CMA concludes that competition issues are not creating challenges for music-makers in the streaming economy
The UK's Competition & Markets Authority has published the final report from its study of the streaming music market, concluding that challenges faced by artists and songwriters in the streaming economy are not the result of competition issues within the market place, and that therefore an intervention from the competition regulator is not appropriate.

Although, it says, it hopes that its detailed report on the sector can inform ongoing discussions about other possible measures that government could instigate to address concerns in the music-maker community.

The CMA market study was commissioned in response to the big inquiry by the UK Parliament's Digital, Culture, Media & Sport Select Committee into the economics of music streaming. It considered the impact of the streaming boom on both music consumers and music-makers.

Though, given that most people agree that music consumers have never had it so good - them now having access to 100 million tracks for £9.99 a month - there was more interest in the CMA's findings regarding how artists and songwriters interact with and benefit from the streaming market.

Commenting on its final report this morning, the CMA confirmed it had heard plenty of "concerns from creators - artists and songwriters - about how much they earn from streaming". However, it added, a key factor in that domain is the sheer quantity of music now available, meaning the issue is too much competition rather than too little.

"With an increasing number of artists, tracks and streams, the money from streaming is shared more widely - with those that have the highest number of streams earning the most", it went on.

And a really small number of artists account for a lot of the streams and therefore they and their labels get a lot of the money. "The CMA found that over 60% of streams were of music recorded by only the top 0.4% of artists", it noted.

While it is true that a small number of major players dominate both the music streaming sector and the record industry, the CMA concluded that "the concerns raised by artists are not being driven by the level of concentration of the recording market".

"Analysis found that neither record labels nor streaming services are likely to be making significant excess profits that could be shared with creators", it went on. "Consequently, the issues concerning creators would not be addressed by measures intended to improve competition, but instead would need other policy measures in order to be addressed".

And, it added, "some parts of the streaming market have improved for some creators in recent years, with the CMA finding a greater choice of deals with record labels available. Whilst individual deals can vary considerably, the report highlighted on average royalty rates in major deals with artists have increased steadily from 19.7% in 2012 to 23.3% in 2021".

Meanwhile, it stated, "for songwriters, the share of revenues going to publishing rights has increased significantly from 8% in 2008 to 15% in 2021".

The share of streaming income that flows to songs and songwriters was actually a key element of the CMA's study, given many in the songwriting community reckon they should be getting a much bigger cut, and that it's entirely competition issues that are stopping that from happening.

That is based on the theory that because the three majors - Sony, Universal and Warner - are major players in both recordings and songs, they can use their market power to keep the streaming income splits favouring the former over the latter.

They might want to do that because under record deals the label often gets to keep the majority of any income, whereas with publishing deals the songwriter always gets the majority.

However, the CMA's new report states: "[The] evidence is inconsistent with the argument that the majors have tacitly colluded to suppress the publishing share or that there is otherwise particularly weak competition to sign songwriters that is leading to a split in the allocation of music streaming revenues that favours recording rights over publishing rights".

"The majors having both a recording and a publishing business is also not necessarily problematic", it added. "For instance, if the majors did not have a publishing business they might have a stronger incentive to block increases in the 'publishing share' by refusing to accommodate such an increase through reducing the recording share since any losses to their recording revenues which occurred would not be mitigated by gains to their publishing revenues".

Therefore, while the CMA recognises the ongoing dispute regarding how streaming money is split between the recordings and the songs, the regulator is nevertheless convinced "competition policy is not therefore the right tool to reach an optimal split".

On that issue - and pretty much all the other issues raised by the music-maker community, including things like transparency - the CMA's report points to the other government-led work that was instigated following the Parliamentary inquiry, all of which is being overseen by the Intellectual Property Office. Which is to say, as far as the CMA is concerned, competition law can't help, but there might be an argument for copyright law intervening in some way.

"While the CMA understands the concerns from creators about the level of income many receive, the analysis in the study suggests it is unlikely that an intervention by the CMA would release additional money into the system to pay creators more", the regulator concluded earlier today.

"The study does however highlight that the issues raised by creators could be further considered by government and policymakers as part of their ongoing work following the DCMS Select Committee's inquiry into the economics of music streaming".

