IQ launches new digital subscription
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Virtually Live: ILMC 33 launches with Azoff keynote
The organisers of the International Live Music Conference today (25 November) launched ILMC 33, the 2021 edition of the conference and the first in an all-virtual format.
Without the physical confines of a conference space, the annual event – which typically welcomes 2,000 professionals annually – will programme an expanded schedule of panels, meetings, workshops and keynotes.
Also announced today is ILMC 2021’s first keynote interview, featuring legendary music executive Irving Azoff. Hosted by Ed Bicknell, The (Late) Breakfast Meeting with Irving Azoff sees Azoff join the raconteur and former Dire Straits manager to discuss his remarkable career in music, from managing Eagles and Jon Bon Jovi to running Ticketmaster and being inducted into the Rock & Roll Hall of Fame.
Given the unprecedented circumstances, next year’s ‘Virtually Live’ ILMC will be opening its doors to non-members for the first time, allowing a wider range of live music professionals to attend.
“It’s important that the whole business is able to come together at such a pivotal time for the industry’s recovery,” explains ILMC head Greg Parmley. “With that in mind, we’ve decided to open up ILMC to the wider live music family for the first time, ensuring as many delegates are possible are able to exchange ideas and benefit from each other’s expertise.”
“It’s important that the whole business is able to come together at such a pivotal time for the industry’s recovery”
ILMC 33 also includes a fully online version of the Arthur Awards, the live music industry’s Oscar equivalents, which feature several new award categories – including Unsung Heroes and Tour of the Decade, which will be voted for live on the night. The ILMC Production Meeting (IPM) and Green Events & Innovations Conference (GEI) will both precede ILMC on Tuesday 2 March.
Confirmed speakers for ILMC 2021 already include Tim Leiweke (Oak View Group), Bob Lefsetz (Lefsetz Letter), Emma Banks (CAA), Sam Kirby Yoh (UTA), Tony Goldring (WME), Tom Windish (Paradigm) and Phil Bowdery (Live Nation). The first conference sessions will be announced in the coming days.
In addition to three days of conference sessions, the digital ILMC platform will feature hosted networking lounges, speed meetings and virtual exhibition spaces, while a schedule of nighttime events also includes a series of livestream showcases from emerging artists.
Last year’s conference programme included keynotes from Peter Rudge and team Mumford & Sons, and guest speaker slots from executives including David Zedeck (UTA), Phil Rodriguez (Move Concerts), Roberta Medina (Rock in Rio), Ashish Hemrajani (BookMyShow), Detlef Kornett (DEAG), Maria May (CAA), Scott Mantell (ICM Partners) and Jim King (AEG Presents). The full 2021 agenda will be published in January.
Companies supporting ILMC 33 include Live Nation, Ticketmaster, CTS Eventim, Showsec and Tysers.
For more information, visit the new ILMC website, which invites the industry’s top gamers, avatars and cyberpunks to join us in the conference mainframe from 3 to 5 March 2021.
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ICM Partners wins Celine Dion legal battle
Major US agency ICM Partners has won a legal battle over unpaid commissions from a deal negotiated and procured for former client Celine Dion with AEG.
The superstar signed a $500 million multi-year touring and performing contract with AEG in 2017 but was dropped by her representative of over 30 years Rob Prinz (ICM partner and co-head of worldwide concerts) in 2019 after failing to pay commission.
ICM sued the singer to receive the unpaid funds and the company announced on Wednesday (18 November) that the California labour commissioner ruled in its favour, upholding the terms of the contract even after the representation has ended.
The ruling states: “Although the Omnibus Agreement (Dion’s agreement with AEG negotiated by ICM and Prinz) is valued at a staggering half a billion dollars, the labour commissioner has dealt with similar matters, albeit not in this monetary range.
“In similar fact patterns, we have consistently applied the rule stating. [A] talent agency is generally entitled to receive post-termination commissions for all employment secured by the agency prior to its termination.”
“[The ruling] unequivocally confirmed ICM’s and Rob Prinz’s right to commission an extremely lucrative deal”
The labour commissioner cited fellow cases, including ICM Partners v James Bates, Paradigm Talent Agency v Charles Carroll and Endeavor Agency v Alyssa Milano, in the decision.
“Further, [c]ommissions are owed post termination for monies negotiated by the agent during the term of the agreement and the artist cannot unilaterally determine there is no further obligation to pay for work already performed.”
