CMU Daily 17.08.23: SoundExchange sues SiriusXM, Fortnite emote lawsuit could be revived

SoundExchange sues Sirius over $150 million in allegedly unpaid royalties
US collecting society SoundExchange has sued satellite broadcaster SiriusXM over alleged unpaid royalties that exceed $150 million. The dispute centres on how Sirius allocates monies paid by its subscribers to the separate satellite and webcasting services that it operates, because that impacts on how much money it pays for the recordings it uses.

Satellite and online broadcasters in the US can rely on a compulsory licence when it comes to recorded music, meaning they can make use of any recordings at royalty rates set by the good old Copyright Royalty Board. SoundExchange administrates the compulsory licences, collecting the money that is due on behalf of artists and labels.

Different compulsory licences apply for different kinds of operators and services, which means there is one licence for the main Sirius satellite radio service and another for its internet-based set-up. Under the former it must pay the record industry a percentage of its gross revenues, whereas the latter is based on a per-play payment.

But what happens when Sirius sells subscription packages that include access to both its satellite and webcasting services? The rules say that Sirius can allocate some of the subscription money to the satellite service and some to the webcasting service. The revenue share royalty on the former is then calculated based on whatever money is allocated to it.

That allocation process is called the "webcasting exclusion", and the rules provide some guidance on how it should be managed. As SoundExchange notes in its lawsuit, the Copyright Royalty Board has confirmed that the compulsory licence "does not afford Sirius XM unfettered discretion" over how it allocates revenue.

But, SoundExchange argues, Sirius has not been adhering to that guidance, instead allocating monies in a way that simply reduces how much money it needs to pay over to the record industry. Hence why the society reckons it is owned over $150 million.

Noting how Sirius has increased the percentage of each subscriber's payment that it allocates to webcasting in recent years, in part based on a "private survey", SoundExchange states that those increases "defy the purpose of the exclusion, ignore Sirius XM's actual business practice, and rely on patently unreasonable surveys. They are Sirius XM's cynical attempt to avoid paying the royalties it plainly owes".

The society's lawsuit also confirms that "the royalties Sirius XM has withheld by excluding revenue under the webcasting exclusion far exceed the royalties Sirius XM has paid for webcasting, resulting in a windfall to Sirius XM".

Commenting on the lawsuit, which also includes an audit dispute, SoundExchange boss Michael Huppe says: "It is extremely unfortunate that we must bring this action on behalf of creators against SiriusXM".

"In recent years we have viewed SiriusXM as a willingly lawful and compliant company that shares our desire for a robust streaming marketplace", he goes on. "But SiriusXM has and continues to wrongfully exploit the rules to significantly underpay the satellite royalties that it owes".

"It is only because our repeated efforts to resolve this dispute have failed", he concludes, "that we are forced to litigate on behalf of artists and rights owners upon whose hard work SiriusXM has built its business".

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Ninth Circuit court looks likely to revive copyright lawsuit over Fortnite emote
A lawsuit over a Fortnite emote could be revived, after judges in the US Ninth Circuit Appeals Court considered arguments put forward by choreographer Kyle Hanagami in his copyright infringement litigation against the video game's maker Epic Games.

Hanagami sued Epic last year, claiming that a dance sequence he created for Charlie Puth's 'How Long' video had been ripped off for an emote in Fortnite called It's Complicated. However, a lower court judge decided that the moves shared by the Puth sequence and It's Complicated were too generic to enjoy copyright protection.

But yesterday - when considering an appeal filed by the choreographer - judges in the Ninth Circuit seemed persuaded by arguments that, when it comes to copyright and choreography, things are probably not as straight forward as the lower court assumed. Indeed, they might conclude, when it comes to copyright and choreography, "it's complicated".

Fortnite emotes allow gamers to have their in-game avatar move in a certain way. Given that Fortnite users buy emotes, meaning Epic is monetising the movements, that has prompted some interesting copyright questions when an emote seems to be based on a specific person's dance sequence or some other kind of signature move.

Copyright does protect choreography and a number of people have gone legal over Fortnite emotes, accusing Epic of infringing their rights. However, those legal claims have generally been unsuccessful, often because of questions around the copyright status of short sequences of movement.

When dismissing the lawsuit over the It's Complicated emote, the lower court judge concluded that - while Hanagami's full dance sequence is sufficiently substantial to be protected by copyright - the short segment of it that features in the emote is not.

According to Law360, at a session before the Ninth Circuit Appeals Court this week, Hanagami's lawyers set out why they think the lower court judge was wrong to dismiss the lawsuit on summary judgement.

The copyright status of the short segment of the 'How Long' choreography that Epic uses is much more complex than the lower court judge acknowledged, attorney David Hecht argued. And, moreover, this case centres on a relatively new but increasingly lucrative exploitation of choreography and therefore the questions it raises deserve full scrutiny in court.

"This area of the law is really new and still being explored", Hecht said, before adding that "this case is about choreography that was taken because it was recognisable, because it was valuable".

Epic's lawyers again argued that the movements employed in the It's Complicated emote are, well, far from complicated, and certainly not sufficiently substantial to enjoy copyright protection. "At best", lawyer Dale Cendali said, this is "a simple routine that's not copyrightable".

However, according to Law360, the Ninth Circuit judges seemed unconvinced that the It's Complicated dance sequence can be deemed "simple". Nor that the fact the sequence is short automatically means it doesn't enjoy copyright protection.

