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Slacker is pleading with a judge to overturn his recent ruling requiring the streamer to pony up $10 million in unpaid royalties, arguing it will cause the company economic ruin. But SoundExchange says it is merely the company’s “latest attempt to shirk their obligations.”
The two have been battling in court since June over allegations that Slacker’s parent LiveOne — formerly LiveXLive — owes millions to artists and labels. Earlier this month, SoundExchange demanded — and quickly won — a ruling from Judge André Birotte Jr. that LiveOne must pay up the full $9,765,396 in unpaid royalties.
Faced with that massive judgment, Slacker now says that SoundExchange’s demand for full payment was an unfair tactic and must be overturned — or risk permanently harming its financials: “This economic damage this will cause LiveOne will be unsustainable for this small company.”
But SoundExchange is unimpressed. In a response, the company says that LiveOne has “steadfastly” avoided paying for music for years, and that harsh measures are “necessary to protect performing artists.”
“The court should deny defendants’ latest attempt to shirk their obligations with the promise that next time will be different,” SoundExchange’s lawyers wrote.
“Refusing To Pay”
SoundExchange, which collects performance royalties for sound recording copyrights, sued LiveOne in June, claiming the company had stopped paying artists and labels way back in 2017. And it claimed that a subsequent audit revealed it had been underpaying for years before that.
Court records show the two sides entered into the repayment plan in 2020, which gave Slacker two years to pay its debts. But in the June lawsuit, the SoundExchange claimed that Slacker had quickly failed to live up to the terms of the agreement.
“By refusing to pay royalties for the use of protected sound recordings, Slacker and LiveOne have directly harmed creators over the years,” SoundExchange president and CEO Michael Huppe said at the time. “Today, SoundExchange is taking a stand through necessary legal action to protect the value of music and ensure creators are compensated fairly for their work.”
Just a few months into the litigation, SoundExchange played an unusual legal trump card. On Oct. 12, the group invoked a pre-signed judgment, which had been inked by execs at Slacker back in 2020 as part of the repayment plan. Under the terms of that earlier deal, if Slacker ever defaulted again, its executives agreed that a judge should enter a so-called judgment against the company for the full sum owed.
On Oct. 13, Judge Birotte Jr. did exactly that, ordering the Slacker to pay $9,765,396, which covered both unpaid royalties and late fees. He also permanently barred the company from using the so-called statutory license, an important federal provision that makes copyright licenses for recorded music automatically available to internet radio companies like Slacker and Pandora at a fixed price.
“Economic Damage”
Faced with that huge debt, LiveOne responded last week with a motion seeking to “set aside the judgment” and asking the judge order the two companies into settlement talks – a move they say will allow them to reach “a fair payment schedule.”
LiveOne’s lawyers said they had been engaged in “ongoing and fruitful negotiations” for a new repayment plan when SoundExchange had suddenly invoked the pre-signed consent judgment. They argued the move came only because LiveOne did not agree to “a complete acceptance” of SoundExchange’s “last and final” settlement offer.
More startlingly, LiveOne’s lawyers said SoundExchange’s big judgment had quickly caused other creditors to call in other debts owed, threatening “economic damage” to the company that would be “unsustainable.”
“Plaintiff’s surreptitious request for entry of judgment has triggered LiveOne’s default on two substantial senior secured notes which are secured by all of LiveOne’s and their subsidiaries assets,” LiveOne’s lawyers wrote. “If LiveOne does not promptly discharge SoundExchange’s default judgment, the secured creditors will accelerate the loans and call for immediate repayment of principal and unpaid interest.”
A rep for LiveOne did not immediately return a request for comment on the filing or for elaboration on its claims about the company’s finances.
“Long Enough”
In a new filing this week, SoundExchange offered no apologies for playing hardball with LiveOne. It said it had spent years “indulging” the company’s “many excuses for non-payment,” and that it had simply become time for the streamer to be legally forced to pay up.
“Five years is long enough,” the group wrote. “SoundExchange has no obligation to negotiate ad infinitum with defendants, who have demonstrated at every opportunity that they will leverage the creativity of others without compensation.”
SoundExchange’s lawyers said the group had been “initially amenable” to working out another deal, but that their patience quickly ran out: “Facing stalled settlement negotiations and an apparent unwillingness to abide by their contractual, statutory, or judicial obligations, that willingness had limits.”
As for LiveOne’s warnings that such a ruling might destroy the company, SoundExchange was skeptical. The group’s lawyers pointed out that LiveOne had missed key deadlines in the case, and had waited months to hire litigation attorneys to deal with the lawsuit.
“Defendants’ contention that the judgment poses an existential threat to their business is difficult to square with their lackadaisical approach to finding counsel and subsequent non-adherence to the court’s deadlines,” they wrote.