Patricia Glaser, litigation counsel for ICM Partners says: “We are very pleased that the labour commissioner listened to the testimony of numerous witnesses over several days and reviewed a significant number of documents before issuing a very thoughtful 32-page opinion which unequivocally confirmed ICM’s and Rob Prinz’s right to commission an extremely lucrative deal which they were instrumental in negotiating and procuring.”
Rick Levy, general counsel, ICM Partners says: “This ruling leaves no doubt that Rob Prinz and ICM not only had a legally enforceable agreement to commission Ms Dion’s AEG deal, but that, throughout her brilliant career, Rob represented her in an exemplary manner, culminating in an unprecedented touring and residency contract.
“As the labour commissioner found, agents have every right to be paid for the work they do for their clients, especially where, as here, Rob’s more than two decades of hard work resulted in raising her compensation to dizzying new levels.”
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UTA sues insurer over $150m Covid-19 losses
United Talent Agency has filed a lawsuit against Chubb, its insurance company, for allegedly failing to cover any of the US$150 million worth of losses the agency says it has suffered during the coronavirus pandemic.
The complaint, filed in the Los Angeles County superior court on Friday (13 November), says its losses since March – which include the cancellations of tours by Guns N’ Roses, Post Malone, Pitbull and Toby Keith, as well as cancelled TV and film productions – should be covered under its business interruption policy with Chubb.
While UTA’s solicitor, Kirk Pasich, argues that financial losses due to the impact of Covid-19 constitute ‘damage’ under the policy, Chubb’s position is that business interruption policies only cover “direct physical loss or damage to property”.
According to Yahoo! Finance, this has been Chubb’s position since the beginning of the pandemic.
The agency is suing Chubb companies Vigilant and Federal for tortious interference and breach of contract.
“‘direct physical loss or damage to property’ extends to damage or loss caused by the presence of a hazardous substance”
In the complaint, Pasich says there is “no merit to Vigilant and Federal’s position that their policies do not insure the losses that UTA has suffered and is suffering,” nothing that: “Vigilant and Federal have known for decades that the phrase ‘direct physical loss or damage to property’ extends to damage or loss caused by the presence of a hazardous substance in the airspace inside a building or on property […] even if the property has not been physically altered.”
Chubb, for its part, clarified its position in an earnings call on 29 July (h/t Yahoo!), with CEO Evan Greenberg telling investors that business interruption policies are intended to cover damage due to events like a fire or a flood, not a disease.
“Plaintiff attorneys are attempting to torture or reverse engineer insurance contract language to conjure up business interruption coverage that for the most part simply doesn’t exist,” Greenberg said.
According to UTA, at least 13 employees, as well as five spouses and a number of dependents, have contracted Covid-19 this year.
Read IQ’s recent feature on the complexities of insuring events while Covid-19 is still a threat here.
Ticketmaster UK fined for 2018 data breach
The UK’s Information Commissioner’s Office (ICO) has fined Ticketmaster £1.25 million over a data breach that compromised the payment information of an estimated 9.4m customers in Europe, including 1.5m in the UK.
Concluding its investigation of a 2018 cyberattack which targeted Ticketmaster, TicketWeb and Get Me In! websites through a third-party customer support plug-in, the ICO found that Ticketmaster UK Ltd violated GDPR by failing to put in place “appropriate security measures” to protect its customers’ data.
ICO investigators found that, as a direct result of the Ticketmaster breach, 60,000 payment cards belonging to Barclays Bank customers had been subjected to known fraud. Another 6,000 cards were replaced by Monzo Bank after it suspected fraudulent use.
James Dipple-Johnstone, ICO deputy commissioner, says Ticketmaster failed to assess the risks of including the third-party product, a chatbot developed by Inbenta Technologies, on its payment page, as well implement appropriate security measures to negate those risks.
“Looking after their customers’ personal details safely should be at the top of organisations’ agenda”
The company also failed to identify the source of the fraudulent activity in a timely manner, having taken nine weeks from first being alerted to possible fraud (in February 2018) to finally monitoring the network traffic through its online payment page, according to the ICO.
“When customers handed over their personal details, they expected Ticketmaster to look after them,” says Dipple-Johnstone (pictured). “But they did not. Ticketmaster should have done more to reduce the risk of a cyberattack. Its failure to do so meant that millions of people in the UK and Europe were exposed to potential fraud.
“The £1.25 million fine we’ve issued today will send a message to other organisations that looking after their customers’ personal details safely should be at the top of their agenda.”
The Ibenta bot was removed from Ticketmaster’s websites in June 2018.
