CMU Daily 09.09.20: European court says American performers should be getting their share of Irish radio royalties, Apple hits back at multi-billion dollar Epic Games for masquerading as the underdog in Fortnite app payments dispute

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European court says American performers should be getting their share of Irish radio royalties
US collecting society SoundExchange has welcomed a ruling in the European Court Of Justice about music royalties collected in Ireland. SoundExchange hopes that the judgement made in a court nearly 4000 miles away from its Washington base could provide an income boost to its performer members.

This all relates to how copyright systems around the world are connected through global treaties and how monies flow through the collective licensing system when music from one country is played on the radio or in public in another country.

On a basic level, the copyright laws of any one country usually directly protect works created in and by citizens and businesses of that country. However, as a result of various global treaties, those laws will also protect works that have direct protection under the copyright system of any other country that has also signed said treaties.

Meanwhile, when it comes to music rights and those scenarios where the music industry licenses through the collective licensing system, separate collecting societies are set up in each country. Each society mainly signs up members and issues licences in its home country.

However, all the societies around the world are joined up through reciprocal agreements, so that each society can issue licences covering something nearing a global catalogue of music.

Artists, songwriters, record labels and music publishers can then join every society in the world, or just their local society which will collect their royalties from other societies in other countries via those reciprocal agreements. Simple.

The dispute here relates to monies collected by the record industry's Irish collecting society - PPI - and what happens when recordings played on the radio or in public in Ireland are from US artists. Because in this scenario a complication kicks in.

The complication begins with a quirk of US copyright law, which doesn't provide all the usual controls as part of the sound recording copyright.

As a result, in the US, AM/FM radio stations and businesses playing recorded music in public don't need a licence from or to pay any royalties to the record industry. Only online and satellite radio need to pay royalties to artists and labels, which they do so via the aforementioned SoundExchange.

Because of this quirk, in some countries when local collecting societies collect money for the broadcast or public performance of recordings, if those recordings are American it doesn't pass any of the money over to the US record industry, on the basis that no money is flowing in the other direction.

This approach to international royalties is sometimes called the "reciprocity" approach or the "mirror test" - ie a country looks at whether its record industry earns royalties in another country and then reciprocates.

Recording royalties collected through the collective licensing system are usually shared between labels and performers. Depending on the country, this restriction over US recordings sometimes affects both labels and performers or - as in Ireland and, as it happens, the UK - only performers.

The US record industry - via SoundExchange - has become increasingly vocal about this limitation in recent years, arguing that it's unfair and an incorrect interpretation of the global copyright treaties.

Rather than taking a "reciprocity" approach, countries should apply a principle known as "national treatment", which basically says that if domestic labels or performers earn royalties under any one copyright system, so should the labels and performers of other countries that are signatories of the same treaties.

In Ireland the whole thing came up as part of a wider dispute between PPI, the country's collecting society for labels, and RAAP, the society for performers - Ireland having separate societies for labels and performers, unlike in the UK where PPL represents both.

As part of that dispute the Irish courts sought clarification from the European Union courts on what European law says about all this.

They wanted clarity on whether the "reciprocity" approach could be applied at all according to a 1996 copyright treaty to which the EU is a signatory, and also whether that approach could be adopted for US performer royalties but not US label royalties.

In a preliminary ruling, the ECJ has said that the current Irish approach is not in line with European law and the way the EU has chosen to interpret the global copyright treaties. Meaning that US performers, as well as labels, should be earning royalties from radio play and public performance in Ireland.

SoundExchange says that that ruling "has broad implications for music creators around the world. By adopting the principle of 'national treatment' – that a country should provide foreign entities the same benefits and protections as it would its own citizens – the ECJ is setting the stage for all artists to be paid royalties when their music is played on EU radio broadcasts and public performances".

Meanwhile, the society's boss Michael Huppe said: "Today's decision by the European Court Of Justice reflects a growing global recognition that countries should treat all music creators the same, regardless of their nationality. The ECJ reaffirmed equal treatment as a fundamental principle of how nations engage with one another".

"We appreciate the leadership of Ireland's RAAP in advancing the cause of fairness within the global community of music creators", he went on. "We urge EU member states to quickly follow suit so that all musicians and labels, from whatever territory, can be properly respected for the benefits they provide beyond their home country".

A key priority for SoundExchange in this whole matter is actually a former EU member state - that being the UK, of course. Whether or not the British government will pay any attention to this ruling and seek to voluntarily amend UK law to bring it in line with the rest of the EU remains to be seen.

If not, SoundExchange and a bunch of other US music industry groups are already lobbying hard to have enforced 'national treatment' included in any post-Brexit US/UK trade deal. So it'll probably happen anyway, even if UK ministers would like to adopt a policy of 'screw those meddling European judges'.