And if things really are as bad LiveOne’s attorneys claim, SoundExchange said it’s all the more reason for a final judgment to be entered against the company.
“Every hour defendants divert consumers who might otherwise use a different, royalty-paying digital music streaming service, thereby depriving rightsholders of royalties to which they are entitled,” the group wrote. “If Defendants’ dire financial situation is to be believed, artists may never see those royalties.”
This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between. This week: Cardi B avoids millions in damages by winning her trial over a sexually-explicit album cover, Jay-Z files a lawsuit to escape his Cognac partnership with Bacardi, Miley Cyrus quickly settles a case over an Instagram photo of herself, and much more.
THE BIG STORY: Cardi B Wins Trial Over ‘Raunchy’ Album Cover
It was all over pretty quick.After nearly five years of litigation, it took just four days of trial and 90 minutes of deliberation for a jury to clear Cardi B of wrongdoing in a lawsuit filed by Kevin Brophy, a California dad whose back tattoos were unwittingly photoshopped onto a “raunchy” Cardi album cover.Brophy sued in 2017 for millions in damages, claiming he was “devastated, humiliated and embarrassed” by the cover of her 2016 mixtape Gangsta Bitch Music Vol. 1. The image featured Cardi staring directly into the camera with her legs spread wide, holding a man’s head while he appears to perform oral sex on her.Here was the problem: While the actual man in the image was a model who had consented to the shoot, a giant tattoo on his back belonged to Brophy. Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit (Brophy’s), and photoshopped it onto the model’s body. It apparently didn’t occur to him that he would need anyone’s approval to do so.When the trial kicked off last week, Brophy testified that the image had been a “complete slap in the face” and had caused him “hurt and shame.” Then on Wednesday, Cardi herself took the stand — repeatedly sparring with Brophy’s attorney (A. Barry Cappello of Cappello & Noel LLP), demanding “receipts” to support the allegations, and accusing him and his lawyers of “harassing” her in hopes of scoring a settlement.In the end, jurors were clearly swayed by the arguments from Cardi’s lawyers (Peter Anderson of Davis Wright Tremaine LLP and Lisa F. Moore of Moore Pequignot LLC). Among other defenses they raised, their primary argument was pretty simple: That nobody would have recognized a relatively unknown man based merely on his back tattoo, and that he had little proof anyone did.After the verdict, Cardi took to Twitter to celebrate her legal victory: “I just won this lawsuit …Im soo emotional right now,” the superstar wrote. “I wanna kiss Gods feet right now …..IM BEYOND GRATEFUL!!!!”
Other top stories this week…
HOV WANTS OUT OF BOOZE BIZ — Jay-Z filed a lawsuit seeking to end his involvement with D’Usse Cognac, a brand he currently co-owns with spirits giant Bacardi. The rap mogul’s lawyers claimed that Bacardi is legally required to buy out his half of the business, but that the company is “lowballing” and “stonewalling” him to get a cheaper price. The lawsuit said Jay-Z’s move to exit D’Usse came amid “growing concern” about how Bacardi was running the company, including supply chain failures and an unwillingness to change prices.HEDLEY SINGER SENTENCED FOR SEX ASSAULT — Singer Jacob Hoggard, the former frontman for multi-platinum pop-rock band Hedley, was sentenced in Canada to five years in prison for the sexual assault of an Ottawa woman. The sentence came after a June verdict that found Hoggard guilty of sexual assault causing bodily harm of a woman known only as “JB” during a 2016 incident in an Ontario hotel room. Hoggard could have received as much as 14 years, but prosecutors sought only six to seven years. His defense attorneys asked for three to four years.ONE ASTROWORLD VICTIM SETTLES CASE — Attorneys for the family of Axel Acosta, a 21-year-old man who died at the last year’s Astroworld music festival in Houston, announced they had reached an agreement to resolve their legal case against Live Nation and Travis Scott, one of the first known settlements in the sprawling litigation over the disaster. But sources close to Scott quickly said he had not been involved in settlement talks, and no formal notice was filed on the court’s docket, leading to uncertainty about what had actually happened. Even if a deal is struck by Acosta’s family, thousands of other alleged victims are still seeking billions of dollars in damages from Live Nation, Scott and others, claiming they were legally negligent in how they planned and conducted the event.CHARGES DROPPED AGAINST LIL DURK — Prosecutors in Georgia told a judge that they would no longer pursue criminal charges against the Chicago rapper (real name Durk Derrick Banks) over a 2019 shooting in downtown Atlanta, citing “prosecutorial discretion.” Along with the late rapper King Von, Durk was arrested way back in May 2019 on accusations that he was involved in