CMU Daily 10.01.22: Bob Dylan collaborator lawsuit latest, MVT says #golocal

Bob Dylan urges court to uphold ruling in dispute with former collaborator's estate
Bob Dylan would like it to be known that judge Barry Ostrager was dead right when he dismissed a lawsuit filed by the estate of one of his former collaborators. And given just how dead right Ostrager undoubtedly was, why allow that estate to have a second go at grabbing a cut of Dylan's big pay day from his 2020 Universal catalogue deal?

Jacques Levy collaborated with Dylan back in the 1970s, ultimately co-writing seven of the nine songs that appear on the 1976 album 'Desire'. He also directed Dylan's 1975 'Rolling Thunder Revue' tour, which featured many of those 'Desire' songs.

Levy's estate went legal after Dylan did that big deal with Universal Music Publishing, in which he sold his songs catalogue to the major for a reported $300 million. The estate argued that it was co-owner of the 'Desire' songs and should therefore get a cut of the Universal money in relation to those works.

However, when Levy and Dylan collaborated the former had a work-for-hire agreement with the latter. Under US law, that means Dylan owned the copyright in the songs they created together. While that agreement provided Levy with a share of any money generated by the songs, it didn't give him co-ownership of the actual copyrights that were sold to Universal.

Also, while Dylan won't be getting any future royalties from the major having taken that big up-front cheque, collaborators like Levy - due royalties under past deals with the musician - will continue to get their share of any future income that their songs generate.

But the estate argued that, while Levy's agreement with Dylan was technically a work-for-hire arrangement, the deal was "highly atypical of a work-for-hire agreement, bestowing on plaintiff's considerable significant material rights and material benefits that are not customarily granted to employees-for-hire and that the label 'work-for-hire' is, in this instance, a misnomer".

However, judge Ostrager did not find those arguments compelling at all. Dismissing the Levy estate's lawsuit last August, he said the 1970s agreement between Levy and Dylan was "clear and unambiguous" - and it was clearly and unambiguously a work-for-hire agreement.

The Levy estate is having another go at pursuing the action, having filed an appeal last November in which they accused Ostrager of citing inappropriate cases and ignoring critical information in his judgement.

But that's just not true, legal reps for Dylan argue in a new legal filing submitted last week. Among other things, they stress that the Levy estate will continue to receive its share of any monies generated by the 'Desire' songs.

As such, the legal filing notes, "the only effect of the Universal sale is that the royalty checks to which plaintiffs are entitled will now come from Universal rather than from Dylan". As a result, the Levy estate's claim for cut of the Dylan's big Universal cheque is an "impermissible double-dip".

"They want both the continuing royalty payments from Universal and a piece of what Universal paid to buy out Dylan", the lawyers go on. "It would be commercially unreasonable, grossly unfair, and downright absurd to pay plaintiffs their continued stream of royalty payments in addition to a share of the sale money when the only rights relinquished in the sale were Dylan's, not plaintiffs".

As for the estate's interpretation of the 1970s agreement - both in its original lawsuit and since last August's judgement - Team Dylan say: "Plaintiffs unleash a torrent of confusing, self-contradictory, and unpersuasive attacks on the trial court's plain-language construction of the 1975 agreement".

They go on: "Plaintiffs urge this court to use extrinsic evidence to override the 1975 agreement's clear and unambiguous language, they reject fundamental canons of contract interpretation, and they advance a tortured reading that the text of the 1975 agreement does not support and that makes no commercial sense".

In conclusion, Dylan's filing states: "Plaintiffs are trying to rewrite the contract terms that have governed the parties' relationship for nearly five decades. Plaintiffs reaped a million dollars in royalty payments under the 1975 agreement - a stream of income for them that will continue unabated long into the future following the sale to Universal".

"Plaintiffs cannot change course and now deny the plain language of that agreement", they add. Therefore the court should affirm Ostrager's original judgement.

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Stream-ripper says judge got it wrong when proposing $83 million damages bill
Legal reps for the Russian operator of stream-ripping websites FLVTO and 2conv have responded to the recent recommendation by a US magistrate judge that he be ordered to pay the major record companies nearly $83 million in damages. Brace yourself for a shock. They don't think he should be ordered pay the major record companies nearly $83 million in damages.