And when Cendali talked about precedents in "dance law", one judge responded: "This seems like this is an evolving area. Where is the law? I'm trying to figure out where the law is".

We now await to see how the Ninth Circuit rules.

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BMG to rep full Chemical Brothers songs catalogue
BMG has extended its partnership with The Chemical Brothers and will now represent the duo's entire songs catalogue. The new deal comes ahead of the release of the tenth Chemical Brothers album 'For That Beautiful Feeling' next month.

The previous relationship between BMG and The Chemical Brothers began in 2015 and covered the publishing on their new material, including that year's album 'Born In The Echoes'. Under the expanded arrangement, BMG will now also rep the song rights in the duo's first seven albums.

Confirming that, BMG SVP Publishing UK Hugo Turquet says: "The Chemical Brothers are among the most successful, influential and best loved electronic dance music artists the UK has ever produced. To progress from a futures deal to winning the opportunity to represent their entire body of work is a significant vote of confidence and we look forward to justifying their faith in us".

Long-time Chemical Brothers manager Robert Linney adds: "This is a significant year for The Chemical Brothers with a new album coming and substantial live activity both at festivals and with a UK arena tour. BMG are very proactive and we get the attention we need. We are delighted to further extend our relationship with BMG".

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Bauer further expands reach in Ireland via iRadio acquisition
Bauer Media has further expanded its interests in the Irish radio industry by acquiring iRadio, which, it says, is "one of Ireland's leading youth music brands, being the most listened to station in the fifteen to 44 demographics across its fifteen broadcast counties".

It's the media firm's third acquisition in Ireland. It entered the market in 2021 by acquiring the Communicorp Group, which owned national commercial radio stations Today FM and Newstalk, as well as some local and online stations. Then last year it bought Cork-based Red FM.

iRadio airs on FM in the West, North-West and Midland regions of Ireland. It originally began in 2008 as two stations broadcasting in different areas, before merging and becoming iRadio in 2011.

Confirming the acquisition, which is still subject to regulatory approval, Bauer Media's President Of Audio, Richard Dawkins, says: "iRadio has built a loyal and dedicated following across the fifteen counties in which it broadcasts, and will enhance Bauer Media Audio's portfolio in Ireland".

"We look forward to welcoming iRadio to Bauer Media", he goes on, "and providing additional innovation to support the station's long-term growth, further deepening relationships with its listeners and commercial partners alike".

Willie O'Reilly, Chairman at iRadio, adds: "iRadio has grown to become the most popular radio station in its broadcast region keeping listeners across its fifteen counties informed and entertained. The board would like to thank everyone who has been a part of this journey for their contribution. iRadio is now ready to embark on a new chapter as part of Bauer Media Audio. Its best days lie ahead".

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LEGAL

Variety has reported that Coldplay's long-time manager Dave Holmes has sued the band through the English courts. He actually stood down as their manager last year. Sources say the lawsuit relates to a contractual dispute. The legal filing hasn't yet been made public by the courts. But that'll be fun reading when it is, right?

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APPOINTMENTS

Kobalt has promoted Alaine Fulton to VP Creative & Clearance Sync. She was previously Director of UK Creative & Clearance Sync. "It's a privilege to be part of a company that places paramount importance on impeccable customer service to its clients", she says. "During my professional career, I have yet to encounter a more dedicated and hardworking team than the Kobalt Global Sync team".

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RELEASES

The National have released two new singles 'Space Invader' and 'Alphabet City', taken from their upcoming album 'First Two Pages Of Frankenstein'.

Shamir has released new track 'Obsession', taken from their new album 'Homo Anxietatem', which is out tomorrow.

K.Flay and Pierce The Veil have teamed up for new single 'Irish Goodbye'. The track is taken from K.Flay's new album 'Mono', which is out on 15 Sep.

Clt Drp have released new single 'I See My Body Through You'. New album 'Nothing Clever' is out on 8 Sep.

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

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Ed Sheeran won't play Super Bowl because he lacks "pizazz"
Speculation about who might play next year's Super Bowl halftime show is already well under way - aided by claims that Lizzo has been stricken from the official consideration list as a result of the recent allegations made by her ex-dancers. But which world class pop star might do it? Ed Sheeran? Not bloody likely!

The problem, you see, is that the halftime show is a big American event and Ed just doesn't have the pizazz to pull it off. Or at least that's what critics of the idea of him playing the show are saying. Well, one specific critic: Sheeran himself.

"I think it's an American thing. I don't have pizazz", he said in an interview for SiriusXM. "You watch Prince, you watch Michael Jackson, you watch Katy Perry, you watch Lady Gaga, you watch Rihanna, you watch Beyonce, all of these amazing performers - I'm just not that. I'm not gonna have dancers on stage, I'm not gonna have fireworks and blah blah. I just can't, that's not me".

"I don't think that anyone wants to see me do the Super Bowl either", he added. Although, only as the headliner. He said that he would do it as the guest of another act who has the necessary pizazz.

Indeed, he added, there had been "a conversation" about him joining Coldplay to perform his song 'Thinking Out Loud' when they played the event in 2016. In the end though, they were joined by Beyonce and Bruno Mars instead, because - well - presumably because Chris Martin needed his guests to provide the necessary pizazz.

But, says Sheeran, "I would do it as a guest, and then I could say I did the Super Bowl with [whoever]".

So, whoever ends up playing next year, keep Ed in mind. While he's unlikely to boost the pizazz of any performance, he does say that he "could wear sparkles for it".

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