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As Topshop fails to overturn Rihanna passing off ruling, does it set a precedent?
As previously reported, the retail firm had properly licensed the photo from its copyright owner - which wasn't Rihanna or her business partners - so there wasn't a case for copyright infringement. Meanwhile in the UK, unlike the US, there is not a separate 'image right' that celebrities can rely on to stop their identity being used in this way.
However, there is the so called tort of passing off. This is basically where one individual or company implies a formal association with another individual or company so that consumers believe they are buying a product or service that is endorsed by the latter when they are, in fact, not.
Rihanna's lawyers argued that the photo on the Topshop t-shirt was so similar to official photos used to promote her 'Talk That Talk' album (it was taken during a video shoot for said record) that it implied official endorsement. Which constitutes passing off. And the High Court agreed with that argument in 2013, as did three appeal judges this week.
At both first instance and on appeal the judges hearing the case were keen to stress that these judgements do not introduce a more general image right into English law, and the ruling centres on the facts of the case, which comply with the principle of passing off.
Though some legal experts reckon that said principle, traditionally interpreted in a very narrow way by the English courts, is slowly being widened in remit as the courts increasingly recognise the now established business of celebrity endorsement.
Which possibly gives more power to celebrities wishing to control the use of their image by commercial entities, and should therefore concern businesses that use celebrity images without official endorsement, even when they have properly licensed all the intellectual property in the images they use.
Meanwhile, we wait to see what damages Rihanna's team propose Topshop should pay, given her lawyers had previously asked that the retailer cover legal fees that topped £900,000, a figure the judge in the original case called "startling".
Jacksons appeal again for retrial of AEG litigation
As much previously reported, the Jackson family say that AEG, promoters of the ill-fated 'This Is It' concert venture, should be held liable for the singer's death as the employer of Conrad Murray, the doctor convicted of manslaughter for causing the popstar's death through negligent treatment.
Murray himself was left penniless after the death of his most famous client while on his watch, making it worthless for the Jackson family to sue him for the emotional and financial damage caused by their most famous son's demise. If AEG could be held liable as well, though, well, it has money.
But, while AEG didn't come out of the long-running trial considering the Jacksons' arguments especially well, a jury agreed with the live firm's key arguments: mainly that Jackson appointed Murray, and that the fact he was a licensed doctor was sufficient due diligence on the company's part - ie it was fair for them to assume the medic wouldn't give the singer the surgical drug propofol in a home setting.
Team Jackson argue that the jury in the original trial were given misleading information by the judge, and that he incorrectly dismissed some of the claims against the live music firm before the court case began. Those arguments were rejected by one appeals judge a year ago, but were being presented anew yesterday in a Californian court of appeal.
Though the appeal judges hearing the latest claim didn't seem especially convinced by the Jackson team's arguments. In a somewhat candid exchange, one of the appeal judges reportedly asked one of the Jacksons' legal reps "what is the fault of AEG in this? I'm just lost in all of this". The judge seemed entirely unconvinced that AEG could possibly have known about Murray's use of propofol.
Continuing that theme, another judge said that while AEG might suspect Murray was administering painkillers and sleep drugs "isn't it a stretch to go from that to propofol, which is beyond the pale?"
And AEG's explicit knowledge - or not - of Murray's use of propofol is the crux of this case, argued the live firm's legal man Marvin Putnam. "Everyone in the world, not just AEG, learned about propofol [for the first time] because of this tragic death", he said.
Having heard the various arguments yesterday, the appeals court will issue its decision in due course, though it's not looking especially good for the Jacksons. They have already said they'll take the matter to the Californian Supreme Court if their request for a retrial is denied this time.
Nettwerk acquires rock publisher Robot Of The Century
Originally an offshoot of the now Warner-owned Roadrunner label, Robot Of The Century Music has been an independent publisher since 2010. After Wessels was eased out of Roadrunner by Warner in 2012, he seemed to be focusing more on his publishing business, which was revamped to an extent in that it started working with artists beyond the rock genre that both it and Roadrunner were best known for.