gunfire near the popular Atlanta restaurant The Varsity, which left a victim with a non-fatal gunshot wound to the thigh. More than three years later, prosecutors insisted “probable cause existed for the defendant’s arrest” but that “the decision of the District Attorney at this time is not to prosecute.”MILEY CYRUS ENDS INSTAGRAM CASE — Just a month after it was filed, Miley Cyrus settled a copyright lawsuit that accused the star of violating copyright law by posting a paparazzi photo of herself to Instagram. Such allegations are a bizarrely common legal problem for celebrities, and over the past few years Dua Lipa, Justin Bieber, Ariana Grande, Emily Ratajkowski, LeBron James, Katy Perry and others have all faced similar cases. Like Miley’s case, most of the lawsuits quickly settle. That’s because it’s actually a pretty cut-and-dried legal issue: Photographers own the copyrights to the images that they take, and using those photos without a license constitutes infringement. Unfair as it might seem, appearing in an image does not give a celebrity co-ownership of it, nor does it give them a right to repost it for free.MUSIC HACKER GETS TWO YEARS IN PRISON — A British computer hacker who stole unreleased songs from Ed Sheeran and Lil Uzi Vert was sentenced in the UK to 18 months in prison. Prosecutors said Adrian Kwiatkowski, 23, hacked the artists’ cloud-based accounts and sold their songs on the dark web in exchange for $147,000 in cryptocurrency. The case was actually sparked by the Manhattan District Attorney’s Office, which linked the crime to Kwiatkowski and then handed the case off to British authorities.
Jay-Z wants to sell his stake in D’Usse Cognac, and says that Bacardi – which owns the other half of the business – is legally required to buy it. But in a new lawsuit, the superstar claims the liquor giant is “lowballing” and “stonewalling” him to get a cheaper price.
In a complaint filed in Delaware court, Jay-Z’s SCLiquor LLC says that it exercised a contractual option to sell its 50 percent stake in D’Usse to Empire Investments, the Bacardi unit that owns the other half and runs the company’s day-to-day operations. Hov’s company claims the move came after years of “mismanagement and underperformance” by Bacardi.
But according to the lawsuit, which was made public on Thursday (Oct. 20), Bacardi and Empire responded to the move not by following the rules, but by refusing to hand over key information and scheming to “artificially depress” the price it would pay.
“Empire sought to stall and stonewall SC’s efforts in an attempt to wrest SC’s 50% membership interest in D’Usse at a cheaper price by, among other things, refusing to provide necessary information,” SCLiquor’s lawyers wrote.
According to the lawsuit, SCLiquor holds a so-called “put option” on D’Usse’s corporate entity, a legal mechanism that, when triggered, requires Bacardi to buy out Jay-Z’s half of the business. The two sides are supposed to negotiate in “good faith,” exchange information and agree on a fair price.
But Jay-Z’s lawyers say that when they exercised the put option last year, Empire and Bacardi did anything but operate in good faith.
“Instead, Empire has abused its day-to-day control of D’Usse to deprive SC of information necessary to … assess D’Usse’s value,” SCLiquor’s lawyers wrote. “Empire has done so by engaging in an apparent shell-game with its parent company Bacardi.”
They say the move to sell off Hov’s stake came amid “growing concern” about how Empire was running the company, including its “blatant conflict of interest” with Bacardi. Jay-Z’s lawyers say Empire has relied on Bacardi to provide key services, even though the parent company has had repeated failures that hurt D’Usse, including supply chain failures and an unwillingness to change prices.
In its current form, the lawsuit is only seeking to force Empire to turn over more information about D’Usse. But the complaint says that information will also be used to “investigate potential future actions for damages.”
A rep for Bacardi did not immediately return a request for comment on the lawsuit.
A computer hacker who stole unreleased songs from British pop star Ed Sheeran and American rap artist Lil Uzi Vert has been sentenced to 18 months in prison, U.K. prosecutors said Friday.
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Adrian Kwiatkowski, 23, of Ipswich in southern England, hacked the artists’ cloud-based accounts and sold their songs on the dark web in exchange for cryptocurrency. City of London Police, which investigated the case, said Kwiatkowski made 131,000 pounds ($147,000) on the transactions.
“Kwiatkowski had complete disregard for the musicians’ creativity and hard work producing original songs and the subsequent loss of earnings,” said Joanne Jakymec of the Crown Prosecution Service. “He selfishly stole their music to make money for himself.”
In August, Kwiatkowski pleaded guilty to a variety of charges, including 14 copyright offenses and three counts of computer misuse. He was sentenced Friday (Oct. 21) in Ipswich Crown Court.
