8Sided Blog

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Content ID’s Closed-Door Controversy

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There’s continuing controversy over YouTube’s Content ID rights management platform. You might think I’m talking about content creators complaining about video takedowns for music violations. But I’m actually referring to the growing number of artists demanding direct access to the Content ID tools.

Here’s a quick overview of Content ID from the artist’s perspective: a song submitted to YouTube’s Content ID system is available to creators for use in videos without extra permissions. Content ID will auto-magically identify when songs in its library appear in YouTube videos. The artist (or other rights-holder) can then elect to block the video, monetize the song’s placement in the video (via advertising), or forgo either action by ‘white-listing’ the video. Most of the songs in a major label’s catalog and many independents are a part of this Content ID library.

The problem is that artists and labels can only access these tools through a YouTube-approved third party. This party is usually someone like AdRev or a distributor like Symphonic. As expected, in the monetization option, the third parties will take a cut of any income. Some artists find a mandatory reliance on a third party aggravating, especially when giving up a share of the money is unavoidable.

There is a lawsuit against YouTube filed by artist Maria Schneider and the company Pirate Monitor to challenge this requirement, arguing that Content ID should open up direct access to anyone. The brunt of the argument rests on the challenges of those who can’t utilize Content ID. That is, if a song used in a video is not in YouTube’s system, the reporting and takedown process is inadequate and ineffective. In that case, the artist or label would manually ‘flag’ the video and wait for YouTube to take action. As you can imagine, it’s not an effective process.

YouTube argues that Schneider is not affected by any deficiencies in its approach, as reported in Complete Music Update. She uses a third party already, says YouTube, so she’s an example that the tools are readily available to anyone. Pirate Monitor also has its issues: 

As for Pirate Monitor, YouTube is more scathing about its involvement in the lawsuit. The counterclaim makes various allegations about the conduct of the anti-piracy firm, concluding that that conduct demonstrates why Content ID access is not available to all. It accuses Pirate Monitor of setting up various anonymous accounts on YouTube, uploading snippets of films controlled by its clients, and then issuing takedown requests against those uploads.

Perhaps, but one could look at Pirate Monitor’s alleged actions as to why Content ID should be more widely available. It’s become another system that encourages ‘gaming’ from those left out of its tools. 

You probably know my opinion. The point isn’t that Schneider has the access — it’s that she’s beholden to a third party to get it. With that in mind, I’d say an artist who licenses music under Creative Commons has a better case. 

I’ve written previously about Kevin MacLeod, a musician who allows free use of his music in anyone’s videos.1This strategy has paid off as MacLeod has gotten quite a few paid music gigs based on the widespread appearance of his music. A third party will not represent him because he doesn’t want to make money off YouTube placements — there’s no income and no cut. But, he needs the protection Content ID provides. MacLeod has run into others downloading his music and illegitimately submitting it to a service like AdRev without his knowledge. The videos with MacLeod’s songs are then monetized against his will with the income going to some shadowy figure. 

There’s little that MacLeod and others like him can do when this happens. They can’t access Content ID, the third parties reject them for representation as there’s no income, and YouTube — as expected from a huge corporation — is slow to respond (if at all). MacLeod eventually got YouTube’s attention, but it took a long time repeatedly pleading with the company. YouTube’s eventual solution? They gave MacLeod direct access to Content ID. It’s that easy — YouTube should find a way to open up Content ID for all. 

Incendiary and Extraordinary

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• Tomorrow is Juneteenth, and it’s the first Juneteenth that Bandcamp is donating all of its 15% sales take to the NAACP Legal Defense Fund. They’ll also allocate “an additional $30,000 per year to partner with organizations that fight for racial justice and create opportunities for people of color.” I say it’s the first as Bandcamp pledges to make this an annual thing. Many artists and labels are following suit, promising their sales shares to civil rights organizations, too. So, hey — let’s grab some music. This event is an excellent opportunity to revisit this Reddit discussion on Black ambient and experimental artists to support and this searchable site of Bandcamp’s Black-owned labels and artists. 