Though it's the rock music in its catalogue that has seemingly interested Nettwerk, which is keen to diversify its publishing repertoire that has traditionally had a singer-songwriter bias. The Robot Of The Century deal is the second publishing acquisition of the Canadian music group in recent weeks, it having also recently taken a 50% stake in the Nashville-based Ten Ten Music Group.
Confirming the latest deal, Nettwerk COO Simon Mortimer-Lamb said: "Robot Of The Century writers have established themselves as some of the best in their genre and have achieved a global reach. We look forward to utilising out team throughout the world to ensure their continued growth and success".
Meanwhile Robot Of The Century President Doug Keogh said in a statement: "As Nettwerk further establishes its global strategy and embraces growth in their roster and repertoire, these artists will enjoy a new team with the same core values that helped launch their careers".
DJ Semtex name Sony Music UK's Director Of Artist Development
The DJ, real name John Fairbanks, previously worked for Sony in the late 90s, when he founded the company's first street team, before moving into a promotions job at Universal/Mercury and working his way up to Senior A&R Executive at Mercury in 2005.
CEO of Sony Music UK (and former Mercury Records chief) Jason Iley said: "Semtex and I have formed an incredibly successful working relationship over the years. He is a multi-talented music professional whose expertise and dedication has made him a brilliant A&R, marketing and promotions executive. Semtex will take up this new role as part of our drive to sign the hottest new talent as well as innovating in the marketing and promotion across all of our artists. He is a key addition to the team and I am delighted to welcome him back to the fold at Sony Music".
New comms and strategy role created at Warner UK
Mel Fox, who takes the new role, moves over from her corporate communications post in Warner Music International, and will now report into Warner UK CEO Max Lousada and will "work closely with the UK's senior leadership team, harnessing the expertise, insight and innovation that exists within the organisation to build upon its successful growth strategy". So there you go.
Confirming this Lousada said: "Continuing our growth trajectory in today's landscape requires our strategy to constantly evolve, all the while ensuring our stakeholders are aligned behind the ambition, capabilities and culture that differentiate us in a crowded and complex marketplace. Mel has played a key role in articulating and amplifying our unique approach and I am delighted that her skills will now be equally focused on helping to define the next phase of our transformation and keep up the momentum".
Rdio and Tidal expand into new markets
Though technically CMU is already available in every country in the world, which is nearly as many as Deezer, so I'm not feeling guilty about spending yesterday mainly updating the text on the 404 pages of our various websites. It was an important job that someone had to do, and only I was gallant enough to accept the task in hand.
Anyway, what was I talking about? Oh yes, some streaming services launched in some new countries. As they are wont to do these days.
Rdio went live in Anguilla, Antigua & Barbuda, Aruba, Barbados, Bermuda, the British Virgin Islands, the Cayman Islands, Dominica, Fiji, Grenada, Guyana, Haiti, Jamaica, Nauru, Papua New Guinea, Samoa, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines, Suriname, Tonga, Trinidad & Tobago, Turks & Caicos and Vanuatu. The streaming platform is now available in 85 countries in total.
The firm also announced an alliance with mobile network Digicel in these and some other territories. "Digicel and Rdio will collaborate closely to infuse the streaming service with local influence", says the press release. And who wouldn't be excited about the prospect of a phone company and a streaming firm collaborating in close proximity and then sharing their collective infusions? Not not me for starters.
As for Tidal, the high quality audio spin-off of Nordic streaming service Wimp, rebranded for the UK and US markets so to sound less, well, wimpish, it has expanded into Ireland, Finland, the Netherlands, Belgium and Luxembourg, like a tidal soundwave of high quality musical goodness crashing into the beaches of European appreciation.
And that marketing waffle is all mine, because Tidal CEO Andy Chen gave a tediously sensible statement confirming the latest expansion, remarking: "All these markets, as the rest of the world, are seeing a strong increase in music streaming subscription, as well as a high interest for high quality audio. We have already seen substantial interest from these markets signing up to our waiting list - with Netherlands as the front runner - and we are very excited to open up to five new markets today".
Indian streaming service appoints former Google exec as COO
Mahesh Narayanan says of his new gig: "I've had the opportunity to help many leading global technology media companies achieve success, and I genuinely believe that Saavn is primed for the same calibre of success too".
