of that big sync in Netflix show 'Stranger Things', and [b] the Official Charts Company removing a technicality that exists in its chart compiling systems to prioritise newer music.

Responding to the chart achievement on her website, Bush wrote: "The Duffer Brothers have created four extraordinary series of 'Stranger Things' in which the child actors have grown into young adults. In this latest series the characters are facing many of the same challenges that exist in reality right now. I believe the Duffer Brothers have touched people's hearts in a special way, at a time that's incredibly difficult for everyone, especially younger people".

"By featuring 'Running Up That Hill' in such a positive light", she continued, "as a talisman for Max, one of the main female characters, the song has been brought into the emotional arena of her story. Fear, conflict and the power of love are all around her and her friends. I salute the Duffer Brothers for their courage - taking this new series into a much more adult and darker place. I want to thank them so much for bringing the song into so many people's lives".

As for all the new love her 1985 track is now receiving, she added: "I'm overwhelmed by the scale of affection and support the song is receiving and it's all happening really fast, as if it's being driven along by a kind of elemental force. I have to admit I feel really moved by it all. Thank you so very much for making the song a number one in such an unexpected way".

Commenting on all this for the Official Charts Company, CEO Martin Talbot says: "It has been fantastic to see the iconic Kate Bush climbing up the Official Singles Chart with 'Running Up That Hill' - and to see her breaking a slew of records into the bargain. The way that a new generation of music fans have taken her classic track to their hearts really does cement Kate's position as an all-time great, if that were at all necessary".

Although originally released by EMI, the track is now distributed by Warner Music via its Rhino UK division - the mini major having acquired a chunk of the EMI UK catalogue as a result of a regulator intervention when Universal Music bought the wider EMI record company in 2012. Since then it seems Bush regained control of her recordings, which are now released by her own label Fish People, but which still works with Warner on distribution.

This is a long-winded way of explaining why there's a quote here from Myn Jazeel, Senior Vice President at Rhino UK, who says: "It's long overdue that 'Running Up That Hill (A Deal With God)' by the truly amazing Kate Bush should finally top the UK charts".

"This phenomenal cultural moment came about after close collaboration between Kate and her team, Netflix and the Warner Music sync team", he adds, "and without doubt we've seen that a cross-generational connection has been made, with a new audience in the UK and around the world joining Kate's existing fanbase to discover and honour her timeless brilliance".

"The success of 'Stranger Things', backed by Netflix, has been instrumental in creating this moment, so we must thank them", he goes on. "But our congratulations go out first and foremost to Kate. 'Running Up That Hill' went to number three in the UK when first released in 1985, so we're delighted that it's reached number one almost 40 years later".

"It's also gratifying that Kate's wider catalogue is now being discovered and enjoyed by a whole new audience", he concludes. "This whole occasion feels incredible for all involved, and that's why we work in catalogue music, for moments like this that have such broad cultural relevance and impact".

Good times! And with the OCC now confirming that 'Running Up That Hill' is likely to still be at number one on Friday, let's do all of the following...

1. Note how wonderful it is that a sync in a TV show can result in young people discovering a great pop song of old.

2. Note how depressing it is that it takes a sync in a TV show for young people to discover a great pop song of old.

3. Do some post-it note maths and remark how wonderful it is that - thanks the way the streaming business model works - a classic 1985 track is now generating tens of thousands in new royalties every day thanks to its millions and millions of streams.

4. Do some post-it note maths and remark how depressing it is that - thanks the way the streaming business model works - a classic 1985 track is now only generating tens of thousands in new royalties every day despite its millions and millions of streams.

5. Consider how, with all the music available all the time on streaming services, it's wonderful that old tracks can become so popular so quickly with a whole new audience.

6. Consider how, with all the music available all the time on streaming services, it's depressing that old tracks can suddenly become so popular with a whole new audience that they take away streams and therefore royalties from all those new artists trying to make a go if it.

Or maybe we could all just say "well done Kate and her crew" and get on with our lives. Stranger things have happened.

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