The CMA's decision to not intervene in the music streaming market is not surprising, given that was pretty much the conclusion of an interim report back in July.

However, the music-maker community will be hoping that at least some of the comments in final the CMA report will motivate record labels, music publishers, collecting societies and streaming services to be as proactive as possible within the IPO-led initiatives that are ongoing.

You can download the CMA's rather lengthy full report here - or the more punchy exec summary here.

For an overview of the IPO-led work on the economics of music streaming, check out this recent edition of CMU's Setlist podcast.

To get a full understanding of the wider economics of streaming conversation, why not sign up to the upcoming CMU webinar series The Digital Dollar Debates - click here for more information.

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Lots of comments on the CMA report into music streaming

CMA Interim CEO Sarah Cardell: "Streaming has transformed how music fans access vast catalogues of music, providing a valuable platform for artists to reach new listeners quickly, and at a price for consumers that has declined in real terms over the years".

"However, we heard from many artists and songwriters across the UK about how they struggle to make a decent living from these services. These are understandable concerns, but our findings show that these are not the result of ineffective competition - and intervention by the CMA would not release more money into the system that would help artists or songwriters".

"While this report marks the end of the CMA's market study, which addresses the concerns previously posed about competition, we also hope the detailed and evidence-based picture we have been able to build of this relatively new sector will provide a basis that can be used by policymakers to consider whether additional action is needed to help creators".

Featured Artists Coalition CEO David Martin and Music Managers Forum CEO Annabella Coldrick: "The CMA report today focuses on how music streaming has benefited consumers and does not find that a competition intervention would be beneficial. However, it acknowledges that other issues raised by artists, songwriters and managers, including fair remuneration and transparency, require a different kind of scalpel. We welcome the overriding conclusion that government and policymakers should be driving forward reform".

"This should put a renewed focus on the ongoing pan-industry work being led by the Intellectual Property Office, and ensure that this activity delivers tangible changes in areas such as improved remuneration - whether through ER, contract adjustment or rights reversion - better transparency and progress on song data to get the right people paid fairly and quickly".

"If these outcomes fail to materialise, then the MMF, FAC and other creator-led organisations will call on the government to intervene and fulfil their promise of legislative action".

Ivors Academy CEO Graham Daviess: "The CMA has asserted that it is the government's responsibility to introduce policy interventions to support music creators. While consumers have never had it so good the system is concentrating earnings to an unsustainable extent. Streaming benefits consumers and rewards few music creators".

"The creative industries are central to the UK's economic success and they rely on creators, but they are leaving the industry because of threats to live music, the disastrous impact of Brexit on touring and the cost of living crisis. We need action to fix streaming".

Record label trade group BPI: "We welcome the CMA's objective, evidence-based report which confirms that the streaming market is competitive - delivering fans accessible and affordable music and artists greater choice in an environment in which many more are succeeding and where artist and songwriter royalty rates have increased".

"As the most definitive analysis of these issues to date, this report will help inform the work that we and industry are already doing in partnership with government to further strengthen British music and ensure the UK remains competitive globally. The report reinforces our view that the most effective way to enable even more artists to have a sustainable career in music is for labels to keep investing in talent and grow the market".

Association Of Independent Music CEO Paul Pacifico: "While consumers have clearly benefited enormously from greater access to music at decreasing cost, we must take care to ensure music is not undervalued and that we balance that with the opportunity for more creators to benefit from a sustainable digital ecosystem".

"The independent sector has led the way in developing the innovative deal structures and business models that the CMA highlights as having been key in evolving music's response to digital disruption and we need to ensure any measures the government may consider do not harm those essential entrepreneurs and investors in creative careers".

"Going forward, we must continue to work together as an industry on transparency and data to maximise the opportunity for our industry that the streaming inquiry represents".

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Late Atlantic Records co-founder Ahmet Ertegun accused of sexual assault in new lawsuit
Warner Music is facing an explosive lawsuit in relation to allegations of sexual assault being made against the late record industry veteran and Atlantic Records co-founder Ahmet Ertegun. His accuser is utilising a new law in New York that allows alleged victims of sexual assault whose claims were previously barred by the statute of limitations to file new legal proceedings.

In the lawsuit, artist manager Jan Roeg alleges that Ertegun sexually abused and assaulted her multiple times, over many years from the early 1980s onwards, while she was working with his label - both as a talent scout and a manager with artists signed to the Warner-owned record company.

