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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.

Aussie live industry: new festival legislation ‘unworkable’

A group of Australian industry organisations has penned an open letter to New South Wales (NSW) premier Gladys Berejiklian over the re-introduction of controversial festival licensing laws which were scrapped just a few weeks ago.

The Australian Festival Association, APRA AMCOS, Music NSW and Live Music Office signed the letter, which accuses politicians of a “total lack of respect for the live music industry” and demands a roundtable meeting to discuss “regulation and safety at music festivals”.

Under the newly drafted Music Festivals Bill 2019, it is an offence for any festival deemed ‘high risk’ by the NSW Independent Liquor and Gaming Authority (ILGA) to take place without drawing up a safety management plan for approval first. Failure to do so is punishable by a twelve-month prison sentence.

The proposed legislation was drawn up following the rejection of previous licensing laws by the NSW Legislative Council. At the time, the Australian Labor Party stated they would not support any legislation which included a listing of ‘extreme risk’ festivals.

“Labor, the Greens and the Shooters took away these regulations and left nothing in their place. This legislation will rectify that,” comments Berejiklian. “The situation is clear – music festivals identified as high risk under the former licensing system will continue to be high risk under this law.”

“Without serious consultation with our industry this proposed legislation will not work and we do not support it”

In response to Berejiklian’s decision, the collection of industry associations writes: “As you are aware, the live music industry has repeatedly expressed our strong desire to work collaboratively with your government on our shared commitment to safer music festivals.

“The draft bill tabled yesterday is unworkable. The industry was not consulted on the design of this draft legislation. In its current form, it appears to be based on the regulations disallowed by the NSW Upper House which were unworkable for all the reasons outlined by industry. Without serious consultation with our industry this proposed legislation will not work and we do not support it.

“Setting aside the total lack of respect for the live music industry which is the largest contributor by far to NSW live revenue and attendance,” continues the letter, “this draft bill also delivers huge uncertainty for all music festival operators and concert promoters in the lead up to the summer touring season.

“We believe it is imperative that you immediately convene an industry roundtable to develop a workable framework that supports our shared objectives.”

Berejiklian first implemented the regulations in February this year. The laws, which responded to several drug-related deaths at festivals in the region, have proved a point of contention between the live industry, opposition politicians and the government ever since.

On Wednesday (16 October), Berejiklian reiterated her opposition to pill testing at festivals, following a leaked report in which the deputy state coroner recommended the practice.

 


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NSW music festival regulations rejected

The New South Wales (NSW) Legislative Council has rejected regulations put forward by the NSW Government that imposed stricter licensing laws on music festivals.

The rejection means that festivals formerly placed in the government’s ‘higher risk’ category, and were most affected by the regulations, can revert back to their previous licensing laws.

NSW premier Gladys Berejiklian implemented the regulations, which placed more responsibility on festival organisers to ensure the safety of patrons and incurred many additional licensing and security costs, following a string of drug-related deaths at music festivals in the region.

The regulations were criticised by industry bodies including the Australian Music Festivals Association, Live Performance Australia, Apra Amcos and Music NSW, as well as leading industry figures such as Byron Bluesfest founder Peter Noble and Live Nation Australia chairman Michael Coppel.

“The government can now sit down with the industry for some constructive consultation on ways to improve patron safety at music festivals, including steps to reduce drug-related harm,” comments Evelyn Richardson, chief executive of Live Performance Australia.

“From the outset, we have repeatedly expressed our strong desire to work collaboratively with government on our shared commitment to safer festivals.

“Genuine collaboration with industry representatives who have decades of experience in running safe and successful festivals is the best way to promote the safety of festival patrons, while also ensuring NSW continues to enjoy the economic and cultural benefits from a dynamic and diverse music festival industry.”

“The government can now sit down with the industry for some constructive consultation on ways to improve patron safety at music festivals”

The government now has two months to propose a new set of regulations. Representatives from the Australian Labor party stated that they would support a regime that did not publish an ‘extreme risk’ list of festivals, that followed existing NSW Health guidelines for festival organisers and that ensured all medical providers at festivals are registered.

Politicians also urged the ‘immediate establishment’ of a regulatory roundtable, at which live music industry associations could consult with local councils.

“The opposition does not move to disallow these regulations lightly, but we simply believe that these regulations do not do the job as required to regulate music festivals and to keep kids safe across NSW,” stated shadow minister for roads, music and the night-time economy John Graham, speaking at the debate.

