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Going live: The legalities of paid live streams

The Covid-19 lockdowns around the world have put an end to multiple big-name festivals this year, as well as concerts of all kinds, from huge artists to those playing local venues.

With the future of what a live event will look like in a post-lockdown world still unclear, musicians are turning to alternative methods to reach their audiences. Livestreaming is now an increasingly vital tool, enabling musicians to reach audiences in real time and in a format that most closely reflects live performance. It seems clear that in the near term, virtual concerts will become the new normal. Take One World: Together At Home as just one example of how streaming can be harnessed to deliver live entertainment on a global scale.

Livestreaming platforms make this possible. The technological and operational investment required to operate a stable multifunctional and global online livestreaming capability, at scale, is huge. It is not surprising that the most capable and technically attractive platforms are operated by major tech companies: Facebook, Google, Amazon, etc.

Some platforms have already collaborated with music industry players to support artists’ transition from venues to home. However, artists also need to be aware of how to effectively monetise their live streams, and the applicable rules and regulations that must be followed.

Live streamers are usually required to meet certain criteria, and artists and event organisers should become familiar with each livestreaming platform’s monetisation policies and how to access them. Artists must also check the platform’s terms and conditions, and remember they are responsible for all rights and clearances necessary to perform their music.

Artists can earn revenue by enabling ads placed before, after, or embedded within content. Advertisers typically pay on a cost-per-click or cost-per-view basis, so a live streamer will only be paid if a user clicks on the advert or watches it for a certain period of time. However, an artist should balance this with the risk of putting fans off for using too many.

Brands may also pay artists to produce promoted content or direct viewers to purchase a brand’s products by posting links or discount codes for particular sites, earning the streamer commission on any sales.

Artists need to be aware of how to effectively monetise their live streams, and the applicable rules and regulations that must be followed

In the UK, any advertising or promotions need to comply with the Consumer Protection from Unfair Trading Regulations (the ‘Regulations’) and the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (the ‘CAP Code’).

The Regulations provide protection to consumers against unfair practices. The CAP Code includes rules about how advertising should be recognisable, and other rules to prevent viewers being misled. If live streamers breach these, the Advertising Standards Agency can require the amendment or withdrawal of an ad, and there are other sanctions co-ordinated through CAP that can be employed in different circumstances.

Many streaming services make it easy for users to give donations to a streamer, and streamers may incentivise these by offering exclusive content. Artists should be aware that most platforms will take a cut. Subscriptions allow paying subscribers to access extra perks such as exclusive content. This is subject to streaming services’ policies and, as with donations, they are likely to take a cut on fees.

Services such as Patreon also allow patrons to directly fund a live streamer, or GoFundMe can finance a project in advance. Just as artists sell merchandise on tour, online store services can be used to sell designs. To ensure compliance with consumer law, streamers may elect to use existing sites such as Merch by Amazon. Certain livestreaming platforms also merchandise to be advertised. YouTube, for example, allows eligible channels to showcase their official branded merchandise on the channel’s page.

Livestreaming has opened up a way for artists to reach their audiences, and a potential revenue stream while live events cannot go ahead. Platforms are adapting in real time to a huge surge in demand while Covid-19 prevents a true live experience.

Considering the rules and regulations involved and, where applicable, seeking advice to ensure compliance with these, will be essential to prevent any regulator- or platform-imposed penalties affecting the artist’s ability to livestream.

 


Gregor Pryor is co-chair of the entertainment and media industry group at law firm Reed Smith.

Radiohead demand answers for fatal stage collapse

Last night saw Radiohead play their first Toronto show since the fatal accident that claimed the claimed the life of their drum technician Scott Johnson six years ago. During the second encore, the band called for answers and accountability over the 2012 incident.

“We wanted to do a show in Toronto, the stage collapsed, killing one of our colleagues and friends,” frontman Thom Yorke said to the audience.

“The people who should be held accountable are still not being held accountable in your city. The silence is fucking deafening.”

Whilst preparing for a show at Downsview Park in Toronto in June 2012, the roof of the stage collapsed, killing the 33 year-old from Doncaster and injuring three others. The following year, Ontario’s Ministry of Labour brought charges against Live Nation, Optex Staging and Services and stage engineer Domenic Cugliari for wrongdoing under the Occupational Health and Safety Act. All parties pleaded not guilty.

