CMU Daily 09.06.23: Fix The Tix sets out manifesto, DistroKid sued over malicious takedowns

Fix The Tix publishes full manifesto with the focus very much on secondary ticketing
The Fix The Tix campaign in the US has set out in more detail its manifesto, calling on Congress to better regulate the American ticketing market. The focus is very much on secondary ticketing, proposing various legal reforms to improve the regulation of ticket resale by unofficial sellers.

Issues surrounding the ticketing business have been in the spotlight again of late in the US following the meltdown that occurred last year when tickets for Taylor Swift's current tour went on sale via Ticketmaster's Verified Fan system.

As a result, there are various campaigns ongoing and a number of legislative proposals have been introduced into Congress. Different campaigns and different proposals tend to focus on different issues. There are issues in primary ticketing. There are issues in secondary ticketing. And some would argue that the real issue is the market dominance of Ticketmaster and its owner Live Nation. So, which issues should be addressed first?

Live Nation has its own campaign ongoing with sets out its five key priorities. Most of them relate to secondary ticketing. Ticketmaster is actually still involved in ticket resale in the US - unlike in Europe - but if new regulation is implemented, the live giant would clearly prefer the focus to be on the secondary market.

After Live Nation launched its campaign and listed the various booking agencies, management companies and industry organisations that were backing it, another coalition of music industry businesses and groups then announced the launch of Fix The Tix.

Although some companies and organisations are backing both Live Nation's campaign and Fix The Tix, it felt like the latter would mainly involve those who viewed the former as self-serving on the part of Live Nation and Ticketmaster. And maybe Fix The Tix would call for some reforms to the ticketing business that the live giant and its ticketing company wouldn't support.

Initially, it wasn't clear what specific issues Fix The Tix was going to prioritise. Though last month it became clear that secondary ticketing was likely to be a priority when organisers of the campaign hit out at updated legislative proposals from Congress member Bill Pascrell Jr.

He's a vocal Ticketmaster critic who has been trying to introduce new laws that would regulate ticketing for more than a decade. But his BOSS Act - the latest version of which was introduced into the House Of Representatives last month - actually includes some proposals that would empower the resellers of tickets, ie the good old touts and scalpers. Basically, it would make it harder for concert promoters to restrict the resale of their tickets.

Fix The Tix reps stated that although some of Pascrell's proposals were favourable - such as forcing more transparency on the ticketing sector - the pro-tout provisions were very bad. The BOSS Act, they added, "provides some transparency for consumers" but "in exchange for anti-fan and anti-artist handouts for scalpers and secondary ticketing platforms that do not contribute to the live entertainment ecosystem".

In the more detailed manifesto published this week, Fix The Tix sets out various criticisms of the secondary ticketing market and proposes a number of ways in which it should be regulated. The manifesto states: "Fans and artists are facing the glaring consequences of an unchecked ticketing market that has been exploited by predatory resellers. If Congress does not act, the status quo - devoid of essential protections - leaves consumers vulnerable and harms artists".

"Predatory and deceptive practices run rampant", it adds, "as ticket resale platforms become breeding grounds for fraud, counterfeit tickets, and exorbitant price gouging. As a result, according to Bloomberg, resale ticket prices on one platform - Stubhub - 'have increased more than 100% since 2019, while the face value of tickets has increased only 10%'".

"Moreover", it continues, "predatory resellers undermine the hard work, talent, and livelihood of artists, making money off their backs while limiting the number of live events fans can attend, quashing the careers of emerging artists".

It then says: "We urge Congress to enact comprehensive legislation that safeguards consumers from fake tickets, price gouging, and other deceptive practices, provides transparency in ticket pricing, and restores integrity to the ticketing marketplace".

In terms of possible new laws, Fix The Tix says that Congress should "make it illegal for resellers, professional ticket brokers and ticket platforms to violate the artists' and venues' ticket terms and conditions, including restrictions that prohibit price gouging of fans through the resale of tickets above face value".