The minister also commented that no politicians met with the festivals at the time of implementing the regulations and that “no consultative body existed, or exists today”, adding that there is “no other industry that government would work with in that way.”

According to Labor minister Penny Sharpe, the “impact on venues and festivals” was not “accounted for” in the regulations. The minster urged the government to learn from its mistakes, referencing the recently scrapped Sydney lock-out laws.

As well as Byron Bay Bluesfest, other NSW festivals include Defqon.1, Days Like This, Transmission, Electric Gardens and Rolling Loud.

 


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SGAE fined €2.95m for anti-competitive practices

The Spanish competition regulator has fined national collection society SGAE €2.95 million for anti-competitive conduct, just days after the society’s expulsion from international authors’ rights association Cisac.

The national commission of markets and competition (Comisión nacional de los mercados y la competencia – CNMC) imposed the fine following the conclusion of a two-year investigation into actions undertaken by SGAE, known as the Sociedad General de Autores y Editores in Spanish.

The fine is the second that SGAE has received in the space of a few weeks. On 7 May, the Supreme Court approved of a €3.1m fine against the collection society, in a move lauded by Spanish promoters’ association the Asociación de Promotores Musicales (APM). The sanction was first proposed by the CNMC in 2014, in relation to SGAE’s “abusive” 10% concert tariffs.

The recent investigation into SGAE conduct finds evidence of “single and continued infringement” of free competition and European Union law.

The CNMC states that SGAE imposes contractual conditions to limit the freedom of its members. The society prevents members from attributing the management of only a part of their intellectual property rights by grouping rights into designated categories which cannot be managed separately. Members are also unable to revoke or partially withdraw the management of rights.

Through this practice, reports the watchdog, the society “has created obstacles to the free management of rights and the development of management entities other than the SGAE, making competition difficult.”

“[SGAE] has created obstacles to the free management of rights and the development of management entities other than the SGAE, making competition difficult.”

The watchdog also reports that the society has abused it position in relation to public broadcast rights, by bundling musical and audiovisual rights together and providing no itemised price breakdown for clients.

The joint sale, or bundling, occurs in the hospitality and catering sectors. As a result of the bundling, users wishing to offer musical content are obliged to acquire the audiovisual rights at the same time. CNMC states this impedes alternative offers from other management entities, given that SGAE is the only operator offering public reproduction and broadcast rights for musical content.

The investigation also finds that the lack of itemised price breakdown prevents users from determining the actual costs incurred by their use and therefore from comparing SGAE charges to offers from possible competitors.

Complaints from audiovisual authors’ rights group Dama (Derechos de Autor de Medios Audiovisuales, Entidad de Gestión) and collection society Unison sparked the investigation.

“At Unison we celebrate the decision of the Spanish regulator, which helps to guarantee free competition in the market of music rights management,” says Unison chief executive Jordi Puy.

The companies involved have two months to appeal the resolution through the national court.

The fine comes at a time of turbulence for the Spanish society. Cisac expelled SGAE as a member on Thursday 30 May for failing to implement reform. SGAE has been embroiled in controversy surrounding a scandal known as ‘the wheel’ (la rueda) since 2017.

 


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Cisac expels controversial Spanish member

The International Confederation of Societies of Authors and Composers (Cisac) has voted to expel Spanish society SGAE for a one-year period, following the society’s failure to convince the body of its “commitment to reform”.

The decision to expel SGAE, known as the Sociedad General de Autores y Editores, was made at Cisac’s annual assembly in Tokyo. The expulsion follows Cisac’s resolution to undertake a sanctions process against SGAE in December, “in view of the society’s breaches of Cisac rules”.

The expulsion is set to last for one year but “can be adjusted or lifted at any time”, provided that the Cisac board of directors concludes that SGAE has made sufficient progress towards implementing its requirements. Cisac recommended a series of changes to its rogue Spanish member following an in-depth investigation which concluded in May last year.

“Today’s vote to proceed with the sanction of a one-year expulsion follows an in-depth analysis of recent reforms set in motion by SGAE’s new President, Ms Pilar Jurado,” reads a Cisac statement.