Somewhat unusually, Tofig Kurbanov decided to fight legal action filed by the US record industry in 2018 against his FLVTO and 2conv websites, which allow people to download permanent copies of YouTube streams. Usually when stream-ripping sites are sued by the music industry they quietly take their services offline - or sometimes just ignore the litigation entirely.

As a Russian citizen running websites out of Russia, Kurbanov initially argued that the US courts didn't have jurisdiction in this case. That argument initially worked, but not for long. Which meant Kurbanov found himself arguing with the labels over whether or not providing stream-ripping services constitutes contributory copyright infringement.

Along the way the labels demanded access to the user-logs of FLVTO and 2conv, so to better ascertain what content people were stream-ripping via the sites, and which countries the stream-rippers were based in. Unwilling to hand over any such data, Kurbanov decided to bail on the case instead. Which meant the labels won a default judgement in their favour.

Which is why magistrate judge Theresa Buchanan last month spent some quality time considering what damages the labels should get for all the copyright infringement enabled by FLVTO and 2conv.

In their lawsuit, the labels identified 1618 specific copyrights infringed by FLVTO and 2conv. They then requested $50,000 in statutory damages per work for the actual infringement, plus another $1250 per work because Kurbanov's sites circumvent copyright protection measures put in place by YouTube, in violation of the US Digital Millennium Copyright Act.

Having considered that request from the labels, Buchanan basically decided that their claims were reasonable, and thus recommended that the court order Kurbanov to pay the music companies a neat $82,922,500 in damages.

But needless to say, Kurbanov's reps reckon Buchanan got it wrong. Because, they argue, while the labels may have won a summary judgement in their favour by default - because their client bailed on the case - they still need to demonstrate that their recordings were actually infringed by US users of FLVTO and 2conv in order to claim statutory damages.

"It was incumbent on plaintiffs to provide evidence to the court of actual instances of infringement by United States-based visitors to Mr Kurbanov's websites", the lawyers write in a formal response, "as statutory damages are premised on a certain amount being awarded to the plaintiffs for each infringement".

"Remarkably", they go on, "despite submitting to the court more than 450 pages worth of materials, plaintiffs failed entirely to provide any evidence of the one thing that is a prerequisite to any recovery: namely, proof of the existence of even a single improper download of plaintiffs' copyrighted materials within the United States".

"This is not mere hyperbole", they insist. "The plaintiffs produced no evidence whatsoever that even a single person in the United States ever utilised Mr Kurbanov's websites to improperly download one of their copyrighted songs".

"In her report and recommendation, the magistrate held improperly that plaintiffs did not need to prove any infringements of their works because such proof was presumed by virtue of her having ordered the default against Mr Kurbanov", they add.

That was an "improper" conclusion, they argue, because "the law on this point is exceedingly clear: regardless of the fact that the court defaulted Mr Kurbanov, plaintiffs were required to prove the facts that would entitle them to recover the damages sought".

"Here, they neither alleged, nor proved, the facts necessary for an award of either actual or statutory damages. As such, the court should reject the recommendation of the magistrate, find that plaintiffs have failed to make a showing of monetary damages and deny them recovery of the same".

Team Kurbanov also take issue with the size of the statutory damages recommended by Buchanan. Even if the court does ultimately decide statutory damages are due - they argue - $51,250 per work is way over the odds. Indeed, Kurbanov's reps previously said $200 per work would be more reasonable, and they are sticking with that argument.

The lawyers provide various reasons for setting much lower damages, including that Kurbanov is only liable for contributory infringement, not direct infringement, because he didn't himself download any of the labels' recordings, users of his websites did.

Another reason cited relates to an argument that has come up in another big legal battle between the US labels and a stream-ripping site - that being the Yout case - ie the argument that stream-ripping sites aren't actually circumventing any technical protection measures put in place by YouTube.

