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Music publishers set to hate at least one DoJ reform to US collective licensing
So yes, as previously reported, the DoJ is busy reviewing the so called 'consent decrees' which regulate ASCAP and BMI, the two big performing rights organisations for the US music publishing sector, which provide licences on behalf of American publishers and songwriters for anyone needing permission to 'perform' (broadcast, stream, play in public) a song.
It was the publishers who wanted the review, not least because the majors want to stop the PROs from licensing their catalogues to streaming services. Mainly on the basis that, without all the rules and regs of collective licensing, the publishers could threaten to pull their repertories from a streaming service, and get a better deal on royalties in return.
But the US courts said that the publishers either had to licence all their performing rights collectively, or none, and that so called 'partial withdrawal' (eg just pulling digital from the PROs) is not an option under the consent decrees. The publishers want the decrees rewritten so partial withdrawal is possible, and word has it the DoJ is likely to recommend such a change to the courts that ultimately decide the rules.
Here's the thing though, sources say that another new line the DoJ is proposing for the consent decrees could severely reduce the impact of partial withdrawal, and shake up collective licensing in other ways that could send the music publishing sector's royalties down rather than up.
This second proposal relates to co-written - and therefore co-owned - songs, where multiple publishers and, often in the US, multiple PROs are involved. Under the current system, where you have a song with two writers, one a BMI member and one an ASCAP member, a licensee needs permission from both societies to use the work, with each society then collecting revenues on behalf of its member.
Of course, most licensees will have blanket licences from the societies, so don't really notice this is what they are doing. But crucially, if they had a BMI licence but no ASCAP deal, the licensee could only use songs that are represented by the former in their entirety, if an ASCAP member has even a small share in the copyright of any one tune, the radio station or concert promoter isn't licensed to make use of the work.
Now, technically under US copyright law any stakeholder in a copyright is actually empowered to licence the work in its entirety, providing they share any income with the other co-owners. But in practice, there are all sorts of scenarios where this doesn't happen, the collective licensing of performing rights being one of them.
But the DoJ is seemingly considering inserting a line into the consent decrees that explicitly says that this should become practice in the collective licensing domain, oblivious of any society rules, or agreements between songwriters and/or publishers, that currently force so called 'fractional licensing', where licensees need separate agreements with each stakeholder.
What that would mean is: even if Sony/ATV et al pulled their digital rights from BMI and ASCAP, any songs in their catalogues co-owned with a publisher who was still using the PROs for digital would still be available for digital services to stream under their BMI and ASCAP blanket licences. It would also mean that Sony/ATV could license its repertoire in its entirety, even though they won't own 100% of many of the songs in their catalogue.
Now, quite what would happen to co-owned works if and when partial withdrawal was allowed in the US has been discussed in legal circles ever since the majors first indicated their desire to shift digital over to direct licensing.
The DoJ's proposal would at least provide some clarity, though the move is not popular with the American publishing community, who feel it would greatly weaken their hand at the negotiating table. And could actually result in the Pandoras of the world - and, indeed, licensees outside the digital domain - getting a better deal, because they could play BMI off against ASCAP when it comes to the repertoire that the two societies co-represent.
Publishers also argue that the proposal is based on an incorrect assumption by the DoJ, ie that because in theory under US copyright law any one stakeholder in a copyright work can wholly licensee it, that must be common practice across the industry in all licensing scenarios. One anonymous publishing exec quoted by Billboard says: "The DoJ's [proposal] is factually inaccurate on what the industry's customary practices are, and the repercussions of their stance as it is now are not being fully considered".
Few have, as yet, gone on the record in dissing the DoJ on this proposal, though ASCAP CEO Beth Matthews confirmed in a statement, "ASCAP supports fractional share licensing coupled with transparency by all market players to effectuate digital withdrawals".
Quite what impact this proposed rule would have across the board - as in how many songs in the Sony/ATV repertoire could still be licensed via BMI and ASCAP as a result of co-ownership with an indie - is hard to assess, what with there being no central database of copyright ownership.
Though that lack of a copyright database would arguably put pressure on the streaming services to still do deals with all parties - ie BMI, ASCAP, Sony/ATV, Warner/Chappell, Universal, BMG and Kobalt - anyway, because they wouldn't necessarily know which songs were wholly controlled by a major or majors, and therefore were no-go works under their BMI and ASCAP licences.