The first two alleged assaults occurred in 1983, first in Ertegun's office, and then at his New York home following a dinner attended by various music industry execs. "Days after this second attack", the lawsuit claims, "Mr Ertegun made it clear to Ms Roeg that she had to 'get to know' him in order to maintain her place (and that of her artists) at Atlantic".

"That is", it adds, "women who wanted to do business with Atlantic had to play along with Mr Ertegun's sexual desires, and could not rock the boat with a complaint or lawsuit. And Mr Ertegun now held the fate of Ms Roeg's artists, including the first one who was signed by the label, as well as her own career, in his hands".

"Mr Ertegun's abusive sexual conduct continued for years and even decades", Roeg's legal filing says, adding: "Ms Roeg frequently had to flee or storm out of Mr Ertegun's office due to his misconduct, and the disheveled state of various other women who left his office over the years also made it obvious that he was engaging in inappropriate sexual activity on Atlantic's premises".

The lawsuit targets both Ertegun's estate and Warner's Atlantic Records Group. The latter is included as a defendant because, Roeg claims, management at the label in the 1980s and 1990s were fully aware of Ertegun's conduct, but turned a blind eye to it.

"Atlantic's management knew about Mr Ertegun's conduct, and his obsessive sexual pursuit of Ms Roeg", the lawsuit goes on, "which was characterised by volcanic eruptions of anger in the office [and] was obvious to all at the label".

"Atlantic's top executives and other management had ample opportunities to observe Mr Ertegun's drunken, abusive conduct and hateful attitude towards women", it continues, "including in company meetings in which he would openly brag about and recount in detail sexually exploitative escapades he engaged in backstage at concerts and the like".

It also alleges that "Atlantic is known to have regularly paid money to women accusing Mr Ertegun of sexual misconduct, both before and after his abuse of Ms Roeg had begun".

"Atlantic, however, did not act to protect Ms Roeg or its other female employees, business partners, and other women who crossed paths with Mr Ertegun in the course of doing business with the label", it adds, "whether by reining in and disciplining Mr Ertegun himself, or putting in place training or other measures to prevent or impose consequences for misconduct such as sexual assaults and harassment".

Noting that the lawsuit has been filed in response to the new Adult Survivors Act going into force in New York state, the legal filing concludes: "Mr Ertegun died in 2006, and his estate's trusts and assets are managed by the trustees named in this action. Now, Mr Ertegun, through his estate and its trustees, and Atlantic Records, can be held accountable, as society better understands the trauma of sexual assault and abuse, and claims for such misconduct have been re-established under the New York Adult Survivors Act".

Responding to the lawsuit, a spokesperson for Warner Music told the LA Times: "These allegations date back nearly 40 years, to before WMG was a standalone company. We are speaking with people who were there at the time, taking into consideration that many key individuals are deceased or into their 80s and 90s".

While not commenting on any of the specific allegations against Ertegun, the spokesperson was nevertheless keen to stress that the corporate culture of the modern music business is very different to that of the 1980s and 1990s.

They added: "To ensure a safe, equitable, and inclusive working environment, we have a comprehensive code of conduct, and mandatory workplace training, to which all of our employees must adhere. We regularly evaluate how we can evolve our policies to ensure our work environment is free from discrimination and harassment".

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Judge declines to dismiss Epidemic Sound's lawsuit against Meta
A US judge has declined to dismiss the copyright infringement lawsuit filed by production music firm Epidemic Sound against Facebook and Instagram owner Meta.

Back in July, Epidemic - a production music set-up best known for providing music to online creators - filed a lawsuit against the Meta business, claiming that music from its libraries was being used on the social media firm's platforms without licence, including within the Facebook and Instagram audio clip libraries. It also claimed that Meta was not granting it full access to the Facebook and Instagram rights management tools, which would allow Epidemic to better manage and control the use of its music in videos uploaded to those social platforms.

Meta then sought to have the case dismissed, saying in a September legal filing that "the lack of specificity in Epidemic's complaint is striking". It added: "For all its bluster, Epidemic has failed to identify even a single allegedly infringing copy of any of its works on Meta's platforms. Such vague assertions and glaring omissions keep Meta in the dark and make it unreasonable and impractical (not to mention unfair) to require Meta to frame a responsive pleading".

