CMU Daily 08.03.16: Rhapsody gets itself a mechanicals lawsuit, Franklin documentary injunction made permanent, SoundCloud gets a CRO

Rhapsody targeted with mechanicals lawsuit as Spotify reportedly tries to negotiate a settlement
Yeah, what about Rhapsody, everybody? They've been streaming the tunes for ages. Long before your Spotifys and your Slacker Radios and your Google Plays, Rhapsody was there, diligently providing the streams to any music fans who'd consume. Both of them. So why have they been left out of the mechanical rights litigation party? They were first to market, so really should have gotten their writ before everyone else. I mean, even fictional streaming service Tidal has been sued. What about Rhapsody?

Well, worry not, people, because David Lowery's got that covered. Rhapsody is the latest streaming service Stateside to be sued over allegedly unpaid mechanical royalties due on the songs it has been happily streaming all these years.

As with Lowery's lawsuit against Spotify, and other litigation targeting Slacker Radio, Google Play and Tidal, Rhapsody is accused of not complying with the formalities of the compulsory licence that covers mechanicals in the US, and therefore of infringing the copyrights of a multitude of songwriters.

Digital Music News published a copy of the latest mechanical rights lawsuit last night. As with the previous legal action launched by musician and vocal artist rights campaigner Lowery, law firm Michelman & Robinson are leading on the Rhapsody litigation. Though, DMN notes, this new case has an added element.

Since these lawsuits started landing, the company used by many streaming services to manage (or, possibly, mismanage) mechanical licensing, the Harry Fox Agency, has seemingly started sending back-dated notices of intent to copyright owners, ie the key bit of paperwork required by the aforementioned compulsory licence.

But that bit of catch up work by HFA may well be now used by lawyers representing songwriters like Lowery as evidence that the streaming services knew all along that they were infringing a plethora of copyrights. And plaintiffs in these cases need to show that infringement was "wilful" if they are going to push for the highest possible damages of $150,000 per song used without licence.

Meanwhile, as the pile of mechanical rights lawsuits starts to pile-up, behind the scenes various bigger music publishers are apparently trying to negotiate an out-of-court settlement with Spotify. It would attempt to halt the onslaught of new litigation in return for a more formal version of the commitment the streaming service made last year to set up a big fat database that, once and for all, would identify what songs appear in what recordings (by linking the ISRC codes that identify recordings to the ISWC codes that identify songs).

It remains to be seen how any such deal is structured, and whether it placates the wider songwriter community. DMN says America's National Music Publishers Association - which Spotify already said was assisting in its grand database plan - is involved in the deal making.

A settlement will be attractive to many stakeholders. All the mainly loss-making streaming services will want to limit their liabilities in this domain, and Spotify really needs to clear up this mess before any IPO.

Meanwhile, despite all the noise, many in the music publishing sector are also keen to put these disputes behind them – without any high profile and potentially embarrassing court cases – so to let the premium streaming services get on with growing their businesses, while the collecting societies and trade bodies take on the safe harbour-exploiting free platforms like YouTube.

In terms of finding a way to ensure mechanical royalties are paid more efficiently, well, given publishers and collecting societies have managed just that in every country other than the US, you have to think there is a solution out there somewhere. Though whether the major publishers and NMPA can talk streaming critics within the songwriter community to put the brakes on their class action lawsuits remains to be seen. That may be more tricky.

Injunction banning the screening of Aretha Franklin documentary made permanent
The US courts have made permanent an injunction that bans the screening of a documentary featuring a 1972 performance by Aretha Franklin without the singer's permission.

As previously reported, the film in question is called 'Amazing Grace' and documents Franklin recording the live gospel album of the same name. Franklin's 1970s performance was filmed by the late director Sydney Pollack, but a technical error that occurred during the making of the documentary meant that the sound was never synchronised with the image, resulting in a silent movie that sat in a vault unseen until being completed only recently.

Producer Alan Elliott has since been trying to release the completed version of the documentary, but has met with resistance from Franklin herself, who says that her original agreement with Pollack means the footage can only be used with her express permission. The singer secured a temporary injunction to stop Elliott from screening the documentary last year, after the producer arranged to show it at some North American film festivals.

That injunction has now been made permanent, with judge John L Kane ruling yesterday that: "Absent further order of the court or specific written authorisation from Ms Aretha Franklin, defendant Alan Elliott, his agents, employees and all working in concert with the defendant, shall not publicly show, screen, project, display or otherwise release the film 'Amazing Grace', or the 1972 concert footage".

But, says a legal rep for Elliott to The Hollywood Reporter, this week's new ruling is just a formality, and talks between the producer and Franklin's people are ongoing. Elliot still hopes that a deal will be reached, eventually, allowing the film to be shown. And, indeed, a joint motion filed with the court by both sides in the legal dispute said they were still "optimistic that the stars will eventually align" and allow the film to be screened, though "there is, at present, no assurance that a final resolution will be reached in the near term".

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Appeals court says Pras could refile his libel action against New York Post over alleged charity gig no-show
One time Fugee Pras could re-file a previously reported libel lawsuit against the New York Post, which was initially thrown out by the court on the basis the offending piece was more opinion than fact, and the rapper had failed to show that the tabloid acted with malice.