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Apple hits back at multi-billion dollar Epic Games for masquerading as the underdog in Fortnite app payments dispute
You know how Apple is a big bad evil monopolist with no respect for competition law or a fair marketplace that will gladly screw over the little guy to in order make a quick buck?

You know that right? Because 'Fortnite' maker Epic Games has been very keen to tell us all about it in recent weeks. Well, fuck that. Epic Games is just a penny pinching multi-billion dollar enterprise falsely masquerading as some sort of corporate Robin Hood character in a bid to cover up its blatant breach of contract.

By which, I mean, Apple has responded in its legal bust-up with Epic Games.

As you'll remember, Epic has gone to war with Apple over its App Store rules and in particular what they say regarding in-app payments. Epic argues that Apple's insistence that in-app payments on iOS devices are made via the tech giant's own commission-charging payment platform, and that companies can't even sign-post alternative payment options from within their iOS apps, is anti-competitive.

It is by no means the first app-making company to make these claims. Spotify went big on its beef with Apple over the App Store rules last year by filing a complaint with the European Commission's competition regulator and launching a consumer-facing website outlining why those rules are bullshit. Well, I say Spotify went big. It seemed that way at the time. But that was before Epic Games went nuclear on the issue.

For its part, Epic added an alternative payment option on the iOS app version of 'Fortnite', knowing that doing so would get the game kicked out of the App Store. As that happened, it launched a PR and advertising offensive in order to ensure that nine years olds everywhere were telling their parents at every available opportunity just how evil Apple is.

Meanwhile, Epic's lawyers took the matter legal in the Californian courts while also seeking an injunction banning Apple from banning 'Fortnite' from its App Store.

For its part, Apple was unsurprisingly disparaging about all this from the off. And now its lawyers have formally responded via a lengthy court filing submitted yesterday.

In it, Apple denies all of the gaming firm's allegations, presents no less than 27 defences to the legal claims made by the 'Fortnite' maker, and accuses Epic of breach of contract, breach of good faith, unjust enrichment and a bunch of other stuff for good measure.

"Epic's lawsuit is nothing more than a basic disagreement over money", Apple states. "Although Epic portrays itself as a modern corporate Robin Hood, in reality it is a multi-billion dollar enterprise that simply wants to pay nothing for the tremendous value it derives from the App Store. Epic's demands for special treatment and cries of 'retaliation' cannot be reconciled with its flagrant breach of contract".

Before getting into all the denials and defences and counterclaims, the legal filing summarises recent events from its perspective, recalling how - after Apple refused various requests from Epic for special treatment on payments - "rather than abide by its long-running contractual agreements pursuant to which it has earned over $600 million, Epic resorted to self-help and subterfuge".

"On 3 Aug 2020, Epic sent a Trojan horse to the App Store - a new version of 'Fortnite' that included what Epic has euphemistically described as a 'hotfix' that allows Epic to bypass Apple's app review process and ability to collect commissions by directing app users to pay Epic instead, cutting Apple out entirely".

Not only that, but, "unbeknownst to Apple, Epic had been busy enlisting a legion of lawyers, publicists and technicians to orchestrate a sneak assault on the App Store. Shortly after 2am on 13 Aug 2020, the morning on which Epic would activate its hidden commission-theft functionality, [Epic CEO Tim] Sweeney ... emailed Apple executives declaring that 'Epic will no longer adhere to Apple's payment processing restrictions'".

"Hours after Mr Sweeney's 2am email", it goes on, "Epic triggered the 'hotfix' it previously planted in 'Fortnite' to push through a new external payment runaround - which Epic had deliberately concealed from Apple's app review process - that usurped Apple's commission and brazenly flouted its rules".

"This was little more than theft. Epic sought to enjoy all of the benefits of Apple's iOS platform and related services while its 'hotfix' lined Epic's pockets at Apple's expense".

After Apple "rightfully enforced its rights under the contractual agreements and the guidelines by removing the non-compliant 'Fortnite' app from the App Store", Epic attempted to "recast Apple's conduct as 'retaliation'. But the exercise of a contractual right in response to an open and admitted breach is not 'retaliation'; it is the very thing to which the parties agreed ex ante".

"Epic proceeded to launch a calculated and pre-packaged campaign against Apple 'on a multitude of fronts – creative, technical, business, and legal', as Mr Sweeney had previously threatened", it then says. Which meant, alongside the lawsuit, "an animated 'Fortnite' short film that mimicked Apple's seminal 1984 Macintosh campaign and villainised Apple for enforcing its contractual right to remove the non-compliant 'Fortnite' from the App Store".

Fun times indeed. The denials and defences and counterclaims then follow, although they can be pretty much summarised in one single sentence from the legal filing: "Epic's wrongheaded complaint is fatally flawed on the facts and the law".

And so the dispute continues.