• Here are a couple of quick links to incendiary and extraordinary examples of Black art: the 1986 film Handsworth Songs is experimental documentary filmmaking at its best, via John Akomfrah and the Black Audio Film Collective; and this NY Times article from Marcus J. Moore compiling ’15 Essential Black Liberation Jazz Tracks.’ [LINK] + [LINK]

• Twenty Thousand Hertz is an informative podcast that delves into the “world’s most recognizable and interesting sounds.” The latest episode is about a topic near-and-dear to my heart: music copyright lawsuits. The host, Dallas Taylor, examines the ‘theft or inspiration?’ dilemma and lucidly explains the legalities. The podcast episode serves as a good explainer for those who want to know more about the topic and has a few interesting new perspectives for been-down-that-road folks like me. For what it’s worth, I don’t think any of the cases brought up in the episode should have gone to court. I do understand the potential dangers of broadly loosening our parameters on copyright, but letting experts decide on music theft disputes rather than a jury is a better idea. I wrote more about this topic here. [LINK]

• As you know from previous ramblings, I’m thinking a lot these days about how I use the online medium and the digital footprint I’m leaving. I’m playing around more with micro.blog and this site’s connected ‘micro-8sided’ blog. I’m trying out an idea of the microsite as an idea repository — a placeholder for things I’m reading, listening to, and thinking. It looks like this: short ideas and notes jotted down in the microblog, longer and better thought-out pieces on this ‘main’ blog and the email newsletter. I can use the micro to access things that grabbed my interest, expanding on some of those topics here and in the newsletter. That means the microblog provides a peek at what I’m thinking about as a preview to topics appearing here. At least, that’s how it works in theory. I may chuck it all later this week, depending on how time-consuming a labyrinth of thought this turns out to be. Oh, and as I’m lessening my presence on targeted-ad-fueled social media, micro.blog now crossposts to Twitter, and I’ll aim to visit that place less and less. Bye-bye to Facebook, too.

• Here’s a gorgeous ambient track from Dedekind Cut, an artist (and song) recommended in the Reddit thread I mentioned above.

• Lake Holden held a surprise this morning at dawn. Spot the moon. [LINK]

Are We Running Out of Notes?

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In the mid-70s, a music scholar, maybe a professor, definitely someone we’d now call a ‘musicologist,’ wrote an alarming letter to Rolling Stone magazine. He stated that, by his estimation, within a few years the notes would run out. That is, musicians were about to exhaust all available music notes in every possible timing and context. He warned that soon there would be no more original songs. 

Beneath this letter was a response from John and Yoko. They were apparently enlisted by Rolling Stone to address this crisis. Their two-word reaction to song-pocalyspe: “Lighten up.“

I should point out that I can’t verify this happened. I saw the exchange printed somewhere many years ago, but I can’t find evidence online. Regardless, it’s no surprise that for decades music intellectuals have raised concerns about a limit on new songs. And that the songwriters have always reacted with a shrug.

The notes are only part of a song. Also critical: instrumentation, dynamics, performance texture, tempo, studio trickery — the list goes on. Those notes don’t seem as limited when we take these extra elements into consideration. But it’s still reasonable to imagine a few people coming up with similar melodies. And if some of those other elements align, then there might be a raised eyebrow or two. Is it plagiarism?

I’m not saying everyone is innocent of copying notes or lyrics or songs outright. But we’re led to believe it intentionally happens a lot less than it does. A dirty little secret is that songwriting isn’t all that difficult if you know what you’re doing. Having a ‘hit’ song is tough, but all of those elements I mentioned above — and some additional ones, like charisma and promotional budgets — contribute to making it a hit, too. When you think about all the potential downsides, it’s a lot easier to write a song than steal someone else’s.  

Minneapolis-based ‘record selector’ Mike 2600 has an amusing YouTube series called Songs That Sound The Same. Using two turntables (and I suspect some pitch manipulation), he goes beyond the ‘mash-up,’ drawing attention to songs that share an uncanny resemblance. This one‘s a lot of fun. As is this one and this one. 

