📑 CMU Digest: Donald Trump's music prob lem + more states join DOJ v Live Nation

CMU Digest is our weekly round-up of the most interesting music business news stories from the last seven days.

This week: Beyoncé and the Isaac Hayes estate both respond to Donald Trump’s use of their songs, with a cease and desist letter and lawsuit respectively. The major labels ask the US Supreme Court to intervene in their legal battle with Cox Communications. Rachel Chinouriri cancels US support slots over budget concerns. More states join the US government’s Live Nation litigation, plus an amended lawsuit sets out the case for treble damages. AI company Anthropic asks a US court to cut back a lawsuit filed by a group of music publishers.

ICMYI: Massive Attack criticise live sector’s climate (in)action; CMA ends investigation into Apple’s in-app payment rules; storms cause cancellations and delays to UK live music; comedians v Pandora legal case continues; German record industry gets injunction against stream manipulation site; US court dismisses Spotify lawsuit from Eminem publisher; New Zealand ready to extradite MegaUpload founder to the US.

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Music industry lawyers went after the Trump campaign again

Beyoncé’s record label and music publisher sent a cease and desist letter after Donald Trump’s campaign spokesperson Steven Cheung posted a video to X featuring ‘Lemonade’ track ‘Freedom’, which has been regularly used by the Kamala Harris campaign. Harris has permission to use the track, but Trump does not. Using music in election campaign ads constitutes a sync, so a licence is needed from the relevant labels and publishers.

When music is used at political events it’s slightly more complicated, because - under US law - no licence is required for the recording, and use of the song may be covered by blanket licences from collecting societies like BMI. That didn’t stop the estate of Isaac Hayes from suing the Trump campaign over its use of ‘Hold On, I’m Comin’ at rallies. The estate has now excluded the work from Trump’s BMI licence, though legal claims over past use may be stronger in the context of videos of those events on social media, which arguably constitute a sync too.

The major labels asked the US Supreme Court in intervene in the Cox legal battle

In 2019, the major record companies won a lawsuit that accused internet service provider Cox Communications of contributory and vicarious copyright infringement, for - respectively - contributing to and profiting from the direct infringement of its users, who had been illegally sharing music via their Cox internet connections. A jury then awarded the labels a billion dollars in damages. An appeals court upheld the contributory infringement part but not the vicarious infringement element. As a result the damages bill is now being reviewed and will likely be cut.

The majors want the Supreme Court to review the case and reinstate the vicarious infringement claim. That all comes down to how you define ‘profiting’ from the infringement of others. Do you need to directly profit from the infringement itself, which Cox did not, or is it enough to profit from selling an otherwise legitimate service that facilitated the infringement? The labels argue that the appeals court answered that question wrong.

Cox also wants the Supreme Court to review the case, though it wants the contributory infringement claim to be overturned, arguing that - if it stands - ISPs will be forced to cut off any customer accused of any piracy by a label.

Rachel Chinouriri cancelled US shows, putting spotlight back on cost of touring crisis

Chinouriri had been due to play support slots on Remi Wolf’s US tour, but said that the financial strain of doing so had become “too much”. The economics of touring are currently challenging for all but the superstar artists, with travel and production costs surging. UK artists playing the US are also facing an increase in visa costs, in some cases a fourfold increase. Meanwhile support slots have always been particularly challenging, as artists are often paid a modest fixed fee, rather than a share of the box office with a guarantee from the promoter.

By CMU’s ‘back of an envelope’ estimations, Chinouriri’s booking to play ten of Wolf’s shows could incur nearly $5000 in visa fees and production costs of $50,000 or more - before anyone has even been paid. The scale of Wolf’s shows means it’s unlikely the fees offered to the support act would get close to covering those costs, making it unsurprising that Chinouriri “cannot justify the financial risk” the US shows would entail.

More states joined the US government’s competition lawsuit against Live Nation

When the US Department Of Justice sued Live Nation over allegations of anticompetitive conduct back in May, the legal action was supported by the Attorneys General of 28 states. Another ten states have now joined the litigation, which is ultimately seeking a court order that would force Live Nation to sell its Ticketmaster division, reversing the 2010 merger of the Live Nation venue management and concert promotions company with the ticketing business.

Some of the states involved in the lawsuit have included claims for damages on behalf of their citizens who have been negatively impacted by Live Nation’s alleged conduct. An amended lawsuit notes that federal competition law in the US allows the Attorney General of each participating state to “obtain treble damages on behalf of natural persons” under the Clayton Act, which could greatly increase the level of any damages awarded as part of this litigation.

Anthropic asked the court to cut back the lawsuit filed by a group of music publishers

The music companies accuse the AI business of direct copyright infringement for using their lyrics to train chatbot Claude without permission. The lawsuit also includes ancillary claims for contributory and vicarious infringement, relating to allegations that users have used Claude to generate lyrics that infringe the publishers’ copyrights, and Anthropic contributed to and profited from that infringement. The AI company is also accused of removing copyright management information from music files in breach of copyright law.

These claims should be dismissed, Anthropic says, because there is no evidence any user has ever generated lyrics with Claude that infringed the publishers’ copyright. And it is yet to be demonstrated that it “intentionally” or “knowingly” removed or altered any copyright management information. If the court did dismiss those claims it would just leave the core allegation that the training of Claude was copyright infringement, an allegation which Anthropic says it will respond to in due course. When it does it will present a fair use defence.