“Further important technical work and changes are needed and expected by CISAC to ensure SGAE’s compliance with the Confederation’s professional rules”

“While a number of welcome changes have been proposed, they have not yet been approved by the SGAE General Assembly. Further important technical work and changes are needed and expected by CISAC to ensure SGAE’s compliance with the Confederation’s professional rules for member societies.”

SGAE appointed Spanish soprano singer Pilar Jurado as president in February following a vote of no confidence against former chief José Ángel Hevia, who held the position for just three months.

Jurado states that “Cisac is giving SGAE the opportunity to decide its own future”, and called on members to support her proposed reforms in the General Assembly in order for the society “to leave this situation behind us”.

Earlier this week, minister of culture José Guirao demanded SGAE produce a detailed outline of the steps it would take to comply with regulations. Failure to do so would result in intervention from the court.

SGAE has been at the centre of a scandal known as the wheel, or ‘la rueda’, for a number of years. The scam, which saw SGAE members and TV execs create “low-quality music” to broadcast on late-night TV, allegedly brought in several millions in performance royalties over the years.

 


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New late-night trading law to boost Sydney nightlife

Sydney City Council has endorsed changes to planning controls for late-night trading, extending opening hours for live music venues and allowing 24-hour trading in the city’s busiest districts.

The updated Draft Sydney Development Control Plan – Late Night Trading 2018 (Draft DCP) has been informed by a resident and business survey, in which over 10,000 people called for increased trading hours and more late-night activity.

The changes include an increase in opening hours until 2 a.m. for “low impact venues” in local centres and the introduction of an incentive system for venues to host live performances, awarding a bonus hour of trading to a venue for every night of live performance it programs.

Venues will need to apply for extra trading hours through a development application process and will be subject to trial periods to ensure they are well-managed and work in conjunction with the local community.

The council also plans to turn part of Sydney’s Alexandria industrial estate into an arts, entertainment and cultural hub.

“I hope these changes encourage the NSW Government to reconsider the lockout laws and help Sydney regain its status as one of the world’s premier late night destinations”

However, the changes will not override the controversial lockout laws imposed by the New South Wales government on many live music venues. The laws require venues, bars and nightclubs in Sydney’s central business district and Kings Cross area to lock their doors at 2 a.m. and stop serving drinks at 3.30 a.m.

“It’s time for Sydney to become a 24-hour city and we’ve now given businesses the opportunity to open around the clock,” says mayor Clover Moore.

“The City of Sydney is doing its part,” adds Moore. “I hope these changes encourage the NSW Government to reconsider the lockout laws and help Sydney regain its status as one of the world’s premier late night destinations.”

The new late-night development control plan is the result of work by mayor Moore, councillors Jess Miller and Jess Scully and the Nightlife and Creative Sector Advisory Panel.

 


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MMF report: licensing short changes songwriters

The UK’s Music Managers Forum has released a new song royalties guide, highlighting “global licensing inefficiencies” and calling for greater transparency around royalty chains and rights ownership.

Published today at the Great Escape, the new guide, produced by CMU Insights, lifts the lid on how songwriters’ repertoire is licensed to digital music services and how payment systems can reduce the royalties that creators receive.

The report states that while featured artists can be paid royalties within weeks of their track being streamed – especially if they self-release via a DIY distribution platform – those who write the track sometimes wait years before receiving their share.

The MMF calls for action to reform royalty chains, in which global-facing digital music services are licensed on a territorial basis and revenues flow between several parties, causing “delays and deductions” to royalty payments.

Although the percentage of income allocated to the song copyright in streaming is often double that allocated on a CD sale, the report finds that problems on the royalty chains mean songwriters do not benefit from this.

Research shows that problems increase as listening goes global, especially beyond Europe.

“Streaming should be boosting songwriters’ incomes”

MMF draws six key recommendations from the report, urging greater transparency around royalty chains, the reduction of links in the global licensing chain, a nine-month limit on payments post-streaming, the disclosure of any disputes and the reform of redistribution practice.

MMF also encourages songwriters, managers and accountants to push publishers and collecting society partners to address licensing inefficiencies.

“Streaming should be boosting songwriters’ incomes, instead MMF research reveals much of their money is subject to unnecessary data disputes, deductions and delays,” says MMF chief executive Annabella Coldrick.

“Long and complex royalty chains need to be simplified and shortened so more of the money gets back to the creator of the music. Digital licensing needs to be fit for purpose.”