“The people who should be held accountable are still not being held accountable in your city.”

However, with three days remaining on the trial, judge Shaun Nakatsuru was appointed to the Ontario Superior Court of Justice, declaring a mistrial. The judge appointed to the case after Nakatsuru’s departure, Ann Nelson, ruled in favour of the defendant’s application to drop the case, citing their entitlement to a trial without unreasonable delays. Last year, the charges were stayed altogether.

Radiohead drummer Philip Selway recently discussed the lack of response from the Canadian justice system on BBC’s Newsnight. He said the court case had “broken down on a technicality,” with everyone involved having received “no real answers”.

Yorke’s passionate speech at last night’s gig at the Scotiabank Arena was followed by a moment of silence. It is reported that members of the crowd interrupted the silence only to shout “we’re sorry” and “we love you”.

 


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Vivendi’s Italian expansion blocked

Media regulator Agcom has put the brakes on Vivendi’s recent buying up of ticketing, live entertainment and broadcast assets in Italy, ordering the French conglomerate to reduce its stake in either Mediaset or Telecom Italia within the next 12 months.

Italian authorities began an investigation into Vivendi – the parent company of See Tickets, Digitick and Universal Music Group, among many others – in February after a complaint by Mediaset, in which Vivendi has a nearly 29% stake.

Mediaset, founded by former Italian prime minister Silvio Berlusconi, is known primarily as Italy’s largest commercial broadcaster, but also has a live entertainment ticketing arm, Taquilla Mediaset, closely linked with Ticketmaster.

Vivendi also has a 24% holding in Telecom Italia, one of the country’s biggest telecommunications companies.

“Vivendi reserves the right to take any appropriate legal action to protect its interests”

Agcom (Autorità per le Garanzie nelle Comunicazioni, Communications Authority) yesterday said the company now exerts excessive dominance over Italy’s entertainment and telecoms markets – a claim disputed by Vivendi, which has declared its intention to seek legal action over the ruling.

“Vivendi has always operated within Italian law, and specifically the Gasparri law regarding the protection of media pluralism from the creation of dominant positions. In particular, it is indisputable that Vivendi neither controls nor exercises a dominant influence on Mediaset, which is controlled on an exclusive basis by [the Berlusconis’ holding company] Fininvest, with a stake close to 40%.

“Vivendi reserves the right to take any appropriate legal action to protect its interests, including filing an appeal to the Agcom decision at the Regional Administrative Court (TAR) and to submit a formal complaint to the European Commission for the breach of EU law.

“Vivendi continues to be fully confident in the rule of law and is certain that finally its rights will be recognised.”

 


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‘They got Capone on taxes’: RoI probes touting

MPs in the Republic of Ireland yesterday spoke of the need for immediate regulation of the secondary ticketing market, following the launch of a public consultation by government ministers “in response to public concern at the resale of tickets for major entertainment and sporting events at a price often well in excess of their face value”.

The consultation, drafted by jobs and enterprise minister Mary Mitchell O’Connor, transport minister Shane Ross and minister of state Patrick O’Donovan, invites the views of “interested parties” – including consumers, artists and managers, promoters and primary and secondary ticketers – on “possible measures aimed at securing fairer access to tickets for consumers”.

However, several members of parliament, known locally as teachtaí dála (TD), questioned the need for a public consultation given the existence of similar investigations in other countries. Noel Rock – who last week announced he had drafted a piece of legislation, the Prohibition of Above-Cost Ticket Touting Bill 2016, which would criminalise the resale of tickets for more than face value – said in a debate in the Republic’s lower house, the Dáil Éireann, that “given the plurality of comprehensive reports that are available, and in light of the [fact] that these problems are fundamentally the same from country to country, it seems that the launch of a new consultation process is perhaps not necessary”.

Rock cited the Waterson report in the UK, described as “substantial and comprehensive”, and praised Belgium’s “recently introduced legislation on this matter” – resulting in the blocking of several secondary ticketing sites – “which was very effective”.