China to act on fake live stream viewer figures
Authorities in China plan to legislate to prevent organisers of livestream events from falsifying viewer figures, according to local media.
The move, spearheaded by the snappily named Office of Central Cyberspace Affairs Commission, is intended to regulate the growing livestreaming ecommerce sector, reports the state-owned China Global Television Network (CGTN).
CGTN describes livestreaming ecommerce as a “new business model combin[ing] entertainment with consumption” which is becoming increasingly popular in China. Like the teleshopping of old, the sector relies on big retail promotions to shift products en masse, such as the recent Double 11 shopping extravaganza, which generated a mind-boggling US$56 billion in sales.
“On such a shopping spree, popular livestreaming influencers” – young celebrities and models hired to be the faces of the shopping channels – “would normally hit their new record scores in viewers and sales,” the site explains.
“The number of viewers, comment interactions, and even sales can be falsified”
“But to which extent the [final] results are valid” is now in question, “as the industry gets competitive and mature.”
The commission’s proposals are open for public consultation until 28 November.
The drive for regulation comes after a Tencent News article revealed that the practice of buying traffic to inflate viewing figures is widespread among influencers.
“The number of viewers, comment interactions, and even sales can be falsified,” a source told Tencent.
The audience for live streams of all kinds has exploded in China this year, with Chinese consumers, like their counterparts elsewhere, consuming more concerts, video game streams and other events as the coronavirus hit. As of March, 150 million people had viewed a livestreamed concert, and more than half a billion any kind of live stream (a number likely to be even higher nearly eight months later).
Google sued in France for advertising resold tickets
A court in Paris has prohibited Google from selling keywords to advertisers, including Viagogo and StubHub, which (re)sell tickets without the promoter’s permission.
Ruling in favour of French live music association Prodiss, which brought the case against Google France and Google Ireland (Google’s European headquarters are in Dublin), the Judicial Court of Paris found Google liable for reputational damage to live entertainment professionals, noting that by accepting advertising from ticket resale sites, it may have given fans the false impression that rightsholders benefit from inflated secondary-market prices.
The Tribunal judiciaire additionally declared that Google had “undeniably participated” in facilitating unlawful resale “with full knowledge of the facts”.
Prodiss brought the lawsuit after noticing advertisements for tickets to shows by Rammstein, Drake and Metallica on sites including Viagogo.fr, StubHub.fr and Rocket-Ticket.com at, or near, the top of Google’s search results. In France, it is illegal to sell tickets without authorisation from the event organiser.
The court prohibited Google from allowing the purchase of ad keywords relating to the sale of tickets for shows in France
Google will have one month to act on the ruling, which will apply to all live shows taking place in France, including ticket retailers based elsewhere but selling tickets for French shows.
In the 15 October judgment, the court prohibited Google Ireland, which operates Google Ads (formerly AdWords), from allowing the purchase of advertising keywords relating to the sale of tickets for shows in France, unless the purchaser can prove that they have written authorisation from the rightsholder.
It also ordered Google to pay Prodiss €40,000 for in damages and an additional €20,000 under article 700 of the code of civil procedure (CPC).
In November, Google began accepting advertising from Viagogo once more after having previously banned the site from its AdWords platform.
Going live on the right side of the law
The Covid-19 pandemic has caused the cancellation or postponement of the majority of concerts and live events, leading to an unprecedented crisis in the events and live music industry. In fact, although the streaming of music through dedicated platforms and apps has boosted the music industry in recent years, a great deal of an artist’s revenue still comes from live performances.
However, even during the months of lockdown, music did not stop, as the absence of live music events has stimulated artists and fans to reinvent the live concert experience by creating and supporting new platforms to discover, listen and share music while social distancing. The music industry has thus recently embraced new ways to encourage fan engagement by introducing the public to what could take the stage as the new normal for live events for a while: remote concerts and tours.
In this scenario, new legal challenges arise. Some of the most relevant issues concern the copyright protection of the works involved in streamed concerts, as well as the arrangement of the relevant compensations.
Firstly, the artist’s right to perform their copyrighted work in front of a public (whether in person or remotely) stands as one of the exclusive rights that a copyright owner is entitled to, along with the right to reproduce and distribute their work. But what if the concert is played by different artists, each from a different location and playing their own part and then synchronised to the moving images of each player or to different images? This is what happened, for instance, in the #Italiasuona flashmob recently organised by Filarmonica della Scala. The outcome of the performance will likely be considered a new audio-visual derivative work including a new live execution.