Although possibly slightly tougher in its wording, that is similar to the first demand in Live Nation's campaign, which says that "artists should decide resale rules", so to "protect artists' ability to use face-value exchanges and limited transfer to keep pricing lower for fans, and prevent scalpers from exploiting fans".

A number of the other proposals from Fix The Tix also echo Live Nation's requested reforms. That includes better enforcement of the existing laws that ban touts from using bots to hoover tickets from primary sites; a ban on speculative selling, where touts sell tickets they don't actually have yet; and a law mandating that all ticket sellers - primary and secondary - list the full cost of a ticket, including any fees and commissions, upfront.

But there are some proposals from Fix The Tix that go beyond what Live Nation is actively supporting. That said, some of those are unlikely to be overtly opposed by the live giant. Though some might be.

Perhaps the most interesting proposal is that Congress should "require that contact information of secondary market ticket buyers be provided to the artists and venues for the show they will attend to ensure that all fans can be contacted by a venue or artist if a show is rescheduled or if there is an emergency".

And also ensure that "secondary ticketing buyer information is protected and not used for sales or marketing purposes without the express permission of the fan".

It also says that Congress should "prohibit companies that operate both primary and secondary ticketing platforms from forcing tickets sold for more than face value to only be resold on their platforms" and "prohibit companies that are primary sellers and secondary resellers from offering secondary resales on the same web page or display where the primary seller also offers tickets for primary sale".

Since Ticketmaster operates both primary and secondary ticketing sites in the US, the latter proposal may raise some concerns for Live Nation. Although compared to the other campaigns and proposals out there that seek to tackle Live Nation's market dominance head on, it's not so dramatic a demand.

With multiple proposals already circulating around Congress - including Pascrell's BOSS Act, another that includes a couple of the things proposed by Live Nation and Fix The Tix, and another that is focused on Live Nation's market dominance - it remains to be seen whether Fix The Tix's campaigning influences any of those, or leads to the formulation of additional separate proposals.

You can read Fix The Tix's full manifesto here.

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DistroKid sued in dispute over allegedly malicious copyright takedown
DIY distributor DistroKid has been sued as part of a lawsuit over an alleged misuse of the notice-and-takedown system set out in US copyright law.

The distributor is accused of breaching its fiduciary duty to one of its clients by not properly communicating information about and investigating the specifics of a takedown notice that was issued to the streaming services against one of that client's tracks.

The plaintiffs in the case are an artist called Damien 'Frosty The Doeman' Wilson and his label Doeman Music Group. Wilson and his label used the services of DistroKid to get his music onto all the streaming services.

That includes a track called 'Scary Movie', which Wilson made in 2020. On the track, he collaborated with another artist called Raquella George.

According to the lawsuit, Wilson paid George to provide "a short clip of her voice" to include in the track, which basically involved her recording some words at his instruction. The track was then released, via DistroKid, with George credited as a contributor.

After the release of 'Scary Movie', Wilson and George fell out. And in January 2021, George messaged Wilson via Instagram demanding that her name be removed as an artist on the track. She then allegedly said that, if he didn't comply with her demand, she would be forced to issue a takedown notice against the recording. Which she then seemingly did.

The notice-and-takedown system is part of the good old copyright safe harbour under US copyright law. Digital platforms are obliged to put in place systems via which copyright owners can have any content stored on those platforms that infringe their rights removed.

Operating such a system is a requirement if the platform wants to avoid liability itself for hosting copyright infringing material.

When US Congress introduced the copyright safe harbour in the 1990s it recognised that those takedown systems could be abused. To that end, the law says that anyone who issues a takedown against a piece of content when they know that they don't have a legitimate copyright claim can be sued for damages.

It also allows whoever uploaded the content against which a takedown notice has been issued to submit a counter-notice. And, the US Copyright Office explains in a document on all this, "following receipt of a compliant counter-notice, the [platform] must restore access to the material after no less than ten and no more than fourteen business days, unless the original notice sender informs the service provider that it has filed a court action against the user".

In his lawsuit, Wilson insists that he owns the copyright in 'Scary Movie', adding that George never even made any claim to the contrary. Therefore, whatever grievances she may have over being publicly connected to the track, she did not have a right in law to issue a takedown notice under the copyright safe harbour system.