A lot of Mike 2600’s comparisons rest on similarities in chord changes and sequences, a chord being a combination of usually three notes providing a bed for melody. Combinations of chords are a lot more limited than those of individual notes. There are a lot of similarities out there for Mike 2600 to choose from.

Mike 2600 could do one of these videos for “Stairway To Heaven” and Spirit’s “Taurus.” Maybe he has, but probably not — that resemblance is so well known it’s low-hanging fruit. Journalist Michael Skidmore thought he’d reach for that fruit when he filed a plagiarism suit on behalf of the late Spirit frontman Randy Wolfe. The two songs’ similarity elicited murmurings since the release of “Stairway To Heaven,” but the lawsuit didn’t appear until 2014. 

Yes, the iconic opening riff of “Stairway To Heaven” is bizarrely similar to “Taurus.” But so are a lot of things. The same descending chromatic chords, as noted in defense arguments, are found in the music of JS Bach and Henry Purcell, and also the song “Chim Chim Cher-ee” from Mary Poppins (which puts Led Zeppelin in an unlikely context). There are only so many chords used in so many ways.

Last week, judges agreed and cleared Led Zeppelin of wrong-doing. But the ruling added another twist — the court’s dismissal of ‘the inverse ratio rule.’ What’s that, and why is it interesting? Let’s dig in.

Understand that plagiarism doesn’t have to be intentional to warrant legal punishment. If it’s believed that you heard a song anytime and anywhere, then the plaintiff can argue it’s possible that plagiarism occurred, whether you meant to do it or not. The more famous a song is the easier it is to make this argument. George Harrison encountered this notion when “My Sweet Lord” was accused of copying The Chiffon’s “He’s So Fine.” The latter was a massive hit in 1963, at the same time The Beatles were making no secret of their admiration for American R&B. So the jury was convinced that Harrison, at the very least, unconsciously copied that song. 

This idea of access and sublimation came to its ridiculous conclusion in the recent case of Flame vs. Katy Perry. In my opinion, that case was already absurd, involving two somewhat similar and short melodic phrases representing modern pop’s zeitgeist. But Flame’s attorney argued that since his client’s song had 6 million online plays — spread out among platforms like YouTube and, yes, MySpace — it was undoubtedly, at some point, heard by the writers of Perry’s song. The jury ended up agreeing. 

Taken further, it seems the internet demolished the limitations of access. It’s now presumed that everything is available — how are 6 million streams on YouTube any different than an emerging artist appearing on an obscure but influential Spotify playlist? Arguably the potential for accidental thievery is the same. Almost all music is available by tapping the screen of a smartphone, so the idea of access is passé. The court in Led Zeppelin’s case recognized this change in our culture, and the ‘inverse ratio rule’ — which gave preference to the more widely distributed song — is toast.

There are other ways that technology alters our concepts of plagiarism. Let’s consider how companies like Splice are affecting musical ownership. Splice is a market-place for sounds, where recording artists can download loops and phrases to use in their own songs. After paying a subscription fee, the user is given these sounds as ‘royalty-free’ sonic building blocks. That means an artist can use these bits in a commercial recording without royalties or attribution to Splice, and claim the rights to the song as her own. No one owns Splice’s sounds — they can be used simultaneously in any number of songs. 

Of course, this model reached an inevitable outcome. A melodic loop from Splice was used in a song by — of all people — Justin Bieber. Within 24 hours of that song’s release, artist Asher Monroe accused Bieber of ripping off the instrumental hook from his song. But they both got the phrase from Splice. As did many other artists, including Korean hip-hop artist YUMDDA. According to The Verge, that leads to another 21st-century problem:

Because Monroe and YUMDDA’s songs have portions with the unaltered sample and nothing else, Shazam gets confused. The app sometimes identifies Monroe’s track as YUMDDA’s, and vice versa. But it has no trouble identifying Bieber’s song, likely because there are other percussive elements always layered on top of the sample.