He will be charged with helping the streaming firm grow its user-base and maintain its edge in the Indian market in the face of plenty of new competition, from home-grown services and new international entrants into the market, including Rdio and Guvera.
According to TechCrunch, Saavn says it currently has eleven million monthly active users, with 70% of usage coming from within India. The firm doesn't reveal what the split is between freemium and premium subscribers, though the latter part of the user-base has increased "six fold" in the last year.
90% of streaming via Saavn is to mobile devices, which is perhaps unsurprising for a service focused on the Indian market, though it's still a very high percentage, and presumably Narayanan's stint running Google's mobile advertising operations in the region was in part behind the streaming music company's decision to recruit him.
MusicTank to put focus on big data and A&R
The session will consider "how deeper analysis and application of the recording business's myriad data points might help better anticipate consumers' tastes and better inform A&R decision-making processes when signing new talent".
Already confirmed to take part are Universal Music UK's Head Of Research Jack Fyer, Samsung Electronics' Kim DeRuiter, veteran A&R man Korda Marshall and Jeremy Silver, key advisor to various digital businesses, including recently acquired music data outfit Musicmetric.
Confirming the focus of his organisation's first Think Tank of the year, MusicTank Chair Keith Harris told reporters: "A couple of years ago I heard someone say 'data is the new oil'. I didn't fully appreciate the significance of that statement. What a difference a few years makes... We'll look at the challenges and opportunities and ask what the future holds for this increasingly data-centric industry".
The debate takes place at University of Westminster on 10 Mar. Info here.
Jay-Z not buying a radio station and some things that did happen
Other notable announcements and developments today...
• Jay-Z is not buying Hot 97, according to a spokesperson for the company that owns the US radio station, Emmis Communications. "That story is false", a rep told Hip Hop Wired. So that's you lot, told I think.
• Former CMU contributor and current Mi-Soul Radio DJ Edward Adoo kicks off a new three-month residency on BBC Radio Bristol this weekend presenting a late night programme to wrap up the weekend (Monday 1am) showcasing his dance, soul and hip hop centric music collection. Each edition will be followed by Thadeous Matthews with a focus on electronic music from Bristol. More here.
• Pond have a new album out on Monday, here's a track from it, 'Man It Feels Like Space Again'.
• Alex Winston has put a new track, 'We Got Nothing', up on SoundCloud. It's the b-side to her latest single, 'Careless'. She's got a new album coming out through Lyor Cohen's 300 Entertainment in the spring.
• New Burial track? Oh yes.
• New Aphex Twin track? Oh yes.
• Misty Miller will release an EP called 'Sweet Nothing' on 2 Mar. Right now you can hear a track from it, 'Petrified', here. She also plays The Windmill in Brixton on Monday, before heading out on a wider UK tour in February.
• The Barbican has announced a show taking place on 9 Apr under the title, 'Hello Terry Riley'. It will see electronic music makers James Holden, Koreless and Luke Abbott performing music inspired by the minimalist composer.
• Three BRITs-related shows were announced this week. Take That will play the Shepherds Bush Empire on 23 Feb, at a show in aid of War Child, while Royal Blood will perform at Koko on 17 Feb and George Ezra is doing the Electric Brixton the previous night. Tickets for the latter two will go on sale here on 28 Jan.
• LL Cool J will host the Grammys this year for the fourth year running, CBS announced this week. The ceremony takes place on 8 Feb.
CMU Beef Of The Week #239: James Blunt v Chris Bryant
Last week, newly appointed shadow culture minister Bryant gave an interview to The Guardian, outlining what he'd do if Labour got back into power at the next election. High up his list of priorities, he said, was ensuring that those working in the arts came from a diverse range of backgrounds. And that included addressing the worry that there's a growing imbalance at the top of the creative industries between those who come from wealthy backgrounds and those who do not.
"The truth is that people who subsidise the arts most are artists themselves", said Bryant. "That of course makes it much more difficult if you come from a background where you can't afford to do that".
He raised questions about the way in which the BBC recruits new talent, and said: "I am delighted that Eddie Redmayne won [a Golden Globe for best actor], but we can't just have a culture dominated by Eddie Redmayne and James Blunt and their ilk".