Stephen Donnelly TD said he “agree[s] with Deputy Rock with regards to consultation”. “I am not entirely sure that a lengthy period of consultation is required,” he told the Dáil. “What are the timelines for the consultation process? When will we be able to debate the findings on the floor of the house? What can be done by the government in the short term? We all know that consultation processes and follow-up legislative processes can take time. […]

“I would like the minister [O’Connor] to give us her thoughts on what she and her government colleagues can do now to send these companies a clear message in the short term that this sort of behaviour needs to stop.”

“Expert reviews on this issue in a number of countries have concluded that legislative regulation is unlikely to be effective. We cannot ignore these considerations in the clamour for action”

O’Connor, however, was unmoved, saying the issue must be subject to consultation to ensure any future legislation “will be effective”. She told the TDs: “I understand the reasons they and the public are anxious to see action on this issue, [but] if legislation is to be introduced to regulate ticket resale an established procedure must be followed. This includes the preparation of a regulatory impact analysis. In Ireland, as in other countries, public consultation is an integral part of the impact analysis process. It is relatively easy to enact legislation, but it is more difficult to ensure that legislation will be effective.

“Anyone who takes the time to read the consultation paper will see that the issues around ticket resale are neither simple not straightforward, as the Deputies have mentioned. The organisation of major events, and the sale or resale of tickets to those events, involves a number of parties with different interests. The record of legislative efforts to regulate ticket resale in other countries is mixed at best. Expert reviews on this issue in a number of countries, including the UK, have concluded that legislative regulation is not warranted or is unlikely to be effective. We cannot ignore these considerations in the clamour for action. My aim is to ensure whatever action is ultimately taken will make a material contribution to ensuring fairer access to tickets for consumers.”

She also suggested alternative courses of action, such as requiring promoters to offer a return service for unwanted tickets, “greater cooperation” from resale sites on rooting out fraudulent sellers and – somewhat missing the point – a “greater readiness on the part of ticket buyers to resell tickets at face value”.

Kerry TD Michael Healy-Rae, meanwhile – who shares Rock and Donnelly’s view that “people in Ireland are being exploited in the worst form when it comes to ticket touting” – presented a novel temporary solution pending the outcome of the consultation: going after touts for tax evasion.

“When the US authorities were unable to get Al Capone for murder, they got him for taxes,” he said. “Are those who are involved on a professional basis, or otherwise, in ticket touting in Ireland paying tax on their exorbitant profits? The U2 tickets that sold out in six minutes were being sold for more than €1,000 afterwards. Will those involved pay tax on their exorbitant profits?

“Everybody else in the country has to pay tax. […] I suggest that if we cannot get them in one way, we might be able to get them in another way.”

 


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Minister: No rise in sex attacks at Swedish fests

Despite multiple sexual assaults at two Swedish festivals last summer, the incidence of sexual harassment at live music events in Sweden is less frequent than it was two decades ago, interior minister Anders Ygeman has said.

Speaking yesterday at concert industry conference Sweden Live, Ygeman said: “Sexual molestation at festivals is, in my eyes, less common now than 20 years ago.”

The minister’s views were echoed by Kristina Ljungros, chairwoman of sex-education nonprofit RFSU, who said her organisation does “not believe that crimes have increased”. Ljungros, who joined Ygemen, FKP Scorpio’s Kajsa Apelqvist and We Are Stockholm’s Eve Widgren on a panel discussion on sexual harassment at concerts, added, however, that “it’s good we’re talking about it now” and that “we all have a responsibility” to prevent sexual assaults, reports SVT.

“Sexual molestation at festivals is, in my eyes, less common now than 20 years ago”

Widgren, meanwhile, said “sensational” media reporting has contributed to a sense that sexual assaults are on the rise in Sweden, even if that’s not the case.

More than 35 sex attacks were reported at the Putte i Parken festival in the first weekend of July, with a similar spate of assaults also affecting FKP Scorpio’s Bråvalla festival the same weekend.

FKP Scorpio chief executive Folkert Koopmans later clarified to IQ that of the five initial reports of rape at Bråvalla, two were withdrawn and three would be better described as sexual harassment. “Swedish women are encouraged to stand up and report any type of sexual harassment – much more so compared to most other countries,” he explained. “As a result we receive a high number of reported rapes and other incidents.”