And now here’s something else:

Damien Riehl — a lawyer, coder, and musician — and Noah Rubin pulled an impressive stunt. They wrote a program to generate every possible melodic combination of notes. The program then stored all 68.7 billion melodies to a hard drive. But rather than using up all the songs, as the Rolling Stone letter-writing musicologist feared, Damien and Noah put the contents of the hard drive in the public domain. All melodies are now free to use, they argued. From here forward, lawsuits for copyrighted note sequences are all frivolous. 

Of course, Damien and Noah’s effort is meant to make a statement and probably won’t change anything. The Led Zeppelin ruling will have more effect on songwriters (as will the appeal-in-progress on the Katy Perry suit). But it makes an interesting point. And it helps highlight the limited nature (and mathematics) of notes, and how subconscious plagiarism could become an outdated concept now that we’re subconsciously consuming everything. 

UPDATE: Soon after I wrote this post, Katy Perry and her co-writers won their appeal and the judge overturned the plagiarism ruling.

This post was adapted from Ringo Dreams of Lawn Care, a weekly newsletter loosely about music-making, music-listening, and how technology changes the culture around those things. Click here to check out the latest issue and subscribe.

Sampling Non-Stop

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CMU’s Setlist podcast is running a fantastic series of shows on the ‘Top Ten Legal Battles’ in the music industry. The latest episode is about a European court’s recent judgment over a two-second sample from Kraftwerk’s “Metall auf Metall”. As I’ve covered on the blog, the defendant lost. It’s all quite fascinating, and the podcast covers the ins-and-outs. The hosts also include a short history of sampling litigation and an easy-to-follow explanation of the rights in play. Check it out:

The unsuccessful lawsuit over a short horn sample in Madonna’s “Vogue” is discussed in the history section. The hosts remark that the publisher for the sampled artist — The Salsoul Orchestra — used ‘new technology’ to identify the short sample. I would make a bet this technology is the website whosampled.com. Rights-owners often consult this site to find who sampled their artists. I speak from experience — someone once contacted me regarding one of my sneaky samples, revealed to the sampled artist’s publisher via that site.

In other sampling news, CMU also recently covered Drake successfully arguing fair use for one of his samples. The sampled artist was Jimmy Smith, with a snippet appearing in Drake’s “Pound Cake.” It’s a sample of a spoken word bit from 1982’s “Jimmy Smith Rap” where Jimmy states that “jazz is the only real music that’s going to last, all that other bullshit is here today and gone tomorrow, but jazz is, was and always will be.”

The case is curious because Drake cleared the recording — usually the only requirement in sample clearance — but Smith’s estate argues that he should have cleared the ‘lyrics’ as well. So, Drake went for a fair use defense for his appropriation of the lyrics.

I’ve written before how fair use is a tricky argument. There aren’t any set-in-stone conditions that qualify for fair use, but there are some loose guidelines. In the end, it’s left to the opinion of the court. And surprisingly (to me), the court ruled in Drake’s favor.

CMU:

In the words of the Second Circuit: “The message of the ‘Jimmy Smith Rap’ is one about the supremacy of jazz to the derogation of other types of music, which – unlike jazz – will not last. On the other hand, ‘Pound Cake’ sends a counter message – that it is not jazz music that reigns supreme, but rather all ‘real music’, regardless of genre”.

The court goes on: “‘Pound Cake’ criticises the jazz-elitism that the ‘Jimmy Smith Rap’ espouses. By doing so, it uses the copyrighted work for ‘a purpose, or imbues it with a character, different from that for which it was created’”. Which, the judges reckon, is sufficient to constitute fair use.

That’s a coherent and straight-forward opinion. But I still feel the ruling could have gone either way. As I’ve said before if you’re going to argue fair use then be ready to defend that in court. And keep your fingers firmly crossed.

🔗→ Artist News Business News Labels & Publishers Legal Setlist Setlist: Top ten legal battles – The Kraftwerk sampling case
🔗→ US appeals court rules that Drake’s Jimmy Smith sample is definitely fair use

How Songwriters Got Thrown Into a Minefield

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I’d like to highlight a couple of informative and disconcerting articles about the state of infringement litigation in the wake of the “Blurred Lines” decision. Both pieces are worth a full read.