George herself is also named as a defendant in the lawsuit for her alleged misrepresentation and abuse of the takedown system. However, Wilson also reckons that DistroKid did not do enough to protect his interests once the allegedly malicious takedown had been submitted.

It sent him an email confirming that it had been notified about the takedown notice by certain streaming services which had seemingly removed the track.

However, they did not inform Wilson about the specific services that had received the takedown notice nor provide any information regarding where he could send counter-notices. Instead, they said that he would need to contact George to settle the dispute.

The streaming services themselves obviously tend to respond quickly to takedown notices because they don't want to find themselves being held liable for any copyright infringement.

The distributors, meanwhile, are prone to generally accept takedowns when they occur, and stop artists and labels from redelivering tracks that have previously been subject to takedown notices.

They also don't want to be accused of copyright infringement, plus they don't want to annoy any of the streaming services, because that can impact on their rankings with the services, which can in turn impact on their ability to quickly and efficiently deliver content.

Plus, of course, the distributors are under ever more pressure within the music industry to help stop infringement and fraud on the streaming platforms, and responding to and complying with takedowns are part of achieving that.

Meanwhile, DIY distributors like DistroKid - which distribute millions of tracks, usually in return for modest fees charged to the artist or label - want to automate as much of the distribution process as possible. They don't want to end up spending hours of time investigating and dealing with copyright disputes, and the back and forth of takedown notices and counter-notices.

However, that negatively impacts on independent artists and labels that find their music is being removed from streaming services because of mistaken or malicious takedown notices.

If the issuer of the takedown isn't compliant, then the artist or label needs to rely on the counter-notice system, not least because of the costs and time associated with pursuing any legal action against whoever issued the takedown.

With all that in mind, Wilson argues that DistroKid breached its fiduciary duty - and an implied covenant of good faith and fair dealing - by failing to provide him with the information and support he and his label needed to fight back against the allegedly malicious takedown.

To what extent such liabilities can be extended to DistroKid in what is primarily a dispute between Wilson and George remains to be seen. But the abuse and misuse of takedown systems is a definite issue, and one that primarily affects independent artists and labels.

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BPI and MU comment after talks over a new session musician agreement stall
Record label trade body BPI and the Musicians' Union have both issued statements about recent negotiations to amend the UK record industry's session musician agreement, which recently stalled.

Former BPI boss Geoff Taylor confirmed that those negotiations were ongoing at a hearing of the culture select committee in the UK Parliament last year. That hearing was reviewing the government-led work that was initiated following the committee's inquiry into the economics of music streaming.

Music-maker groups told MPs that this work needed to focus more specifically on artist and songwriter remuneration. Whereas working groups had been set up to discuss issues around data and transparency, no such committee had been convened to talk about how music-makers share in streaming income, which for artist and songwriter groups is the biggest issue of them all.

Presenting the label perspective to MPs, Taylor insisted that changes had already been made within the industry to address issues around artist remuneration. Artists signing new record deals can negotiate better royalty rates today than in the past. And with heritage artists, many labels - including all three majors - have committed to pay royalties through to unrecouped artists after a period of time.

Meanwhile, he said, "we've been doing work on the industry side with the Musicians' Union, where we've put a proposal to the MU for a significant increase in session rates for the session musicians to ensure that they are not left behind". This basically meant that the BPI and MU were in talks to amend an agreement that, among other things, sets a minimum rate for session musicians involved in new recordings.

However, at that select committee hearing music-maker groups argued that much more still needed to be done to address how artists and songwriters - including session musicians - share in the monies generated when their music is streamed.

To that end, those groups welcomed the news last month that the government is now convening a working group focused on music-maker remuneration.

Shortly before that working group was announced, it emerged that the BPI/MU talks over the deal for session musicians working on new recordings had not resulted in any agreement. That is partly because of a disagreement over what is a fair rate for session musicians to be paid - and what rights those musicians should grant a label or frontline artist in return for that payment.