Thus, those who wish to share these kind of works with the public must check whether their new or existing agreements cover all the new normal rights (eg right of performance, right to communicate to the public through online means new executions of the same work, synchronisation rights over the concerned work). Not to mention the authorisation to use the image rights of each performer and share the content by each performer to maximise the audience.
The most important concern is making sure the livestreaming platforms involved only use authorised content
Further, such rights might run the risk of being infringed: the most important concern will be to make sure the livestreaming platforms involved only use authorised content in each online event. In this regard, some online music platforms and social networks have already been provided with algorithms which are able to automatically detect copyrighted music. Further, making the same performances of an artist available on demand, and thus on a continuous basis, would also involve the need to establish licences from right-holders, as well as licences related to synchronisation, in case videos are involved during the streamed events.
The compensation of artists and staff operating in the live industry is another crucial point of change for the future, which also needs to be taken into account in agreements. In this regard, although a different experience from the usual live concert atmosphere could justify a lower price for each single ticket sold, the online-based approach of such events will undoubtedly profit from a much wider and more diverse reach.
In this new era, the compensation of artists and staff has to be scrutinised under a different – and more digital – tax approach.
In principle, the OECD Model Tax Convention emphasises the need to assess the existence of a close connection between the income and the performance. Such a connection will generally be found to exist where it cannot be reasonably considered that the income would have been derived in the absence of a performance of these activities. The right to receive a remuneration for musicians and artists is strictly connected to their exhibitions.
These issues are high on the agenda of international music managers and artists, as well as tax professionals and authorities.
In this new era, the compensation of artists and staff has to be scrutinised under a different, more digital, tax approach
A recent case involved the analysis of tax treatment of income received by two musicians (tax residents of Germany and Switzerland) engaged by an Italian foundation to perform at two concerts outside of Italy.
According to the agreement concluded between the foundation and the international artists, though remuneration was due in connection with the participation in the concerts outside of Italy, all preparatory activities, such as concert rehearsals, had to be carried in Italy and no specific remuneration – nor a reimbursement of the expenses – was due.
The Italian tax authorities’ view can be summarised as follows: the income paid to the musicians is treated as income from artistic performance carried out entirely outside the Italian territory, regardless of the days present in Italy for concert rehearsals. Therefore, such income is not subject to Italian taxation in the hands of the non-resident musicians. As a matter of fact, concert rehearsals carried out in Italy should not be treated as separate activities from the concert (they are an essential part of it). The conclusion appears consistent with the clarifications provided in the OECD commentary on article 17 of the aforementioned model.
What about the legal and tax issues of compensation deriving from the streaming platforms? These issues might need to be explored more in detail, in light of the new key role of the digital tools for the live industry, especially in the case of concerts involving renowned international artists. Possible means to be considered to assess compensation include earnings calculators, which are unofficial tools already used by influencers, providing earning potential guidelines by taking into account the number of interactions, followers and reach of the shared content.
Antonio Longo and Elena Varese are lawyers in the Milan office of DLA Piper, a global legal firm. This article originally appeared on the DLA Piper website.
This article forms part of IQ’s Covid-19 resource centre – a knowledge hub of essential guidance and updating resources for uncertain times.
CMA: Viagogo-StubHub merger anti-competitive
The Competition and Markets Authority (CMA) has found that the acquisition of StubHub by Viagogo will reduce competition in an “already very concentrated market”, throwing into doubt the fate of the already completed deal in the UK.
The UK competition watchdog opened an in-depth, ‘phase 2’ investigation of the merger in June after finding competition concerns during its initial probe.
According to the CMA’s provisional decision, with Viagogo and StubHub now the only two companies of “material size” in the British ticket resale sector, the merged outfit would have a market share of more than 90%.
The authority is concerned the merger could lead to higher fees for fans (both selling and buying), as well as “a lower quality of service and reduced innovation in the sector”.
Stuart McIntosh, chair of the CMA inquiry group, comments: “The evidence we’ve seen so far consistently points in the same direction: that Viagogo and StubHub have a market share of more than 90% combined and compete closely with each other. We are therefore concerned that their merger could lead to secondary ticketing customers facing higher fees and lower quality services.
The CMA has suggested the sale of StubHub by Viagogo in the UK
“We’re now inviting comments on our provisional findings and possible remedies.”
Among the options floated to address the CMA’s concerns is the sale, either partial or whole, of StubHub by Viagogo on a global basis, which would leave Viagogo as an effective monopoly in many markets.