 


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Playa del Carmen moves to ban EDM festivals

Civic leaders in Playa del Carmen, the Mexican coastal resort home to the BPM Festival, have spoken of their wish that “not one more” dance music event be held in the town following Monday’s deadly shooting.

Speaking at a press conference earlier this week, Cristina Torres Gómez, the mayoress of Solidaridad, of which Playa del Carmen is the municipal seat, said she would “no longer allow these type of events in Solidaridad”, preferring to focus instead on “another type of tourism for our municipality”.

Her position was supported by business leader María Elena Mata Pineda, president of the Business Coordinating Council (Consejo Coordinador Empresarial), who said: “We businessmen approve of this and ask the authorities to create a safe, clean destination for our families where we can live in peace and quiet. We are asking to now allow any more of these events.”

“We will no longer allow these type of events in Solidaridad”

Torres also announced that she had requested local venues to increase security in the aftermath of the attack, while the Solidaridad government would step up the police presence on its municipality’s roads.

Solidaridad’s move to evict its electronic dance music (EDM) events mirrors a similar decision by Buenos Aires in the aftermath of deaths at the Time Warp festival.

The Los Zetas cartel, one of Mexico’s most notorious criminal syndicates, has claimed responsibility for the shooting, which left four people dead. Local media outlet Semanario Playa News posted a picture of a sinister ‘narcoblanket’, signed by the cartel, which appears to take aim at the festival’s Canadian co-founder, Philip Pulitano, and a source quoted by CBC News alleges Pulitano “had the role of coordinating the terms of the festival with the cartel”.

“The organisers, who previously had a decent relationship with the drug cartel, ignored their demands”

The cartel reportedly “increased demands on BPM organisers this year,” reads the report by the Canadian state broadcaster. “But the organisers, who previously had a decent relationship with the drug cartel, ignored those demands, according to the source. ‘They can turn on you in a second,’ the source said.”

Miguel Angel Pech, attorney-general of the state of Quintana Roo, said on Tuesday that drug-related activity was the chief line of investigation for the shooting, with extortion also a possibility. Officials in Quintana Roo are also investigating whether the attack is linked to a shooting less than 24 hours later in Cancun, when gunmen opened fire on the state prosecutor’s office.

In addition to BPM, the EDM ban is also expected to affect Arena, an LGBT (lesbian, gay, bisexual and transgender) festival scheduled for the first week of February.

 


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Irish MP introduces anti-touting bill

Two months after the passing of a landmark piece of legislation criminalising ticket touting in Italy, an MP has introduced a similar bill – the Prohibition of Above-Cost Ticket Touting Bill 2016 – for consideration by the Oireachtas, the parliament of the Republic of Ireland.

The draft legislation, presented yesterday to the Oireachtas bills office by Noel Rock, the Teachta Dála (TD) for Dublin North-West, would, if passed, “render it unlawful for any unauthorised person to sell or offer for sale tickets for major sporting, musical or theatrical events for a price in excess of the officially designated price [face value]”.

The bill has won the backing of Wicklow and East Carlow TD Stephen Donnelly, who has separately contacted the Competition and Consumer Protection to ask for an “investigation into potentially illegal activity” by ticket touts.

The move to outlaw for-profit ticket resale comes amid controversy in Ireland over tickets for U2’s show at Dublin’s Croke Park next summer, which sold out in under six minutes and, inevitably, appeared on secondary sites shortly after.

“The government has to act swiftly to outlaw the reselling of tickets over face value”

“I have been inundated with people contacting me regarding examples of ticket touting following the sale of U2 concert tickets,” says Rock. “This will be one of the biggest concerts of the year and consumers are now being asked to pay a large figure – well over face value – to attend. It’s just not fair on true fans who couldn’t obtain a ticket…

“The government now has to act swiftly to outlaw the reselling of tickets over face value.”

Promoter Live Nation Global Touring announced this morning the U2 tour in question, The Joshua Tree Tour 2017, sold more than 1.1 million tickets in 24 hours, with sold-out dates across North America, Britain and continental Europe, including the tour’s entire European stadium run.

 


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