But it's also partly because of a disagreement over whether or not session musicians should earn when recordings they performed on in the past are streamed. Under copyright law, session musicians are due remuneration when their music is broadcast or played in public, oblivious of any deal they did with any other labels or other artists in the past.

Many in the music-maker community reckon that a similar arrangement should apply to streams, whether that is achieved through an extension of performer rights in law or a voluntary agreement within the industry. But in a statement issued to Music Business Worldwide, the BPI's interim CEO Sophie Jones says that those demands - on top of the "generous deal" offered around new recordings - are neither "viable nor reasonable".

However, MU General Secretary Naomi Pohl argues that, even with the BPI's proposed changes, session musicians' rates "would remain lower than other equivalent MU recording rates". Meanwhile, "the BPI represents major record labels who are making record profits from music streaming while session musicians currently receive no royalties at all, even if they play on big hits".

With the negotiations having stalled, the MU will now be keen to put session musician payments - on both new and existing recordings - on the agenda for the new remuneration working group.

The full statement from BPI's Sophie Jones reads as follows: "The BPI and its record label members have offered the Musicians' Union a historically high increase of nearly 40% in the minimum fees paid to session musicians working on pop and rock recordings (15% for classical, ie working with orchestras)".

"This unprecedented rise addresses the fact that session musician earnings have not increased since 2019, and have not risen as quickly as those of artists and songwriters in the streaming era. This offer also recognises the cost of living challenges faced by all workers, and is well above many of the negotiated settlements being reached in other parts of the economy".

"It is disappointing that the MU declined to even put this offer to its members to make them aware and let them have their say, and simply dismissed it - citing technical procedures".

"The demands that the MU are making on top of this generous deal, including royalty payments on past recordings where musicians have already been paid on agreed terms, are neither viable nor reasonable".

"What the MU is asking would ultimately impact featured artist and songwriter earnings while also reducing the ability of labels to support future talent; and it ignores the way in which session musicians are paid - free to work with whomever they choose, usually as part of a portfolio career, and via a guaranteed upfront fee that is paid irrespective of a recording's success or it even being released at all".

"If you look to the world of film and TV for comparisons, this move would be like film companies being asked to retrospectively pay a royalty to all the cast and extras engaged to work on a project".

"The offer we have made would benefit session musicians with a guaranteed pay rise whilst enabling record companies to also support featured artists and future investment".

"At a time when our industry faces many common challenges, not least with AI, which poses a particular threat to musician livelihoods, it is vital that we all work together in a spirit of collaboration to grow the UK music market and music exports to the benefit of all. We urge the MU to think again and consult their members on this significant offer".

Meanwhile, the MU's Naomi Pohl says: "The BPI have made an offer of a roughly 38% increase on the £130 minimum session rate for commercial recording sessions. There is a 15% offer on the classical rates. Even with a 38% increase, the session rate has barely increased in fifteen years and would remain lower than other equivalent MU recording rates. On this basis, MU committee members don't feel the offer is good enough to put to a ballot of members".

"The BPI represents major record labels who are making record profits from music streaming while session musicians currently receive no royalties at all, even if they play on big hits".

"The union is campaigning to fix streaming and get royalties for all musicians, like on radio broadcast for example. The BPI's offer referred to remunerating session musicians for streaming but an uplift on the session fee would not help the thousands of musicians on popular catalogues who receive nothing at all. They also want to bundle in some other important rights including buying out an existing royalty stream".

"All in all, the deal doesn't come close to addressing the music streaming issue or offering a decent pay rise. The minimum session fee has been far too low for far too long. We hope for a better offer and will continue to campaign for royalties on streaming. And we look forward to engaging in the creator remuneration working group which we hope will examine options for fair remuneration for all musicians, including featured and session players".

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AIF launches campaign to subsidise the first festival experience of eighteen year old music fans
The UK's Association Of Independent Festivals has announced a new initiative that will raise funds to enable anyone who turned eighteen in the last few years to attend a festival operated by one of the trade group's members for just £18.