Kurbanov's sites make use of the open-source download manager youtube-dl. The legal status of that software - ie whether or not it actually circumvents any technical protection measures - has also been discussed elsewhere, mainly after the Recording Industry Association Of America tried to get it removed from Github in 2020. Some argue that youtube-dl - like Yout - doesn't actually do any circumventing.

Now, Kurbanov lost the opportunity to make similar arguments in relation to FLVTO and 2conv when he bailed on the litigation. However, his lawyers say, those arguments are still relevant when it comes to damages. "The operation of the websites – and their use of freely available open-source software – is still relevant to the court in its determination of the proper level of statutory damages to be awarded", they write.

"Here, given that even some industry experts say that the use of the youtube-dl software does not circumvent technological measures, and given that Mr Kurbanov did not himself use the software to download plaintiffs' songs (but rather visitors to his websites did), this court can find that Mr Kurbanov's infringement of plaintiffs' works was innocent in nature, meriting only the lowest amount of statutory damages, or $200 per work in suit".

We await to see if the court pays attention to any of this - or if it just rubber stamps Buchanan's $83 million damages proposal.

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Nevermind artwork lawsuit dismissed - but likely to be re-filed this month
A US judge last week dismissed the Nirvana baby lawsuit, although because of a missed deadline rather than any judicial opinion on the merits of the litigation itself. And Spencer Elden - the man who appeared, as a baby, on the cover of Nirvana's 'Nevermind' album back in 1991 - can still submit an amended complaint dealing with issues already raised by the defendants in the case.

Elden sued Nirvana, their label and other people involved in creating the 'Nevermind' artwork back in August. Claiming that Elden's guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so".

The defendants in the case formally responded last month, claiming that Elden's lawsuit was without merit. Among other things, the band et al argued that Elden himself had - for years - been blasé or actively positive about his baby photo appearing on the 'Nevermind' album artwork. Indeed, their legal filing stated, he "has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby'".

Aside from questioning the legal arguments in the lawsuit, the defendants also argued that Elden had left it too late to go legal because, with the specific laws they are accused of violating, there is a ten year statute of limitations. That doesn't mean Elden would have had to sue within ten years of the photograph being taken, but within ten years of becoming aware of the alleged pornographic use of the image or when he turned eighteen. Elden's eighteenth birthday was in 2009.

With all that in mind, the defendants asked the court to dismiss the lawsuit. The motion for dismissal was filed on 22 Dec and Team Elden had until 30 Dec to respond. No response was forthcoming, meaning that the motion for dismissal was granted and a scheduled hearing on 20 Jan to discuss the defendants' motion has been called off. However, that doesn't stop Elden from submitting an amended complaint.

In last week's ruling, the judge noted that the planned 20 Jan hearing date "required plaintiff to file his opposition to the motion no later than 30 Dec 2021. Plaintiff did not file any opposition to defendants' motion. Accordingly, the court will vacate the hearing date and grant defendants' motion".

However, the judge added that Elden was being granted "one last opportunity to amend his complaint. In preparing the second amended complaint, plaintiff shall carefully evaluate the contentions set forth in defendants' motion, including defendants' assertions that plaintiff's claims ... are time-barred".

Elden now has until 13 Jan to file his amended complaint. A legal rep confirmed to AFP last week that such a document would indeed be filed, adding that "we are confident that Spencer will be allowed to move forward with his case".

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BMG and KKR acquire John Legend catalogue
Turns out that BMG and KKR's rights acquiring joint venture acquired itself some John Legend rights last year. And why the hell not?

BMG and investment firm KKR - who previously collaborated on the launch of the current iteration of BMG back in 2008 - announced a new JV last March via which they planned to enter the 'let's grab some heritage artist catalogues' frenzy. A deal with ZZ Top was then announced last month.

The earlier deal with not-really-a-heritage-artist Legend, seemingly completed in September, was spotted by the Wall Street Journal in a regulatory filing. It covers rights and royalties stemming from songs written between 2004 and last year. Both KKR and BMG each took a 50% stake in the catalogue.

BMG already provided publishing administration services to Legend and - according to WSJ - has also secured a new deal with the musician in that domain too.