Pras went legal over an article in the Post's Page Six gossip section regarding his involvement in a charity and benefit gig, which included the allegation the rapper was a "no show" at "his own 9/11 benefit concert".

The Post originally managed to have the lawsuit dismissed, partly on the basis that the article mainly constituted opinion rather than alleged fact. And this argument was in part based on the fact the piece appeared in the gossip rather than the news section of the paper.

But on appeal, judges have rejected that argument, with one judge noting that "[the fact the] article appeared on Page Six - a well-known gossip column - does not require us to conclude that reasonable readers would interpret the reporting of facts on the page to be statements of opinion".

But, says the appeals court, the original judge was right to say that, because - in his opinion - Pras had not demonstrated that the Post acted with "actual malice" by running the gossip piece, he was empowered to dismiss the action. Which he did.

Though, say the appeal judges, because that was, with hindsight, the only reason the libel action was thrown out, Pras should have been given the option to file new evidence in a bid to meet the "actual malice" requirement. Which is something the rapper could now do if he wishes to continue pursuing this action.

New Chief Revenue Officer at SoundCloud
SoundCloud has appointed a new Chief Revenue Officer, so that's good, the digital firm obviously expects to have enough revenue to be worth having someone chiefly officering it all, as the company shifts its business model from one that charges content creators for server space and bandwidth to one that charges advertisers and listeners instead.

US-based Alison Moore joins SoundCloud from the TV industry, where she most recently headed up NBC Universal's live streaming service TV Everywhere. She will report into SoundCloud CEO Alexander Ljung in her new job, and he says that his new hire is "an innovative and strategic leader with a proven track record of building consumer business strategies that drive new revenue growth across multiple platforms".

Confirming he is "THRILLED" that Moore is now on his team, he adds: "Most importantly, she has an understanding of both the complexities of SoundCloud's business, and the content and entertainment industries, having spent the majority of her career building businesses, products and experiences that deepen consumer engagement with extraordinary content".

I think we all agree that this is something of a make or break year for SoundCloud as it attempts to generate more money, and keep labels and music publishers happy, with its new advertising and subscription platforms. Without the deep pockets of some of its rivals in the streaming space, SoundCloud hopes it can exploit its sizable catalogue of content, significant user-base, and undeniable role in music discovery to find a commercially viable place in the wider market. Fingers crossed.

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Cür Music committed $8 million in advances to the majors
With the all the major record companies now offering to share unallocated streaming service advances with their artists - and all but Universal pledging to share the profits if and when they sell any equity they have in the streaming companies that was obtained as part of a licensing deal - artists and their reps are more interested than ever into what advances and equity those major labels are actually receiving.

Though, of course, in the main, the specifics of the majors' deals with any new advance-paying, equity-distributing streaming start-ups remain secret. Which is a problem. And it's why the boss of the UK's Music Managers Forum, Annabella Coldrick - while welcoming the news back in January that mid-price US streaming service Cür Music had now been licensed by the majors - noted that "Yet again the majors are doing secret deals, taking equity stakes and making it impossible for our artists to know if they are getting a fair share of revenues. We are calling on the majors to take seriously the issue of transparency in streaming and to sign a code of conduct to commit to fundamental principles".

Some filings made by Cür Music itself have offered some guidance on what these latest deals may have looked like. And a Wall Street Journal profile piece on the latest streaming music start-up on the block also puts some figures on the table. It says of Cür Music's CEO Tom Brophy: "After starting the company in 2014, he has obtained licences from all three major record companies, giving them a collective $8 million in advance money as part of the deal and issuing them a 5% stake in the company".

So that's nice isn't it? And while those are only top line figures, they confirm that advances and equity remain a sufficiently significant part of streaming deals that artists and their managers should continue to fight not only for a cut of that action, but some disclosure on what exactly the big rights owners are getting in return for licensing newbie digital platforms.

Mixcloud to put the spotlight on radio at the Convergence Sessions
Mixcloud will put the spotlight on radio as part of the daytime sessions programme at the incoming Convergence festival in London. Mixcloud Curates returns to Convergence once again this year, with online radio stations Soho Radio, Radar Radio and Mi-Soul Radio all set to participate in the proceedings.

Speaking to ThisWeek London, the firm's Head Of Community Xanthe Fuller says that she chose to put the spotlight on radio this year because "an online radio movement is happening all around the world, and on Mixcloud we're seeing an increasing amount of stations being launched in various countries, allowing the most diverse curation locally and globally. People still clearly recognise the value of the medium, as was evident with the launch of Beats 1 by Apple, and as technology improves and becomes more accessible, so more people are able to get involved and share their content with a global audience".

As for why the old school radio show remains popular in the on-demand streaming music age, Fuller adds: "While it is exciting to have so much music at our fingertips these days, it can also be overwhelming. The more that is available, the more we see the need for a curator, a trusted pair of hands who can do the digging for us. We love to be able to choose what we listen to, but sometimes we can reach a dead end with our own tastes, especially if our working lives mean that we don't have the time to dedicate to hunting down new genres and artists. The radio presenter can be that person who inspires us to begin a new journey of discovery".