Explaining the rationale behind what is called the First Festival Campaign, AIF says that the scheme has been "built on the belief that, upon turning eighteen, everyone should be able to access the pivotal cultural moment that festivals provide. But, in recent years, many have not had that opportunity. The COVID-19 pandemic saw most people who were turning eighteen at the time miss out on their first festival experience due to lockdown".

"Even in 2022", it goes on, "lots of festivals rolled tickets over from 2019, meaning that hundreds of thousands of young people missed out on this key moment again. Still today, the cost of living crisis has made attending festivals out of reach for many people".

With that in mind, it explains, "the First Festival Campaign means that anyone in the UK who was/is eighteen years of age between 1 Sep 2019 and 31 Aug 2023 can register interest in attending one of AIF's member festivals via the First Festival website".

"Meanwhile, individuals and organisations are able to make donations to this campaign. Tickets will be released as funding targets are met, with eligible eighteen year olds on the waiting list able to buy a ticket for their chosen festival for just £18".

The campaign has been inspired by government-run schemes in other European countries, including Germany, France and Italy, where eighteen year olds were given a voucher that could be used to access cultural events and activities.

Commenting on the initiative, AIF CEO John Rostron says: "I was speaking to some students recently who are set to graduate this year and it became apparent that none of them had ever attended a festival. It really hit me just what an impact COVID had on their lives".

"So we decided to do something about it", he adds. "Everyone should have a first festival experience, and it should be a thrilling and vital part of every person's journey into adulthood. So many of us have wonderful festival memories to share, and brilliant festival stories to tell. We're hoping that there'll be individuals and organisations who are able to spare some money to put into the fund to help people attend their first festivals this year".

Participating festivals include Belladrum Tartan Heart, BlueDot, End Of The Road, Green Gathering, Kendal Calling, NASS, Shambala, UK Tech-Fest and We Out Here.

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Slipknot down two members as European tour begins
Slipknot are two members down on their European tour, which started this week. Percussionist Shawn 'Clown' Crahan announced earlier this week that he would be sitting out the tour in order to care for his sick wife. Meanwhile, yesterday, the band announced that they had "parted ways" with sampler and keyboardist Craig Jones.

Jones originally joined the band in 1996 during the making of their demo album 'Mate. Feed. Kill. Repeat', first as a guitarist before moving to samples and keyboards. In a post on social media, which was subsequently deleted, the band said: "To our fans, Slipknot is announcing that we have parted ways with Craig Jones. We wish Jones all the best for the future".

A previously unseen member of the band appeared on stage with them for the first night of their European tour on Wednesday and, following that performance, the band shared a picture of said new member, hooded and masked, on their Instagram profile without further comment.

Band founder Crahan's departure from the stage, meanwhile, is only temporary. In a post on his own Instagram profile earlier this week, he told fans: "I would like to take a moment to tell everyone that I'm back home supporting my wife through some health issues, and I'll be back on the road as soon as I can".

"We've been through this before", he added, "and as always, we appreciate the love and support. See all of you very soon".

The band return to the US for more shows in July and August. It is not yet clear if Crahan will rejoin the band for those dates. They are due to play Download Festival in the UK this Sunday.

Elsewhere in Slipknot news, the band have today released surprise new EP 'Adderall', featuring a number of new tracks, including three versions of the ambient title track. From it, this is 'Adderall (Rough Demo)'.

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DEALS

Warner Music's label services division ADA Worldwide is now handling global distribution for Rostrum Records. "Rostrum Records was founded on a commitment to bring innovative, artist-first approaches to the music industry", says the label's President Erika Montes. "20 years later, we are excited to partner with the ADA team on a shared vision to deepen the support and amplification of independent artists".

Peermusic Nashville has signed artist and songwriter Karl Michael to a global co-publishing deal. "Working with the team at Peermusic is a dream come true", says Michael. "This is a team of outstanding music publishers and to be able to leverage their global reach and network is a great opportunity".

Concord Music Publishing has signed country pop artist Lindsay Ell to a worldwide publishing deal. "It feels amazing to be part of a team that is so engaged in creating a nurturing environment for all their writers," says Ell. "Concord is so team-focused and from the moment I walked into that building, I felt like everyone had my back. I'm truly so excited to start this new chapter with this team!"