However, judge Jacqueline Scott Corely has not accepted Meta's arguments for dismissal. Citing relevant legal precedent, she wrote yesterday that Epidemic's lawsuit "provides 'fair notice of what the claim is and the grounds upon which it rests', and plaintiff pleads 'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged'".

Meanwhile, she added, Meta's motion for dismissal "improperly relies on materials outside the complaint - such as pre-suit investigations and plaintiff's website information".

And that's no good at all, is it? Seemingly not. Because, with that in mind, Scott Corely knocked back Meta's motion for dismissal and put an initial case management conference in the diary for 12 Jan 2023.

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Warner sues make up brand Iconic over unlicensed music in social media videos
British make up company Iconic is the latest brand to be sued over its use of unlicensed music in its social media marketing. In a new lawsuit, Warner Music says that the company has used over 165 of its "most popular and valuable works" without permission.

Filed through the the Californian federal courts, the legal claim says that the beauty brand's posts on platforms including Instagram and TikTok used songs by Dua Lipa, Selena Gomez, Ariana Grande and more without licence, according to Law360. In particular, the tracks soundtracked videos created in partnership with influencers.

"While Iconic's social media 'commercials' have been instrumental to Iconic's success, neither defendants nor their influencer partners have sought permission or paid for the privilege to use the sound recordings and musical compositions that are featured in them", says Warner's lawsuit.

Justifying its decision to sue a British company in an America court, it adds that Iconic uses social media "to direct its infringing videos ... to consumers located in the United States". What's more, the brand should know or have "reason to know that California is a worldwide centre of commercially recorded and licensed music", so has no excuse for not licensing the music in its videos.

Describing the offending videos, the label says that they generally feature "individuals showcasing or demonstrating one or more of Iconic's cosmetics and skincare products" and that the music "typically run[s] the full length of the ... video".

Iconic is not the first brand to be sued over unlicensed music in social media posts. Some brands have, in the past, incorrectly assumed that music in videos posted to Instagram or TikTok might be covered by those platforms' own music licences. However, the Instagram and TikTok licences only ever cover user-generated content, not brand-made videos.

Energy drink company Bang has now been sued by all three major labels over its online videos, including its collaborations with influencers. Both Universal and Sony have won summary judgements in their favour regarding the unlicensed music in Bang's own videos, although the rulings on influencer-made content were less clear cut.

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Metallica announce new album 72 Seasons
Metallica have announced that they will release their twelfth studio album, '72 Seasons', next year, and have also released its first single, 'Lux Æterna'.

Speaking about the album title, frontman James Hetfield says: "72 seasons. The first eighteen years of our lives that form our true or false selves. The concept that we were told 'who we are' by our parents. A possible pigeonholing around what kind of personality we are".

"I think the most interesting part of this is the continued study of those core beliefs and how it affects our perception of the world today", he adds. "Much of our adult experience is reenactment or reaction to these childhood experiences. Prisoners of childhood or breaking free of those bondages we carry".

The band have also announced world tour dates from April next year all the way through to September 2024.

They will play two nights in ever city they visit, promising that each night of each pair will feature two completely different setlists. No repeats. If they play it on the first night, you won't hear it on the second. Even the opening acts will be different on both nights. None of those shows are in the UK though. Sorry about that.

The album is set for release on 14 Apr, arriving six whole years after their last LP, 2016's 'Hardwired… To Self-Destruct'. Watch the video for 'Lux Æterna' here.

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Cat Burns, Nia Archives and Flo make up BRITs Rising Star shortlist
The shortlist for the BRITs Rising Star 2023 award is out. And now I will tell you who is on it. You've got two solo artists, Cat Burns and Nia Archives, and girl group Flo.

"A BRITs Rising Star nomination was a major thing on my bucket list for me this year, so to have achieved that honestly means the world to me", says Cat Burns. "I'm super grateful for the year I've had and am so honoured to have been chosen!"

Nia Archives adds: "Words won't describe how I'm feeling about being nominated for the BRITs Rising Star. Growing up and watching [the BRITs] on TV, I really never thought it could happen to someone like me. I'm just so overwhelmed and happy right now".