You can read the full interview with Fuller and find out more about the Mixcloud Curates event in our sister site ThisWeek London's TW:Guide To Convergence 2016 – check the interview here and the full guide here. And don't forget, CMU Insights is also putting the spotlight on media as part of the Convergence Sessions programme this year. Click here to find out more about the CMU session 'Making Money From Media? You Won't Believe What Happens Next!'

Kelly Clarkson says label forced her to work with "not good guy" Dr Luke
Kelly Clarkson has clarified, a little, what she meant when she responded to Kesha's recent court battle with producer and label boss Dr Luke by tweeting: "Trying to not say anything since I can't say anything nice about a person ... so this is me not talking about Dr Luke".

As much previously reported, Kesha Sebert accuses Lukasz Gottwald of plying her with drugs and alcohol and raping her as a teenager. Gottwald claims that the allegations and resulting lawsuit are an attempt by Sebert to get out of her contract with his Kemosabe label, a Sony imprint.

The long-running dispute became front-page news recently when a New York court refused to grant Sebert an injunction allowing her to release records with another label while the legal battle with Gottwald slowly goes through the motions.

In a new interview with Australian radio station KIIS FM, Clarkson - who worked with Gottwald on various records, including some of her big hits – makes no comment on Sebert's allegations, but makes it clear that there is little love lost between her and the producer.

"I can remark on his character" she says, adding "and unfortunately when you have that poor a character, and so many artists don't like you, and don't like working with you, that's not normal". She then insisted that "I get along with everybody I work with, I love everyone I work with" but "he's just not a good guy for me, to me".

The singer then added that, while Gottwald had had a hand in making hit records for her, she had continued to work with the producer only under pressure from her record company. "I got blackmailed by my label", she went on, "it was a really hard time for me. They were like, 'We will not put your album out if you don't do this'".

AC/DC postpone US tour dates after Brian Johnson warned of "total hearing loss"
AC/DC have announced they are postponing the rest of their current US tour, including a show due to take place in Atlanta tonight, because frontman Brian Johnson has been told by doctors that if he doesn't stop gigging with immediate effect he risks total hearing loss.

A statement on the band's website read: "AC/DC are forced to reschedule the ten upcoming dates on the US leg of their 'Rock Or Bust' World Tour. AC/DC's lead singer, Brian Johnson, has been advised by doctors to stop touring immediately or risk total hearing loss. Tomorrow's show in Atlanta through Madison Square Garden in New York, NY in early April will be made up later in the year, likely with a guest vocalist".

Some other members of the band have not been involved in recent touring activity, of course. Founding member and guitarist Malcolm Young retired from AC/DC in 2014, also because of health issues. Meanwhile drummer Phil Rudd has been excluded from recent tours because of his various run-ins with the law in New Zealand.

Ward Thomas, Jeffrey Azoff, Music Week Awards, more

Other notable announcements and developments today...

• Sony Music UK has signed its first "homegrown country music artist" in the form of Ward Thomas, via a JV with WTW Music, which released the duo's debut album in 2014. Sony COO Nicola Tuer is "THRILLED" about the arrangement.

• Artist managers are awaiting with interest a new app that has been developed by Sony Music in Sweden that promises to give artists signed to the major access to streaming and royalty data on the fly. It's been overseen by Sony's Michelle Kadir, an ex-Spotify exec, who has spoken to Sweden's Di Weekend about the venture, noting that "transparency has been the key word when we developed this". If and when rolled out across Sony, it may bring the major up to Kobalt-levels of transparency, but will there be full disclosure?

• Jeffrey Azoff is leaving CAA to set up his own management company, Full Stop Management, the talent agency has confirmed to its staff, according to Billboard. It's thought that a key initial client of Full Stop will be that Harry Styles guy you may have heard about.

• Robert Plant, Femi Kuti, Laura Marling and I Am Kloot will all play at this year's Meltdown festival, as curated by that Guy Garvey chap. The festival takes place at London's Southbank Centre from 10-19 Jun with tickets on sale from 18 Mar. More here.

• Music Week has announced the shortlists for its annual industry awards, with Jon Ollier, Banquet Records, Syco, Sam Eldridge and a Cilla Black best of album amongst the nominees I just randomly selected. Well done all of you for being randomly selected by me. Just think, you're already winners, and the actual awards don't take place until 28 Apr.

Kanye West says "no more CDs for me"
One man tweet machine and occasional rapper Kanye West has revealed himself to be the A-nti-dele by officially declaring the compact disc to be dead, and insisting the future will be a single stream of musical goodness.

"I was thinking about not making CDs ever again", mused West on the tweets yesterday, clarifying that in the future, as well as the present, his new material would be "only streaming". He then added that the cover-free packaging of the physical release of his 2013 album 'Yeezus' was, in fact, "an open casket to CDs".

And just in case there was any remaining doubt about his intentions, West added "uuuuuuum, so there it is... no more CDs from me". Though note that that final word on the issue still leaves the door open for West to follow Eminem's lead and embrace the actual future: aka the cassette. Yay inconvenient formats and dull audio!