Which means this DoJ proposal would be an incentive for the music publishers to continue being rubbish at sharing copyright ownership data, which would be a big down side. Though it would also likely make Pandora et al even more vocal on the need for some kind of global repertoire database, so perhaps actually it would speed things up in that regard.
Either way, there should be much debate to be had when the DoJ formally published its proposals for the all new consent decrees.
Pandora fails to cut BMI rates on back of owning a single FM radio station
As previously reported, Pandora has been arguing with the two big US music publishing performing rights organisations - BMI and ASCAP - over what royalties it should have to pay for streaming the songs they represent.
Despite the publishers being generally critical of the rate courts that rule on such matters when collective licensing is involved, saying judges often don't take commercial realities into account when deciding rates, back in May the courts basically ruled in favour of BMI, demanding Pandora pay the society a 2.5% rate, rather than the 1.75% figure the streaming music service was proposing.
But Pandora continues to pursue every legal angle it can to get royalty payments down. In court this week, one specific little trick Pandora has been trying on for a while now was considered and rejected. As you may remember, back in 2013 Pandora bought itself an FM radio station in South Dakota, arguing that doing so made it a traditional broadcaster which should be able to make use of a separate more beneficial digital licensing arrangement that BMI had agreed with the US radio industry.
However, in court this week the judge rejected that argument, noting, quite reasonably, that Pandora cannot be compared to traditional radio, even if it owns a traditional radio station on the side. The Pandora business model is as different from conventional radio, he concluded, than it is from fully on-demand streaming services like Spotify, which pay higher rates to the music publishers.
So shut your face Pandora, basically. Though there are further appeals and technicalities to come on all this, almost certainly.
No Happy Birthday decision after new "smoking gun" evidence submitted
As previously reported, a film company behind a documentary on the famous song claims that, in the US at least, 'Happy Birthday' should no longer have copyright protection, because the copyright in it originates from before a 1923 change in American copyright rules. Under the pre-1923 rules the song is already 'public domain', ie out of copyright.
The song's publisher Warner/Chappell, however, insists that while the song may have existed before 1923, it was never formally published. It links publication to a 1935 copyright registration, which falls well after the 1923 rule change, and thus means the song is still a protected work.
Both sides submitted their arguments a while back, and a judge was due this week to consider whether he should make a summary judgement one way or the other, or let the whole thing proceed to trial. Until this week, the plaintiffs' main argument was that Patty Smith Hill and Mildred Hill, the sisters who wrote some or all of the song, had "surrendered the copyright to the public" prior to the 1935 registration, rendering that registration redundant.
But then the plaintiffs arrived this week with a last minute bit of new evidence, a song book from 1922 that contained the song. That meant, the plaintiffs argued, that 'Happy Birthday' was definitely published before the all important 1923 rule change. Except, countered Warner/Chappell, not if the song had been published in 1922 without permission. A matter that would surely need a trial to be worked out.
Having taken submissions from both parties, a judge in the California federal court considered the 'they surrendered the copyright' argument on Wednesday, but held off reviewing the new evidence, giving the two parties another week to prepare refreshed arguments taking the 1922 songbook into account.
And so, no resolution as yet, and no new court hearing currently scheduled. The judge could as yet make a summary judgement on the final set of submissions from each party, or could let the whole matter proceed to court. If the latter, I vote Robin Thicke is brought in to play 'Happy Birthday' on the piano. You know, just to set the scene.
PRS For Music opens up Beyond Borders scheme for 2015
This scheme is aimed at encouraging collaboration between artists in England, Scotland, Wales, Northern Ireland and, as of last year, the Republic Of Ireland too, with arts funding bodies from most of those countries also contributing. The grants of up to £15,000 can cover new commissions, live and recording work, to be performed in at least three of the five participating countries.
Says the Foundation's Executive Director, Vanessa Reed: "I'm thrilled that we're now launching the latest round of Beyond Borders, a cross-border programme which has supported many brilliant music projects over the past five years. This is a unique opportunity for organisations and groups across the UK and Republic Of Ireland to seek funding that will enable them to work together on touring and co-commissioning, bringing new music to a broader audience".