The report forms part of MMF’s Dissecting The Digital Dollar, a series of publications helping artists and managers better understand the streaming business.

MMF membership grew 25% in 2018. The organisation recently made two new appointments to its team, hiring its first industry relations and events manager.

 


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Fans criticise evacuation of NSW Wine Machine event

Attendees of Wine Machine, an 11,000-capacity live music and wine festival in New South Wales (NSW), have criticised festival organisers following the event’s cancellation and evacuation due to severe lightning storms.

Organisers evacuated the festival site after an electrical storm hit Australia’s Hunter Valley, where the event was held. The cancellation occurred before festival headliner Hot Dub Time Machine had performed.

Festivalgoers have since criticised the way in which organisers handled the severe weather conditions, citing aggression from security staff and a disregard for safety. Fans objected to being “shoved out on to roads” and prevented from finding shelter on site.

“The safety of all patrons, artists and staff is of absolute priority,” wrote the Wine Machine organisers in a statement.

“The Hunter Valley last night experienced an extreme weather system causing an initial show stop and eventual evacuation of the event. This sucked for every single person on site,” read the festival’s statement, adding that “evacuations of this nature are never pleasant.”

Organisers invited attendees to provide email feedback on how police and security staff handled the evacuation.

Fans also criticised Wine Machine for its overpriced food and drink, poor sound system and excessive queues. Some attendees compared the event to Fyre Festival, while others suggested it be re-named “Line Machine” due to the long queues.

“The safety of all patrons, artists and staff is of absolute priority”

Festival organisers addressed the complaints, saying that “due to the current climate in NSW, severe licensing conditions were placed upon the event limiting drinks to two per person causing unacceptable congestion at the bars.”

Music festivals across NSW are struggling to adapt to the government’s new licensing regulations, which place events under much closer scrutiny and require many additional licensing and security costs.

The Wine Machine organisers also cited “staffing issues” for external bar operator Prime Collective. The bar supplier said it takes “full responsibility”, explaining that “two of our staffing mini-buses carrying 32 staff were reportedly involved in an incident whilst en route from Sydney, resulting in bars being under staffed.”

Wine Machine headliner and founder Hot Dub Time Machine has announced two free shows, the first on April 11 at Sydney’s Enmore Theatre (2,500-cap.) and the second on April 12 at the Newcastle Exhibition Centre (7,528-cap.), to make up for the missed set at the festival.

“Wine Machine and I both appreciate all the support over the years, so we wanted to make it up to you with this small token of our appreciation,” said the DJ.

Wine Machine is held in six locations across Australia, including the Yarra Valley (Victoria), Swan Valley (Western Australia) and Canberra’s Lake George winery.

 


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Music festivals hit back at NSW government

A coalition of music festival operators and promoters are taking the New South Wales government to court over new licensing regulations.

The organisers of Lost Paradise and Days Like This festivals are among those taking legal action against premier Gladys Berejiklian and her government. Both festivals feature on the list of 14 “higher risk” festivals released by the authorities earlier this week.

Festivals placed in the highest risk category are set to be the most affected by the government’s new regulations, which incur significant licensing and security costs. “Higher risk” events must supply a safety management plan in order to receive a license from the independent liquor and gaming authority.

Other companies involved in the collective legal action include Division agency, touring agency and marketing company, Novel, and event promotion company, Finely Tuned.

The group issued a statement, calling the decision to classify their festivals as higher risk “misguided and unwarranted” and the criteria used to do so “flawed”.

“It is a ‘knee-jerk’ reaction from the state that has caused severe damage to the festivals, our hard-working staff, and the hundreds of thousands of responsible attendees. We are disappointed that we were not properly consulted by the state prior to their making this damaging announcement,” reads the statement.

Days Like This spokesperson Jason Ayoubi adds that he is “perplexed and astounded” that the festival appears on the list of higher risk events.

“There was a real opportunity here for the NSW government to consult with an industry that generates over AUS$1.8 billion a year to come up with ways we could potentially improve safety at festivals,” says Ayoubi. “Instead they have chosen to vilify 14 individual festivals without any discussion.”

“It is a ‘knee-jerk’ reaction from the state that has caused severe damage to the festivals, our hard-working staff, and the hundreds of thousands of responsible attendees”

The founder of Sydney-based St Jerome’s Laneway festival, Danny Rogers, has also threatened to take legal action, stating it is “preposterous” that his event should appear on the list.