It was a casual reference to Blunt, which gave no comment on him as a person, his talent, or anything much really. It merely used him as an example of a specific (if generalised) type of person to illustrate a point. Though perhaps the word "ilk" made it seem more pointed. It certainly riled the musician.
"You classist gimp", wrote Blunt in response. "I happened to go to a boarding school. No one helped me at boarding school to get into the music business. I bought my first guitar with money I saved from holiday jobs (sandwich packing!). I was taught the only four chords I know by a friend. No one at school had ANY knowledge or contacts in the music business, and I was expected to become a soldier or a lawyer or perhaps a stockbroker. So alien was it, that people laughed at the idea of me going into the music business, and certainly no one was of any use".
Blunt's response infers quite a lot from Bryant's aside, the assumption being that Bryant believes the singer got all kinds of unfair advantages as a result of his background. When, in fact, "the only head-start my school gave me in the music business, where the VAST majority of people are NOT from boarding school, is to tell me that I should aim high".
He added that, if anything, his overt poshness hindered his entry to the music business - ultimately meaning that he had to go to the US to sign a record deal, where his accent was less of an issue. Though it should probably be noted that he did manage to secure management and sign a major publishing deal in the UK prior to all that just fine.
Still, this is a reasonable point for Blunt to make. I similarly remember a band of Oxford graduates I used to know being told that they should give up, because they'd never get anywhere with those accents. But the issue raised by Bryant isn't really about the difficulty of getting through the door, it was more the route to that door in the first place.
For Blunt to suggest that his background was of no use whatsoever is so short sighted as to verge on parody. But, says Blunt, what Bryant is doing is "telling working class people that posh people like me don't deserve it". Which is not how I read the Bryant interview, but maybe that's because my state school education didn't teach me to read properly.
The issue isn't whether or not it was hard for James Blunt to become a successful musician. It's hard for anyone to become a successful musician. There are many, many barriers to it happening. For everyone, rich or poor. However, some of the more basic barriers to entry are more prevalent for the latter group than if you are 'James Blunt', in a generic rather than specific sense.
Right at the very start, if you show an interest in music, instruments cost money and lessons cost money. You might be able to circumvent those if you're at a school with good resources, but schools with good resources quite often cost money. Sure, a kid can get a holiday job packing sandwiches, but if packing sandwiches was the only thing standing in the way of talented young people and the wherewithal to make it as a musician then we'd have more sandwiches than we'd know what to do with.
Moving things along, Bryant then wrote a response to Blunt's response, opening with these genuine words: "Stop being so blooming precious. I'm not knocking your success. I even contributed to it by buying one of your albums. I'm not knocking Eddie Redmayne, either. He was the best Richard II I have ever seen".
He might as well just have written "some of my best friends are posh people". Luckily, after that false start he moved on to reiterating his original point, that a lack of funding in the arts and other support for those keen to pursue their talent means that some sort of financial buffer is required.
Those at starting out in the creative industries, he pointed out, are the ones who are expected to work for nothing, whether that be unpaid internships or as musicians asked to play 'for the exposure'. Blunt's right that determination and learning to "aim high" will help, but by saying that he seems to suggest that anyone who doesn't just suck up a few years of having no income isn't trying hard enough.
"I'm delighted you've done well for yourself", Bryant wrote. "But it is really tough forging a career in the arts if you can't afford the enormous fees for drama school, if you don't know anybody who can give you a leg up, if your parents can't subsidise you for a few years whilst you make your name and if you can't afford to take on an unpaid internship".
The point isn't that James Blunt doesn't deserve what he has, it's that the hurdles early on are set closer together for people with less money available to them. Of course, if someone makes it through childhood having had the support they need to develop a talent, there are still plenty of hurdles beyond that. Real life gets in the way for most people. It takes a certain amount of stubborn dedication to pursue something past the point of it being financially unviable.
Many do, and some become successful because of it. But if you come from a position of wealth to begin with, then you can't claim not to have had any advantage at all. To an extent, that's life. But if funding to the arts is cut and government policies squeeze the finances of poorer families, then you risk that advantage becoming more pronounced.
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