The Voice could go to ITV in 2017
Well, speculators really, in that this is mainly a conclusion reached by combining three separate facts: first that the Beeb's current deal with 'Voice' owners Talpa Media only runs for one more series; second ITV bought Talpa Media earlier this year; and third shows like 'The Voice' are set to be much criticised by the current government review of the Corporation's operations.
Of course, we're all meant to be bigging up the BBC at the moment, otherwise Culture Minister Johnny Whittingdale and his best buds in the commercial media might kick the whole organisation down a big hole, and build a tanning salon on top of it to obscure the mess they leave behind.
Though, while the BBC is, of course, brilliant and magnificent and wonderful, and must be protected from such vandalism, that doesn't mean the twonks that run the place aren't more than capable of pissing licence fee payer money up the wall on vanity projects and other unnecessary ventures. Like the utterly pointless BBC Music Awards and that stupid all-star 'God Only Knows' cover.
However, despite Johnny wanting the BBC to mainly focus on making programmes about particle physics and wool, that doesn't mean the Corporation shouldn't be in the business of entertaining the masses, which it routinely does with its own programming franchises like 'Doctor Who', 'EastEnders' and 'Strictly Come Dancing'.
But shows like 'The Voice' can be controversial for the Beeb, because it was bought in at great expense from a third party to compete with an existing very similar format broadcast by rival ITV, ie 'X-Factor'. And even some friends of the BBC question whether that was a good use of licence fee funds. Even if you argue that 'The Voice' is clearly not a commercial show, in that no UK winner from it has ever enjoyed anything nearing a commercially successful career post their victory on the programme.
All of which is fuelling speculation, principally in The Sun, that the BBC will have to dump its music talent show after its 2016 outing, but that ITV will then take the franchise on, it already owning it via the Talpa acquisition, despite not having the rights to use it in the UK just yet. So that's good news isn't it? That everyone thinks there'll still be space on the telly airwaves for two popstar talent shows come 2017.
Airport officials deny Morrissey's accusation of sexual assault
In a post on his True To You fansite, Morrissey claimed: "Before I could gather my belongings from the usual array of trays [after going through security] I was approached by an 'airport security officer' who stopped me, crouched before me and groped my penis and testicles. He quickly moved away as an older 'airport security officer' approached".
"Luckily I was accompanied by two members of British Airways Special Services, who were horrified at the sexual attack and suggested that I lodge a complaint", he added.
In response to the singer's accusation, a spokesperson for the TSA said: "TSA takes all allegations of misconduct seriously and strives to treat every passenger with dignity and respect. Upon review of closed circuit TV footage, TSA determined that the supervised officer followed standard operating procedures in the screening of this individual".
Tyler, The Creator raps Dr Seuss
Oh what, you didn't know there was a new Dr Seuss book? Well, it's been in the news quite a bit. Dr Seuss has been dead for a while, of course, but this unpublished book has been discovered and is now being published. There's been uproar though, because it reveals that The Lorax was actually pretty racist.
Hang on, I might be getting my long lost books mixed up. Whatever, Jimmy Kimmel decided that the new old book should be given a modern spin, and so got Tyler to come and rap some lines from it.
The whole thing's quite weird, and not particularly funny, but watch here if you like.
Prince releases exclusive Spotify single, after removing catalogue from streaming services
The track, titled 'Stare', appeared yesterday, with Spotify tweeting that it was "just for Spotify fans". But does that mean all the rest of his music is available there too? Nope. Just that one track and a few stray odds and ends from compilations.
Spotify seem as confused as everyone else by this, telling fans who asked if the rest of his music would be returning to "listen hard" to this new single "and hope he brings the rest back soon".
Who knows if it will work, but you can listen especially hard to 'Stare' here.
Meek Mill releases Drake diss track, Mariah directing Christmas film, 1000 Foo Fighters fans perform Learn To Fly, and more
Other notable announcements and developments today...
• Meek Mill has now released his diss track in the ongoing beef between him and Drake. In it he claims that someone once urinated on Drake in a cinema. And for that reason I'm going to say that this beef is not over.
• Mariah Carey is set to direct and star in a TV movie for the Hallmark Channel called 'Mariah Carey's Christmas Project'.
• In an attempt to convince Foo Fighters to play a show in Italy, 1000 musicians have come together to play the band's 'Learn To Fly' in a field. Here's what that sounds like.
• Are !!! going to release a new album in October. As if. Oh wait, they are, and it's called 'As If'. Sorry for the mix up there. It's out on 2 Oct. This is a track from it, 'Freedom 15'.