In The New York Times, Jon Caramanica writes that It’s Got a Great Beat, and You Can File a Lawsuit to It:

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.

The idea that this might be actionable is the new twist. Every song benefits from what preceded it, whether it’s a melodic idea, a lyrical motif, a sung rhythm, a drum texture. A forensic analysis of any song would find all sorts of pre-existing DNA. […]

What’s left in its wake is a climate of fear. In some recent cases, you can sense pre-emptive gamesmanship, as when Taylor Swift gave a writing credit to Right Said Fred for a cadence on “Look What You Made Me Do” that recalled “I’m Too Sexy.” Or the rapid settlement Sam Smith reached with Tom Petty for perceived similarities between “Stay With Me” and “I Won’t Back Down.” Whether there was a direct borrowing didn’t seem to matter; the potential for the perception of theft was enough to instigate an arrangement.

A few years ago, I worked with a songwriter who unexpectedly received a writer’s credit on a previously unheard new song. No one contacted this songwriter beforehand — the credit just suddenly appeared on publishing statements. It turns out the ‘hook’ for the new song was similar to the chorus in a well-known composition the songwriter penned in the ’70s. My songwriter friend didn’t mind and probably wouldn’t have litigated, but was happy with the outcome — the new song ended up a worldwide , resulting in a nice payout.

I’m sure this decision — as is the case with most of these preemptive moves — was made by the label’s legal team. I imagine a group of on-staff musicologists pouring over every potential hit song looking for the vaguest of similarities. The lawyers are alerted of any resemblance and the original writers are proactively paid off with a credit and publishing share. I find this risky as it informs the original writer of the similarity. Even with the credit, I don’t think anything is stopping a writer from claiming copyright infringement, that it’s an unauthorized derivative work. A court might see the publicly acknowledged credit as admission. But of course, payment for essentially doing nothing is appreciated, so why bother with the hassle of going legal, right?

In Rolling Stone, Amy X. Wang explains How Music Copyright Lawsuits Are Scaring Away New Hits:

While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. […] “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” [Katy] Perry’s lawyer Christine Lepera warned in the case’s closing arguments. […]

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” [prodcuer and songwriter Ross]Golan says. “People are using the same sample packs, the same plug-ins, because it’s efficient.”

Instrument plug-ins, to be intuitive and easy to use, tend to push users in creative directions. Certain built-in sounds rise to the top, as do sequences and arpeggiations included in the presets. Though these are sounds and one can’t necessarily be sued for a sound (though it has happened!), the inspiration provided by the built-in options potentially send producers to common destinations. A similar five-note motif using a shared patch or a melodic run from an embedded sequence pattern opens up an incentive to take action. Based on what we’ve seen, it’s uncertain a jury would understand the nuance.

And there are potential problems with services like Splice that offer samples and construction kits used by multiple producers. More than one song can easily feature the same melodic building block, and some sample pack offerings from Splice and other services even include lyrics. If a song based on a Splice melodic loop becomes a hit, what happens to the other songs using the same hook?

With copyright protectors like Content ID, it’s who-gets-there-first when it comes to commercially available sample packs. If there’s more than one song using a sample pack melody, the first applying for Content ID stakes the claim. Other songs using that melody might get flagged. This issue has happened in the past with Apple Loops, as producers discovered if they used specific melodic loops included with Logic Pro, the songs would get blocked by YouTube for infringing an earlier song using the same loop.

Even if a sample isn’t used in its blatant form, or is obscured or twisted in the mix, it likely provides the same inspiration as other producers hearing the same sample. It’s not unrealistic to think similar ideas, melodies, or compositional seeds will result from a shared inspirational foundation. Unless there’s future legal clarification — or the courts decide to rely on experts rather than juries in infringement cases1Manager Lucas Keller says in the Rolling Stone article: “In British court, they’d just ask a musicologist to decide. In American court, we bring in 10 random people.” — paying out ‘damages’ and carving out writing shares will be an expected ritual for composers of hit songs.