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Quincy Jones signs new publishing deal with Warner Chappell
Quincy Jones has announced a new deal with Warner Chappell, which will see the publisher administer his songs catalogue on a global basis on behalf of his Quincy Jones Music Publishing company.

Warner Chappell Co-Chairs Guy Moot and Carianne Marshall say in a joint statement: "A creative genius and a cultural icon, there is no figure in modern music who has accomplished so much across so many generations; who has broken so many musical and social barriers; and whose impact has been so wide-ranging as that of Quincy Jones".

"As a composer, Quincy has embraced and blended nearly every genre to create a unique, incredibly rich and diverse body of work", they continue. "Whether it's driving people onto the dancefloor or propelling the narrative of a film, Quincy's music transcends race, style, and age. We are THRILLED that he has chosen to return to Warner Chappell, and it's an honour to represent the work of a true master".

Nancie Stern, Vice President of Quincy Jones Music Publishing, adds: "We are so excited to be working with Warner Chappell again. They have an exceptional creative and administrative team, and I know we will have a long and successful relationship working together".

"Quincy started his journey in the publishing business with Warner Chappell and built our incredible catalogue [with them] during those crucial years", she then explains, "so it seems right that we have returned to where it all began".

Jones' songwriting catalogue includes more than 2000 songs written over the course of a seven decade career.

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Wu-Tang Clan sign to Downtown Music Publishing
Wu-Tang Clan have signed a new publishing deal with Dowtown Music. The deal covers their full back catalogue, as well as selected works from individual members' solo projects and collaborations.

"We are excited to be partnering with Downtown and entrusting them to handle our historic back catalogue", says band leader RZA. "Downtown's system is ideal for us - they have the global reach and capacity of a 'major' while maintaining strong, highly personal relationships with their clients".

"Their customised approach to clientele accompanied with their focus in areas like rights management and distribution make Downtown an ideal partner for Wu-Tang Productions", he adds.

"Wu-Tang Clan isn't just one of hip hop's most influential groups, it's an iconic institution in every sense of the word - with a legacy that extends well beyond the realm of music", adds Justin Kalifowitz, CEO of Downtown Music Holdings. "As a New Yorker, representing some of East Coast hip hop's most revered legends - whose stories are so ingrained in the culture of our city - is a tremendous honour".

Rappers covered by the deal include group founders Ghostface Killah, GZA, Inspectah Deck, Method Man, Ol Dirty Bastard, Raekwon and U-God. Oh, and RZA himself, even though he recently did a personal deal with the Hipgnosis Songs Fund. But I'm sure everyone knows what they got and what they're doing, and that's all OK.

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Craig David signs to Round Hill
Craig David has signed a new worldwide publishing deal with Round Hill Music, covering both his back catalogue and future releases.

"I am THRILLED that Craig has entrusted Round Hill Music with his incredible catalogue and for letting us partner with him on future music projects", says Robin Godfrey-Cass, Managing Director of Round Hill's London office.

"Craig is, quite frankly, a national treasure and we are proud to be the global custodians of his music", he goes on. "I and the whole Round Hill Music team are excited about Craig's future plans and look forward to adding our passion and expertise to his already brilliant team. Craig is a total professional and one of the most dedicated, talented and nicest human beings around".

David himself adds: "After 20 years as a performer and songwriter this feels like a fresh start. The Round Hill Music team are obviously real music fans as well as talented and proven music publishers – I couldn't be happier that my music has found a new home with them".

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Holy Roar team resign following sexual assault allegations against the label's owner
The employees of independent record label Holy Roar last night announced they had all resigned from the company with immediate effect after allegations of rape, sexual harassment and abusive behaviour were made against its owner Alex Fitzpatrick.

The announcement from the Holy Roar team - as well as statements from a number of artists signed to the label - followed a post on Instagram earlier this week that called on those associated with Fitzpatrick and his company to "consider how their affiliations ... may be perceived by present and future audiences due to the damaging and abusive behaviour of Alex".

The post also stated that "multiple attempts" had been made to make Fitzpatrick aware of the harm he has allegedly caused through abusive behaviour, but that those efforts had "not been respected or taken on board".

A number of artists who work with the label - including Ithaca, Apologies I Have None, Respire, Svalbard, Palm Reader, Fall Of Messiah and Renounced - quickly issued statements acknowledging the allegations, pledging support for the alleged victims and confirming they were now reviewing their options regarding future work with Holy Roar.

One of the label's most prominent acts, Rolo Tomassi, went one step further, immediately confirming they had stopped working with Holy Roar entirely. They stated on Twitter: "In light of the allegations about Alex Fitzpatrick, we have ended our relationship with him and Holy Roar as a label, effective immediately. We have zero tolerance for abusive behaviour and stand in solidarity with those that have come forward".