• Slaves have posted the video for their new single, 'Sockets'.
• Tom Jones and comedian Rob Brydon will join forces for a show at the Wembley Arena on 8 Oct, as part of this year's BBC Children In Need campaign. "Great honour", says Tom. "Delighted", adds Rob.
• Song, By Toad's Pale Imitation festival will be back in Edinburgh throughout August, showing off some of the finest local musical talent. It'll all take place at Henry's Cellar Bar from 2-29 Aug. Tickets here, and a playlist of all the acts playing here.
CMU Beef Of The Week #264: One Direction v Zayn Malik
What do you mean this sounds like something I just made up in order to fill a weekly column? How dare you! Now I will have to fill the rest of this article with evidence, and then you'll all look rather silly.
It was all smiles in March when Malik left the group, of course. "I am leaving because I want to be a normal 22 year old who is able to relax and have some private time out of the spotlight", he said back then. "I know I have four friends for life in Louis, Liam, Harry and Niall. I know they will continue to be the best band in the world".
Just warms your heart, doesn't it? Even now. Even now that we know it couldn't last. Even now those "four friends for life" have become Zayn's sworn enemies for eternity. Because that is what has happened, don't forget.
So, having tired of having a 100% normal life, this week Malik announced that he had new management and a new record label, breaking free from the chains of Simon Cowell's Syco and one time 'X-Factor' act management company Modest!.
Oh sure, he's still signed to a Sony label and Cowell was apparently involved in getting him that record deal. But whatever, this is all pretty close to a clean break. And clean breaks mean cutting loose the ties that have been holding you back. So Zayn took the opportunity to announce that everything he's done prior to this point - ie the entire 1D recorded repertoire, all their live performances and the big duvet cover deal - are an embarrassment that he hopes to forget.
Well, those weren't his exact words. What he actually said was: "I guess I never explained why I left [One Direction]. It was for this moment to be given the opportunity to show you who I really am!"
But that's not what he said in March, is it? In March it was all, "Soz, it's all got a bit too much in this hot spotlight". Now - as the Mystic Meg of pop, Louis Walsh, previously predicted - it turns out what Malik really felt was that he should be the only one taking all the heat of said spotlight. And just to drive the point home about everything that went before being rubbish, he added the hashtag "#realmusic" to his deal tweet, basically accusing his former band of being somehow fake, like he's now Jake Bugg or something.
But a beef requires two sides, so let's go and take a look at what's been going on with the four men who are currently still collectively known as One Direction (until the end of the year).
"We're really sad to see Zayn go, but we totally respect his decision and send him all our love for the future", they said when Malik left the group. "The past five years have been beyond amazing, we've gone through so much together, so we will always be friends".
And so, as they saw their former comrade go forth and pave the way for the imminent solo career future that awaits them all (well, at least two of them), what messages of support did they send? None. None at all. Not even one. They just acted like they hadn't even noticed. They tweeted about other things, or, in Liam's case, stayed so committed to ignoring Zayn that he tweeted nothing at all between Monday and this morning.
Oh, but he tweeted something today though, did he? Yes he did. Thank you for spotting that and giving me a segue into the next stage of this beef. Because this is where it gets really crafty, you see. As if to really drive the point home that they don't even remember who this 'Zayn Malik' character is, One Direction released their first single without his silly voice bringing down the vocals as a big surprise for fans this very morning. Because that's how exciting New Music Fridays can be.
Even better, the title of the track is quite clearly a message to the man they're pretending not to remember. 'Drag Me Down' is the title. Because, like, they're saying that Zayn was dragging them down, and now with this song they're showing off how they can reach their true potential without him. I mean, lyrically that's not even close to what it's saying, but that's what makes it so clever. So subtle.
And so, I think that, without question, this all proves the bitter rift between Zayn Malik and the remaining members of One Direction. Oh sure, you might point out that Liam's lack of tweeting this week means that a tweet from last week marking the fifth anniversary of the group is still near the top. And yes, sure, he thanks Zayn along with everyone else in that tweet. But let me ask you this: who is the only one whose name he doesn't give a capital letter?
Now, who wants me to explain how the 50/50 split between 1D members over whether to link to Spotify or iTunes while announcing that new single this morning shows who will be the next two group members to quit?
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