The Legal Argument Formerly Known As Fair Use

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The definition of ‘fair use’ is a muddle. We can accept that fair use might apply if a derivative work doesn’t seek to earn a profit, transforms the original in some way, and won’t discourage purchases of the original work. But the key word there is ‘might.’ it’s all a bit vague, and, in the USA, the definition will vary court-to-court, case-to-case. If you’re going to claim ‘fair use,’ be prepared to defend your interpretation in the legal arena.

Prince’s representatives have tussled with fair use claims before, most famously losing the long-running ‘dancing baby’ case. It turns out a short snippet of a song playing in the background of a home video does fall under fair use. That makes sense.

In the most recent fair use case for the Prince estate, Kian Andrew Habib isn’t as fortunate. Via Complete Music Update:

[Prince’s estate] targeted six videos recorded and uploaded to YouTube by a man called Kian Andrew Habib. The estate’s reps argued that the recordings of Prince’s performance infringed the copyright in the songs being performed. […]

[Habib] reckoned fair use applied because his videos were “non-commercial and transformative in nature … used no more of the original than necessary, and had no negative effect on the market for the work”. […]

[However, a judge ruled that] Habib’s artistic decisions when filming Prince perform did not mean his use of the musician’s songs was “transformative in nature”. And while he may not have directly financially benefited from posting his content to YouTube, by bigging up his videos as being “rare” and “amazing” recordings of Prince performing live he drove traffic to his YouTube channel, thus ensuring he benefited from his use of the musician’s work.

So, there you go. Even though you’re not directly earning a profit, using someone else’s work to build your reputation or follower count qualifies as commercial gain in the eyes of the law. I’m no lawyer, but my sound advice is to be wary of the protective value of fair use.

🔗→ US court rules fair use didn’t apply to unofficial Prince videos on YouTube
🔗→ ‘Dancing Baby’ Wins Copyright Case

A Tale of Two Copyright Rulings

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This week saw a couple of big events in the world of music copyright. First off, resolution to the Kraftwerk “Metal On Metal” case in the EU courts, as mentioned previously. Here’s Complete Music Update:

The court said in a statement yesterday: “Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.

But what about the artistic freedom of the sampler that the German Constitutional Court was so concerned about? Well, the ECJ has put some constraints on its main ruling. […] In the words of the court: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’”. That conclusion is necessary, the court then added, to properly balance the rights of an intellectual property owner with the rights of artistic freedom.

There’s been the myth of a time allowance on samples, that if one samples only two-seconds (or another arbitrary small amount) then, legally, everything is okay. This has never been true in the short history of sample litigation. The issue is identifiably and uniqueness. If, say, a jury can point to a phrase and agree that it’s an unauthorized appropriation of a master recording (a sample) then it’s likely deemed copyright infringement. The length doesn’t matter.

The confusion is probably due to the lack of precedent and definition in the US courts. There hasn’t been a high profile episode like the Kraftwerk complaint yet. So, while the ruling of the EU court doesn’t necessarily say anything new (and it doesn’t add any new limitations, despite what some clickbait headlines might lead one to believe) it is good to have the context fully explained by a legal body.

Then there’s the court’s additional opinion on the artist who artistically messes with a sample to the point of ambiguity. Of course, that artist is in the clear — thanks, EU court — but that’s not so much because it’s ‘artistic freedom.’ It’s that ideally, no one would identify the errant sample in the first place. In other words, sample away. Just be sure to muck that thing up beyond all recognition.

The other big copyright news concerns this Katy Perry vs. Flame outcome. Rolling Stone:

A jury unanimously ruled that Katy Perry’s 2013 hit single “Dark Horse” improperly copied Christian rapper Flame’s 2009 song “Joyful Noise.” The nine-member federal jury in a Los Angeles determined that Perry and her co-writers and producers will owe [$2.78 million in] damages for copyright infringement. […]

Perry, who was not present when the verdict was read, testified that she had never heard “Joyful Noise,” nor heard of Flame, before the lawsuit. Her co-writers testified similarly. Flame’s lawyers responded that the song was widely distributed, with millions of plays on YouTube and Spotify, and reminded the jury of Perry’s origins in the Christian music scene. His team argued that Perry and her team had ripped off the main beat and instrumental line of “Joyful Noise.”