Late last night Holy Roar employee Justine Jones posted a statement on the label's official Twitter account on behalf of herself and her two colleagues. She wrote: "We have spent the last 24 hours in horror of the allegations that have been made against Alex Fitzpatrick, the owner of Holy Roar".

"The extremely serious allegations are against everything that myself, Sam, Wil and our bands stand for", she added. "We, the label's employees, are resigning from working with Holy Roar, effective immediately. We are sorry for the long silence, it was a lot for us to process with our bands and personally and we found out the same time as the public".

Fitzpatrick himself is yet to respond to the allegations and what they mean for the future of his label, though last night's post from his employees concluded: "Alex will be making his own statement in due course".

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DEALS

Liz Phair has signed to Chrysalis Records to release her first album for more than a decade next year. "I feel like I have found a home at Chrysalis and that we will do great work together", she says. "I am humbled and honoured to embark on this next part of my career in the sure and steady hands of some of the best in the business".

Sony/ATV has signed country music songwriter and producer Jay Brunswick to a worldwide publishing deal. I have always wanted to write for both Sony/ATV and [Sony/ATV Nashville CEO] Rusty Gaston and now I have the chance to write for both under the same umbrella", he says.

Kobalt's recordings division AWAL has signed a global deal with Joesef. "I'm fucking buzzing to be able to work with a team who understands what's important to me, and all while still owning my own rights", he says.

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APPOINTMENTS

Warner Music has appointed Kareem Chin as Head Of Investor Relations, now that it's got lots more investors post-IPO. He joins from iHeartMedia. "I've always been a fan of WMG's amazing artists and songwriters, and I've been impressed by the company's independent spirit, its commitment to artistry and innovation, and its financial discipline", says Chin.

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RELEASES

Janelle Monáe's back. Janelle! Monáe! Back! Monáe! Wahey! She's just put out new track, 'Turntables'. It's taken from new documentary 'All In: The Fight For Democracy'.

Stormzy has released the video for 'Superheroes', from his latest album 'Heavy Is The Head'.

Unknown T has released the video for 'Aven9ers' featuring KO and V9, taken from his mixtape 'Rise Above Hate'.

Former 2 Bears member Raf Rundell has signed to Heavenly Recordings and released new single 'Monsterpiece'. "I tried hard to be Ian Dury, but realised I couldn't", he says. "So, I tried my best in a different way, and here we are". An album is due next year.

Helena Deland has announced that she will release her debut album, 'Someone New', on 16 Oct. From it, this is new single 'Truth Nugget'. The song, she says, "is about the distance that exists even between the closest people and how friendship involves nurturing the other's solitude. It also touches upon how I experience my guardedness as being part of how I perform my gender".

Penfriend (aka Laura Kidd, fka She Makes War) has released new single 'The Only Way Out Is Through'. "I can't do much of anything when I'm feeling down, let alone write a song about it, but one day in 2019, when I was trudging my way back, I made an attempt to leave a breadcrumb trail for my future self", she says. "This song is my attempt to trap the 'shapeless forces' that 'pull at me', making them solid by assigning words to them, reducing their power and size to something I might feasibly be able to overcome".

Sen Morimoto has released new single 'The Things I Thought About You Started To Rhyme'. His eponymous debut album is out on 23 Oct.

Bassy and Shinobi have released the video for their track 'Riskin'.

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GIGS & TOURS

The Barbican in London has announced a series of shows starting next month, which will be performed to a limited live audience as well as streaming online. Artists scheduled to perform include Erland Cooper, The Divine Comedy, Emmy The Great, Nubya Garcia and Shabaka Hutchings. Details here.

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

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Machine Gun Kelly ditches "essentially copied" album artwork
Last week, Machine Gun Kelly posted the artwork for his new album 'Tickets To My Downfall' online. Although he's now been forced to ditch the hand-drawn album cover, as it turns out it was copied from someone else's photo without permission.

The rapper tweeted the artwork and tracklist for the album on Friday. The striking similarity between it and a photograph posted on Instagram by actor Sen Mitsuji earlier this year was quickly pointed out. The main differences being that the album artwork version is drawn and doesn't feature a cigarette in the subject's hand.

Addressing the issue on Twitter yesterday, MGK wrote: "Found out that the album cover I released was essentially copied from a photo we do not own. I didn't make this design, so I apologise to the original artist. I'm in the process of replacing it right now".

Cue a whole load of other artists posting their own unsolicited artwork for the rapper to consider. Except, it sounds like he already has something else in the works. Given the simplicity of the design he started with, it shouldn't be too hard to knock something up before the album's release date on 25 Sep.

Produced by and featuring Blink 182 drummer Travis Barker, 'Tickets To My Downfall' sees Kelly adopting a pop-punk sound, in a departure from the hip hop of his earlier releases.

Here's recent single 'My Ex's Best Friend'.

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