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Music Venue Trust encourages music fans to #golocal as live sector continues to navigate COVID
The Music Venue Trust has launched a new campaign encouraging music fans to enjoy live shows at their local grassroots venues, noting that those venues have an assortment of COVID safety measures in place and - by staying local - people can avoid the COVID risks associated with travel and large crowds.

MVT says: "Given the current data and the guidance from government, which continues to allow the staging of live music events, the #golocal campaign puts the emphasis on enjoying live music in a safe environment by urging music fans to visit local grassroots music venues, avoiding mass transport and large crowds of people".

"From the very beginning of this pandemic", it adds, "MVT has led the way in helping the grassroots music community provide safe environments to stage live music events and continues to prioritise the health and wellbeing of audiences, venue staff, artists, and support crew".

That work has included the organisation's Take A Test campaign, which encourages people to always take a lateral flow test before attending a gig, to confirm they are definitely not currently COVID positive.

Commenting on the latest campaign to support grassroots venues that continue to navigate all the COVID challenges, MVT CEO Mark Dayvd adds: "From day one of this crisis we have liaised directly with government and medical experts and have been at the heart of the discussions around how to stage responsible live music events and reopen every venue safely".

"We continue to offer full support and guidance to the grassroots music venue sector", he adds, "and with them have implemented numerous groundbreaking initiatives such as the Take A Test campaign to protect the health of audiences, artists, crew and venue staff, whose wellbeing has always been and remains our number one concern".

"It is clear to us, given the current data available to us, that the safest way to enjoy live music at present is to do so at a local level, avoiding mass transport and large crowds of people", he goes on. "We see this difficult and uncertain period as an opportunity to put the focus firmly back on local music venues and to encourage people to investigate the many amazing opportunities to safely experience live music within their own communities".

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Bauer stations launch show exploring intersection of classical and jazz
Bauer-owned radio stations Scala Radio and Jazz FM have launched a new collaborative show which explores the link between classical and jazz music. Scala Radio being focused on classical. And Jazz FM on, well, jazz. Funnily enough.

"To many, classical and jazz are worlds apart", the broadcaster reckons, "one is heard in grand halls, the other in some of the world's most intimate venues. But in this series Scala Radio's Jack Pepper and Jazz FM's China Moses will argue otherwise".

Pepper and Moses, Bauer adds, "will introduce each other to the music they love, and explore the grey areas, crossovers and curious links across the series' six episodes. Joining [them] on this journey are a collection of great musical minds that have straddled the jazz and classical divide, from Maria Schneider to Nigel Kennedy, who will delve deep into their careers and boundary blurring work".

The first edition of 'Jazz Meets Classical' aired last night, with future editions going live each Sunday at 8pm, and then being available on each station's listen-again platform.

The programme is the latest to be enabled by the Audio Content Fund, the UK government backed programme that provides funding to independent production companies so they can make "distinctive, public service radio content for broadcast on commercial and community radio".

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DEALS

Exceleration Music has announced a partnership with US indie SideOneDummy Records, which will see it invest in the label's back catalogue and take over all financial and operational activities. "I have had the pleasure of working, in various capacities, with SideOneDummy since not long after they launched", says Exceleration partner Amy Dietz. "To now have the opportunity to work with the SideOneDummy team on the next phase of the label's journey is a privilege".

Dice has partnered with the Newport Jazz Festival and Newport Folk Festival in the US to provide ticketing for both. "Newport Folk and Jazz Festivals have an unmatched legacy as two of the most celebrated music events in US history and it's an honour for Dice to be named their partner", says the ticketing firm's President Russ Tannen. "At Dice we love working with the most ambitious operators in the world, whether that's rising independent venues through to legendary festivals that continue to push the boundaries".

Satan's Fall have signed to SPV's Steamhammer label to release their third studio album later this year. "We are more than excited to start working with such a legendary record company as Steamhammer", say the band. "They understand what real heavy metal is all about, and it goes without saying that Satan's Fall fits in perfectly. Steamhammer has released so many great records from our favourite artists - it's a great honour to be part of this legacy".