One remarkable aspect is the quoting of YouTube and Spotify plays as evidence that obviously everyone’s heard the song. Umm … okay. Have Spotify plays been argued as evidence in court before?

My feelings, but dialed down a bit, echo those of YouTuber Adam Neely in this video (and kudos for pointing out the similarity of the phrase in question to a famous song by The Art of Noise, which I haven’t seen anyone else mention):

Additionally, Flame’s Marcus Gray added in his original complaint that “Joyful Noise” has been “irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in ‘Dark Horse.‘” Of course, there are some kooky internet ‘theories’ out there about Katy Perry and the Illuminati. But I don’t know why people fear the Illuminati so much … if this all-powerful organization couldn’t help Katy Perry win this case then I doubt they’re competent enough to secretly run the world.1Though a hidden overload’s incompetency could explain the current state of affairs.

It’s Me and Your Granny on Bongos: Who Owns a Band Name?

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The proliferation of reunion tours by veteran acts — including bands formed over 50 years ago — is arguably a result of dwindling sales royalty mixed with the advanced age of the art form and its fans. The age factor inevitably leads to original members dropping off the bill, whether for ill health (or demise) or weariness of road life.

The New York Times examines the fine line of when your favorite band is no longer your favorite band because it’s missing key members — or even all its members:

“If it’s me and your granny on bongos, it’s the Fall,” the singer Mark E. Smith, who peremptorily hired and fired dozens of members of the Fall, once said. But only a few musicians can carry off such lordly “l’état, c’est moi” proclamations. Mick Jones might be on that short list.

Over the years, Foreigner has shed every main member of its early lineups until only Jones was left. But, argued Phil Carson, the band’s manager, “There’s only been one original member, ever. Mick handpicked everyone. We’ve had five or six keyboard players, almost countless drummers. If Mick Jones says it’s Foreigner, it’s Foreigner.”

{But Jones} sometimes misses shows, depending on his health. Last year, when he was forced to skip a show at a 10,000-seat arena in Tel Aviv, a fan told The Jerusalem Post he felt the night was “tainted with con.” {…} But Carson says fans enjoy Foreigner just as much whether Jones is onstage or in his slippers at home: “I’d say 90 percent of people at the shows have no clue who was in Foreigner.”

This piece also discusses an important topic that’s rarely brought up at band practice — the assignable ownership of a name:

Disputes over the rights to a band’s name are thorny because they combine elements of trademark law and contract law, said Loren Chodosh, an entertainment attorney whose clients have included Nada Surf and TV on the Radio.

Band names typically qualify as trademarks, and trademarks can be assigned by contract. “A band agreement, in a lot of ways, is like a prenup,” Chodosh said. “It’s about what will happen if things go wrong and somebody leaves, which nobody wants to talk about. Bands don’t start to hate each other until they’re successful.”

Most bands, Chodosh said, never establish contractually how the band trademark is owned. In the absence of a contract, she added, “Trademark law prevails. And because trademark law is not uncomplicated, it’s difficult to say who owns that trademark.”

Once a band feels like a growing concern (which may occur as early as the moment the band comes up with a name) it’s a good idea to determine where the band name resides. Does it follow all the band members, like the “last man standing” agreement Bobby Colomby of Blood, Sweat & Tears mentions in the article? What if the band splits in half? Is there indisputably a ‘band leader’ or defining presence that’s logically tied to the name? Figure this out. Get it in writing.

I think it was Mike Mills’s podcast interview with Brian Koppelman where he tells the story of REM’s band name agreement. If one band member called it quits REM would have to dissolve. So when Bill Berry left the band, he had to give explicit permission for REM to continue as a trio. I’m not sure if this was a legal requirement — that is, in writing, agreed upon by all band members — but my feeling is it certainly was.

🔗→ Reunion Tour! The Band Is Back! Wait, Who Are These Guys?