“It has the potential to cause untold brand and reputational damage and the festival is considering its legal position in relation to this,” Rogers announced to Australian radio station Triple J on Tuesday.

Another festival featuring on the “higher risk” list, Up Down, responded by sending the NSW premier a formal invitation to the festival.

“Did you hear? UP DOWN is on the festival ‘naughty list’ and we haven’t even had a chance to party yet!” reads a post on the festival’s facebook page. “In honour of making Premier Gladys B’s’ infamous list, we’re renaming our hugely popular ‘buy four get one free’ ticket offer to the ‘Gladys’ Party Pack’.”

The government continues to defend the new licensing regulations, which were implemented following a series of suspected drug-related deaths at festivals in the state.

“Most operators, including operators of higher risk festivals, are committed to safety and work hard to do the right thing – now they will have access to more expert advice and support to help them run safer events,” a government spokesperson told The Music Network.

Industry bodies including the Australian Festival Association, Live Performance Australia and Music NSW, as well as leading figures such as Byron Bluesfest founder Peter Noble, and Live Nation Australia chairman Michael Coppel have criticised the measures.

NSW government names “higher risk” music festivals

 


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NSW government names “higher risk” music festivals

The government of New South Wales has released a list of 14 festivals that will be affected by controversial new licensing regulations, which come into force on Friday 1 March.

Music festivals including Electric Gardens, St Jerome’s Laneway festival, FOMO and Lost Paradise have received the highest risk category from the NSW government. The events are required to supply a safety management plan in order to receive a license from the independent liquor and gaming authority.

Any event that has reported a drug-related death or illness in the past three years has automatically been included on the “higher risk” list.

NSW minister for liquor, gaming and racing Paul Toole says that festivals that successfully improve their safety practices will be removed from the list.

“This does not mean that an event is not going to take place,” comments Toole, “but they [the listed events] will need to provide some clarity for the safety management plans in relation to how they’re going to be safe.”

The NSW government introduced new licensing regulations for music festivals following a string of suspected drug-related deaths at festivals in the state. The regulations place more responsibility on festival organisers to ensure the safety of patrons and incur many additional licensing and security costs.

Music industry professionals and the Australian Music Association (AFA) have expressed concerns that festivals will be forced to cancel events, or relocate outside the state, due to the extra costs levied under the regulations.

“The festival sector is saying this: they are worried that up to a third of festivals could leave New South Wales if we don’t get this right”

“The festival sector is saying this: they are worried that up to a third of festivals could leave New South Wales if we don’t get this right,” says NSW shadow minister for music and night time economy, John Graham.

Earlier this month, the founder of Byron Bay Bluesfest, Peter Noble, spoke out against the regulations that “will decimate our industry,” following Bluesfest’s listing as “high risk”. Noble threatened to move the famous festival out of the state if revisions were not made.

“Will the last festival to leave NSW please turn out the light of culture in this soon to be barren state?”,  Noble asked in an open letter.

So far, NSW festivals including Psyfari and Mountain Sounds have cancelled their events, citing “impossible” licensing and security costs imposed by the new policy. Mountain Sounds has gone into liquidation following the cancellation, after five years in operation.

Fans, musicians and festival operators gathered together in Sydney’s Hyde Park on Thursday evening for the Don’t Kill Live Music rally, to protest against the new laws.

“This is still a mess,” says shadow minister Graham. “Many of the details about how festivals will be assessed for risk are missing, many of the guidelines sitting behind these regulations are still not there, and we’re a week away from the government implementing this.”

 

The full list of affected festivals are below:

Days Like This – Victoria Park, Camperdown, 2019

Transmission – Sydney Showground, 2019

Up Down – Newcastle Foreshore, Newcastle, 2019

Defqon.1 – Sydney International Regatta Centre, 2019

Subsonic – Riverwood Downs, Monkerai, 2019

This That – Wickham Park, Newcastle, 2019

Knockout Games of Destiny – Sydney Showground, 2019

Lost Paradise – Glenworth Valley, 2019

FOMO – Parramatta Park, 2020

Electric Gardens – Centennial Park, 2020

HTID – Sydney Showground, 2020

Rolling Loud – Sydney Showground, 2020

St Jerome’s Laneway – Callan Park, Rozelle, 2020

Ultra – Parramatta Park, 2020

 


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