CTM Outlander has acquired the songs catalogue of songwriter and producer Shane McAnally, and has also agreed a deal to administer his publishing companies SMACKSongs and SMACKBlue. "I am very excited to start this new partnership built on a mutual passion for all things music, along with the global reach of this incredible team", he says.

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APPOINTMENTS

FUGA has confirmed that Lara Baker is its new General Manager for the UK, following the promotion of Liz Northeast to SVP EMEA. "I'm delighted to join the global FUGA team, which truly offers best-in-class distribution and marketing to a client base that reads like a who's who of the independent sector", says Baker, who previously worked for Songtrust which, like FUGA, is owned by Downtown. "Empowering independent music and labels has been the core focus of my entire eighteen years in the music business", she adds, "and no one is doing it like FUGA".

Music data and distribution management platform Revelator has announced a number of new appointments. Rich Masiojoins from Pandora as VP Of Partnerships; Miriam Lottner joins from gaming start up XHUB as VP Of Customer Experience; Amram Ben-David joins as VP Research & Development; while Golda Bitterli has been promoted to VP Sales and Noah Roth to Chief Commercial Officer. "We're looking forward to expanding the services we offer at Revelator as the music market expands", says CEO Bruno Guez. "Rich, Mimi, and Amram each bring incredible expertise to their roles and will play a crucial part in this endeavour".

Distiller Music Group has promoted Ian Carew to Head Of Marketing & Operations. "Ian has many years of invaluable experience working at a senior level in the music industry and has incredible knowledge of all aspects of marketing and label operations", says CEO Sam Dyson. "His expertise and insight will continue to be a huge asset to our team". The company has also announced that it has hired Becca Price as Campaign Manager, Lois Burdett Proctor as Label & Publishing Assistant, and Nancy Thirkell as Finance Assistant.

The Scottish Music Industry Association has appointed ten new directors to its board. They are: Andy Duggan (WME), Anneliese Harmon (Music Managers Forum), David Mogendorff (TikTok), Dougie Brown (Belladrum Tartan Heart Festival), musician Horse McDonald, Jennifer Anderson (The Bothy Society), Phoebe Inglis-Holmes (BBC Introducing In Scotland), Sarah Johnston (FUGA), Thursa Sanderson (Drake Music Scotland) and economist Will Page.

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RELEASES

Sam Smith and Madonna have released their single together 'Vulgar'.

Mahalia has released new single 'Cheat', featuring JoJo. "I can't quite believe this one is real", says Mahalia. "I have been a fan of JoJo for as long as I can remember so having her on this record really is a dream come true for me. I love watching people come together through hardship and everything about this song represents that. For me, it is a song about strength, power and letting go".

VV Brown has released new single 'Twisted', taken from upcoming new album 'Am I British Yet?'

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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One Direction reunion conversation "hasn't happened", says Niall Horan
The members of One Direction are all still great mates and talk all the time, according to Niall Horan. But you know what they don't ever talk about? Reforming the band. Not once. Not ever.

"It's just like the conversation hasn't happened", Horan told Zane Lowe in a new interview for Apple Music 1.

Asked by Lowe if the question of a reunion "sucks the air out of the room", Horan said: "No, I don't think it sucks the air out the room. It's more, the answer's still the same. The conversation hasn't happened. We speak regularly, but that conversation hasn't happened".

That's not to say that the conversation won't happen one day, though. And Horan seems confident that the group will get back together in some capacity in the future.

On that, he added: "God knows what it ends up being. It could be like the 'Friends' reunion, it could be a whole tour. God knows what it is, but it hasn't been spoken about".

The 'Friends' reunion, of course, was a one-off TV show where the cast members looked back on the show, rather than getting back together for a new episode. And speaking of friends, Horan assures us that the members of 1D will always be best buds no matter what, telling Lowe: "[The friendship] can't go anywhere. That bond is there".

So that's nice. Maybe it's enough to know that One Direction still all chat jovially without ever addressing the elephant in the room. I'm sure it's plenty.

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