And Flo all say together: "It's a dream come true to receive a BRIT nomination less than a year after dropping our first single. We all grew up watching the BRITs with our mums, and have been inspired by the girl groups and powerful female artists who have performed on that stage".

"We're grateful to everyone who has believed in our vision so far and can't wait to share more music with the world", they add. "Girl groups are back and we want to pave the way for more artists to achieve their dreams. We hope that this is the first of many BRIT nominations for Flo".

Formerly known as the Critics' Choice prize, the BRITs Rising Star is chosen by a panel of journalists, heads of music at radio and TV stations, songwriters, producers and live bookers. Eligible artists must not have had a top 20 Album or more than one top 20 single in the UK before 31 Oct.

The overall winner will be announced on 8 Dec.

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APPOINTMENTS

Sony Music Publishing has appointed Michèle Hamelink as its Managing Director for the Benelux region. "I'm THRILLED and honoured to take on this new role", she says. "I'm excited to take on this challenge with our great team and build upon the strengths and songwriter-first values that we have as a global company. It's a privilege to work with our incredible songwriters and I look forward to advancing their creative development and success both locally and internationally".

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LABELS & PUBLISHERS

The International Federation Of The Phonographic Industry has launched the Official MENA Chart, rounding up the week's most streamed tracks in in the Middle East and North Africa. It's the region's first ever official chart, and the first to top it is Nigerian artist Rema with 'Calm Down'.

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RELEASES

Stormzy has released the video for 'This Is What I Mean', the title track of his new album, which came out last week.

Gaz Coombes has released new single 'Long Live The Strange'. His new album, 'Turn The Car Around', is out on 13 Jan.

The Waeve - aka Graham Coxon and Rose Elinor Dougall - have released new single 'Kill Me Again'. Their eponymous debut album is out on 3 Feb.

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GIGS & TOURS

Sylvan Esso have announced shows at Vicar Street in Dublin on 4 Jul, and Electric Brixton in London on 6 Jul, as part of their first European tour for five years. Tickets go on general sale on Friday.

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

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Cardi B threatened with legal action over Marge Simpson Halloween costume
Cardi B has been threatened with legal action over her recreation of an image of Marge Simpson as part of a Halloween photoshoot. Not by the makers of 'The Simpsons', though, as you might be thinking. The lawsuit comes from Italian artist Alexsandro Palombo, whose own drawing of Marge Simpson was used as the reference for the Cardi B shot.

If you're already a bit confused, I apologise, I'm about to introduce several more layers to this.

Palombo created his image of Marge Simpson in 2013, showing the cartoon character wearing a bottom-revealing dress designed by Thierry Mugler. His drawing was in turn based on a photograph in which model Violetta Sanchez is seen wearing said dress on the catwalk in 1995.

Now the artist says that he is planning to launch a lawsuit against Cardi B over her photograph in which she recreates the Marge/Mugler mash up. The issue, he says, is that while she included his drawing in a collection of images shared alongside her picture on Instagram, she did not actually credit him - saying only in the caption that her photo was "Mugler inspired".

Palombo's original image was created as part of his Marge Simpson Style Icon series, first published by Vogue in 2013. The series, which also saw famous images of Marilyn Monroe, Madonna and Audrey Hepburn recreated by the cartoon character, was intended as a reflection on gender equality.

"Cardi B and her collaborators have used my artwork without any authorisation, debasing its original meaning and only to amplify their image with a clear commercial purpose that has nothing to do with that path of social awareness that has always characterised my works", says Palombo in a statement.

His lawyer, Claudio Volpi, adds: "Cardi B has illegitimately appropriated the work of Alexsandro Palombo for mere business purposes in defiance of the most elementary rules on copyright and Instagram policies, with the consequent serious risks, both of compensation and of discredit for her public image".

Palombo complained about the use of his image on Instagram the day it was first published by Cardi B. In an update last week, he said: "We wrote to Mrs Cardi B and collaborators how come that they never contacted us for authorisation to use the artwork and didn't mention or credit the artist, violating Meta policy about intellectual property rights. Still no answer".

"(Extra)ordinary people are welcome to use my artworks for personal and non-commercial purposes", he added. "To everyone else: Stop stealing [from] artists".

No lawsuit has yet been filed and Cardi B is still to respond.

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