Adam Webb, campaign manager for anti-ticket touting group FanFair Alliance, says: “FanFair Alliance welcomes today’s provisional findings. Though poorly timed and focused predominantly on the US market, Viagogo’s $4.05bn acquisition of StubHub raises acute competition concerns in the UK. We are pleased the CMA has recognised this.
“Ultimately, the merger would bestow a hugely controversial business monopoly status in this country, and risk unpicking some significant progress made over recent years to clean up the secondary ticketing market. We now look forward to submitting further views to the CMA about both their findings and potential remedies.”
A Viagogo spokesperson says: “Our intention remains to provide eventgoers in the UK with the best possible service, and whilst we disagree with the provisional conclusion that the deal would reduce competition, we look forward to working with the CMA to deliver a comprehensive solution which addresses their concerns.”
The deadline for comments on the CMA’s provisional findings is 5 November 2020. Written representations can be made to viagogo.StubHub@cma.gov.uk.
Industry urges action on touting via EU’s DSA
In response to the launch of the European Union’s Digital Services Act (DSA), the Face-Value European Alliance for Ticketing (FEAT) has published new recommendations for the future of online ticket resale.
The pan-European anti-touting group, established early last year, has issued further proposals to protect fans from “harmful” secondary ticketing and reduce illegal ticket resale across the EU, following the FEAT-backed ban on ticket bots introduced in April 2019.
Its recommendations are backed by a host of industry associations, including the Spanish Association of Music Promoters (APM), Germany’s BDKV, the Association for Electronic Music, Pearle* and the European Music Managers Alliance (EMMA), and broadly supported by Waterson report author Prof Michael Waterson.
The joint action – which follows more than 50 court cases and initiatives to try and curb secondary across 11 EU member states FEAT surveyed – comes after European commissioners approved initial proposals for the DSA, which aims to offer better protection for online consumers, late on Tuesday (20 October).
“EU action is necessary through to put control of tickets back into the hands of those putting on the shows”
FEAT’s recommendations, which are outlined in a position paper published today (22 Oct), include:
- Clear liability for online marketplaces, with rules stating when they are responsible for misleading information or guarantees, and illegal or delisted tickets
- Verification processes to vet sellers and their tickets, to prevent tickets being listed unlawfully
- More transparency measures for online marketplaces, with clear information about tickets (including face value) and the identity of sellers
- Better reporting and take-down for tickets not permitted for resale
- Oversight, enforcement and public performance rating from a European agency empowered to ensure the DSA’s provisions are implemented
- Rules must apply to marketplaces trading within the EU, but based outside
Austrian MEP Hannes Heide, who sits on the European parliament’s culture committee, is supporting the FEAT proposals. He comments: “Ticket resale platforms like Viagogo list and advertise mostly overpriced tickets for sporting or cultural events, usually being sold by commercial traders rather than consumers. They enable the sale of speculative tickets, which the seller does not even own, and sales that contravene the lawful terms and conditions of the ticket. This harms consumers, artists, event organisers and honest ticket sellers.
“In several countries, such as Austria, Viagogo has been legally obliged to disclose the identity of the ticket sellers, which enables defrauded consumers to take action against the seller. In addition, the platform must inform buyers of the ticket’s original face-value price and whether the tickets are personalised.
“While this is a partial victory, it is not enough. The platforms must comply with all requirements of EU law and the authorities of the member states must work together to ensure compliance.”
“European consumers are long overdue secondary ticketing marketplaces they can rely on”
Per Kviman, chair of EMMA, adds: “The growth in ticket resale across Europe through sites like Viagogo and StubHub has undermined the ability of artists to sell their tickets to fans at a fair price they determine. Instead, brokers/touts buy up large volumes of tickets to the most popular shows, falsely inflating prices and limiting access for consumers.
“EU action is necessary through the Digital Services Act to put control of tickets back into the hands of those putting on the shows and creating powers to take down illegally listed tickets. As European managers we back FEAT’s campaign.”
“So much has changed since the e-Commerce Directive came into effect in 2000, and European consumers are long overdue secondary ticketing marketplaces they can rely on,” comments FEAT campaign lead Katie O’Leary.
“That can only happen through better regulation, enforcement and a public performance rating which will put the onus on marketplaces to make sure the tickets that they’re promoting – and profiting from – are accurately depicted, real and guaranteed to gain fans entry into the event. We welcome the result of this week’s plenary vote, which is a step in the right direction.”