Spotify is “Effectively Suing Songwriters”

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Music Business Worldwide:

Yesterday (March 7), it emerged that four major owners of digital music services – Spotify, Amazon, Google and Pandora – had lodged legal appeals against the US Copyright Royalty Board’s recent decision to raise streaming royalties for songwriters (and music publishers) by 44%. That royalty rise, which previously looked locked in, is now in serious jeopardy.

Apple Music, in contrast, has accepted the new rates, and declined to challenge what’s viewed as an important pay hike for songwriters.

Remember when Kendrick Lamar and (reportedly) other artists threatened to pull music from Spotify over the arbitrary ‘hate conduct’ ban policy? Spotify quickly backtracked. This might be another opportunity for artists to show Spotify and the streaming industry who really needs who more.

And, as with privacy, Apple continues to brand themselves as the company that does the right thing. I’ll contain my cynicism (which I have for any corporate organization) and say ‘good on them.’

🔗→ Wait… Spotify is ‘suing songwriters’? What the heck is going on?

Spotify’s Rights Gamble in India

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Complete Music Update:

{Warner/Chappell} went to court in India last week ahead of Spotify’s long-awaited launch in the market. The mini-major is yet to agree to a deal with Spotify for India, and that deal would cover Warner’s Anglo-American songs repertoire as well as its recordings catalogue. {…}

Spotify’s solution to that problem was to argue that there is a compulsory licence available under Indian copyright law which means it can utilise Warner’s songs without a bespoke direct deal, providing it pays the royalties due under that compulsory licence. Warner argues that the compulsory licence Spotify is relying on doesn’t apply to on-demand streaming services, and it wants a court order confirming that fact. The legal spat is ongoing.

… and then via Variety:

Spotify, which finally launched in India last Tuesday — albeit without securing a deal with Warner Music — after months of delays, says that it has reached 1 million users on both its paid and free tiers in just under a week.

This impressive sounding news has spread quickly throughout the media. It’s almost like Spotify’s PR is actively pushing this ‘1 million users’ number to trumpet the importance of the platform in the Indian market, eh? One could even see a strategy similar to Spotify’s ascension in the US with regards to publishing rights — show that the music needs Spotify more than the other way around, and figure out the rights later.

The Verge, however, rains on this parade:

India’s total population is 1.34 billion people, but only about 150 million, or about 11 percent, subscribe to a music streaming service, according to a report by Deloitte and Indian music-industry body IMI published earlier this year. Of this 150 million, less than one percent of subscribers pay for a subscription and about 14 percent have a bundled subscription (such as Amazon Prime, or through a mobile contract). The remaining 85 percent stream music with free subscriptions. So, while 1 million is a large number, Spotify is reaching less than one percent of the Indian music streaming population, and it has likely signed up few paid subscribers.

… and the publishers are buckling down, according, again, to Complete Music Update:

… you might expect those publishers which do have deals with Spotify in India to be on the streaming service’s side. Except, Spotify’s interpretation of Indian copyright law extends the reach of compulsory licensing in India. And if there’s one thing all labels and publishers hate more than anything else, it’s the idea of the reach of compulsory licensing being extended.

That is the reason why, shortly after a board meeting of the {International Confederation Of Music Publishers}, the trade group’s Director General John Phelan stated: “Music publishers worldwide work in the interest of all creators and will fight for appropriate remuneration for all licensed use of their work. At the heart of this problem is the inappropriate use of music and the subsequent undervaluation of songwriters – Indian and international. ICMP and its members express their full support of Warner/Chappell Music in its actions”.

I’ll close with a damning observation from David Turner in today’s installment of his excellent Penny Fractions newsletter:

… this situation reminds me of Spotify’s early usage of pirated music to launch the company {as detailed in the new book Spotify Teardown}. The attempt to skirt Indian law in how they licensed the music of Warner Music Group isn’t bold or interesting, it’s just unethical.

This could get messy.

🔗→ Global music publishing group backs Warner in its Spotify spat in India
🔗→ Spotify India Reaches 1 Million Total Users in First Week
🔗→ Spotify just made a tiny dent in India’s fast-growing market
🔗→ Penny Fractions: Why You Must Read ‘Spotify Teardown’