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APPOINTMENTS

AEG Europe has announced that co-CEO of AEG Presents UK, Toby Leighton-Pope, has left the company to "pursue other interests". His now former counterpart Steve Homer remains in his role.

Bengi Ünsal has been named the new Director of the Institute Of Contemporary Arts in London, and is set to take up the role in March. She is currently Head Of Contemporary Music at the Southbank Centre. "I am incredibly proud to be joining one of the most iconic and progressive organisations for contemporary arts in the world, one that is such an inspiration to me and so many others", she says.

Warner Music has promoted Linda Walker to SVP Commercial, UK & Europe, following the departure last year of Derek Allen. "I'm excited to step up into this new role", she says. "The music industry is moving faster than ever and we have to be nimble to thrive. But at the same time, it still all comes down to putting out great music and convincing others it's as special as you know it is".

Sony Music's The Orchard has announced three new appointments in Africa. Mpumi Phillips joins as Director Of Distribution in its South Africa office, Ikechukwu Onuorah becomes Director for Nigeria, and Beth Achitsa is now Artist & Label Relations Manager in Kenya. "The Orchard's expansion into this musically rich continent will connect artists to fans all over the globe", says the company's VP Africa, Ben Oldfield. "Growing our presence with local leadership in these three key markets cements our long-term commitment to artists and labels in Africa, and ensures we have trusted leaders on the ground who truly appreciate, value and understand these varying cultures".

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RELEASES

Central Cee has released new single 'Retail Therapy'. His new mixtape, '23', is out on 25 Feb.

Alt-J have released new single 'Hard Drive Gold'. Their new album, 'The Dream', is out on 11 Feb.

James Morrison has released new single 'Don't Mess With Love'. The track appears on his new album of re-recorded greatest hits, which is out on 11 Feb.

Young T & Bugsey have released new single 'Blessings', featuring Chronixx. The duo's new mixtape, 'Truth Be Told', is out on 21 Jan.

Sasami has released new single 'Say It'. Her new album, 'Squeeze', is out on 25 Feb.

Ahead of the release of their debut album later this month, Yard Act have released new track 'Rich'.

FEMM have released new single 'Mental Health', taken from new album 'Tokyo Girls Anthem'.

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

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Library Of Congress unearths previously unseen footage of Rolling Stones' Altamont Free Concert
The US Library Of Congress has published newly discovered footage of the Rolling Stones' famous - and somewhat infamous - Altamont Free Concert in 1969.

Although silent, the 26 minute film shows various performances from the day, including Carlos Santana, Crosby Stills Nash & Young, The Flying Burrito Brothers and the Stones themselves, along with audience footage.

Attended by around 300,000 people, the event is best known for what went wrong, with tensions and violence growing throughout the day. The show culminated in the death of audience member Meredith Hunter, who was stabbed by a member of the Hell's Angels, who had been hired to provide security for the event.

Footage from the show has previously only been seen in 1970 documentary 'Gimme Shelter', and this newly discovered film presents images not previously available anywhere.

The Library Of Congress's Neely Tucker explains in a blog post that the film had been sitting undeveloped in its archives for nearly 20 years - after the Library acquired 200,000 reels of film from the the archives of Rick Prelinger in 2002. Work to properly catalogue that material has been ongoing ever since.

"Not long ago, a technician working on the Prelinger Collection came across two reels of silent 8mm reversal positive - a common home movie format", explains Tucker. "The handwritten note on the film leader read 'Stones In The Park', so that was the title he gave it for our inventory".

"When I saw that, I immediately thought that it could be a home movie of the 5 Jul 1969, Rolling Stones Hyde Park concert held in London a couple of days after the death of guitarist Brian Jones", he goes on. "But it could also be a copy of a documentary of the same name, which would make the discovery considerably less interesting".

"Regardless, I sent the reels up for 2K digitisation by our film preservation laboratory", he adds. "A couple of days later, I heard from some very excited colleagues that the scan wasn't the Hyde Park show. It was from the Altamont Speedway concert in California and it definitely wasn't footage from the 1970 documentary. Many people know the 'Gimme Shelter' documentary pretty well, but there's a lot more in this home movie".

Watch the footage here.

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