City of London Police worked with authorities in the United States to investigate the case after the management companies of several musicians reported that an individual, known online as Spirdark, had gained access to their clients’ cloud-based accounts and was selling their content.
The Manhattan District Attorney’s Office launched an investigation in 2019, and linked the email address used for Spirdark’s cryptocurrency account to Kwiatkowski. It then identified the IP address of the device used to hack one of the accounts as his home address.
After further investigation, Kwiatkowski was arrested by the City of London Police’s Intellectual Property Crime Unit in September 2019.
“Cybercrime knows no borders, and this individual executed a complex scheme to steal unreleased music in order to line his own pockets,” Manhattan District Attorney Alvin L Bragg Jr. said.
Travis Scott, Live Nation and other organizers of last year’s deadly Astroworld music festival in Houston appear to have reached their first settlements with victims in the sprawling litigation over the disaster.
Nearly a year after a crowd-crush during Scott’s Nov. 5 performance left 10 dead and hundreds injured, attorneys for the family of Axel Acosta, a 21-year-old killed in the incident, confirmed Thursday that they had reached a settlement with the organizers. The terms of the agreement were not disclosed.
“Victim Axel Acosta was a beloved son, brother, and student,” said Tony Buzbee, who also represents scores of other victims. “He was kind and loving. He is greatly missed. Please keep his family in your prayers.”
Separately, Houston’s ABC affiliate reported late Wednesday that the family of Brianna Rodriguez, a 16-year-old who died at Astroworld, had also settled their claims. Neither settlement is yet posted to the court’s public docket.
Live Nation and a rep for Scott did not immediately return requests for comment on Thursday.
The agreements represent two of the first known settlements in the sprawling litigation over the Astroworld disaster, in which thousands of victims are seeking billions of dollars in damages from Live Nation, Scott and others. The lawsuits, consolidated before a single judge earlier this year, claim the organizers were legally negligent in how they planned and conducted the event, resulting in one of the deadliest concert disasters in history.
The defendants, which also include venue manager ASM Global and the municipal Harris County Sports & Convention Corporation, strongly deny the allegations and have assembled a formidable team of lawyers to fight the litigation.
According to a legal filing in May, more than 4,900 people have filed legal claims stating they were injured in some capacity at Astroworld. In addition to the 10 people who died, 732 claims have been filed by people who needed “extensive medical treatment” and 1,649 who needed less extensive care. Another 2,540 were listed as “other,” meaning the extent of their injuries was still being reviewed. It’s unclear how many people claim physical harm versus mental and emotional harm, like post-traumatic stress.
The individual settlements announced this week are likely only a precursor to a larger deal. Similar litigation over previous concert disasters, like the 2017 mass shooting in Las Vegas that left 60 dead or the 2003 nightclub fire in Rhode Island that killed 100, were ultimately resolved with large settlements covering hundreds of victims.
Canadian singer Jacob Hoggard, former frontman for multi-platinum pop-rock band Hedley, was sentenced this morning (Oct. 20) to five years in jail for the sexual assault of an Ottawa woman.
The 38-year-old was given the sentence by Ontario Superior Court Justice Gillian Roberts.
The hearing began on Oct. 6 in person, then continued Oct. 14 on Zoom, at which Hoggard declined his right to speak. He was in court for the sentencing, after which he embraced his wife and was then led out.
In June, after a four-week trial, a jury found Hoggard guilty of sexual assault causing bodily harm of a woman known only as “JB.” Hoggard could have received as much as 14 years in jail. The Crown sought a sentence of between six to seven years in jail; the defense asked for three to four years.
For about an hour, Justice Roberts read out portions of her sentencing conclusion, before handing down the sentence.
“Ultimately, the total sentence must be proportionate to the gravity of the offending conduct and the circumstances of the offender, including his degree of responsibility,” she noted. “It must be sufficient to reflect the inherent harmfulness of a manipulative and particularly degrading rape.”
She then asked Hoggard to stand. “In all the circumstances of this offense, and this offender, I believe a fit and appropriate sentence is five years.”
Hoggard’s legal team had already filed a notice of appeal. The victim has also filed a lawsuit for $2.8 million Canadian (USD $2M).
In the trial, Hoggard was found guilty of one count of sexual assault causing bodily harm, but not guilty of two charges against another woman, one the same charge and the other of sexual interference (referring to a person under the age of 16).
The case, involving two women (one a minor at the time) was heard in a Toronto court. The separate assaults allegedly occurred in 2016 in Hoggard’s hotel room. One woman is from Ottawa, the other from the Greater Toronto Area.
Hoggard, who took the stand in his own defense, pled not guilty to all charges.
The verdict came six days after the revelation that a new charge had been kept out of the media since March to avoid tainting the current jury. Hoggard will face a new trial on one charge of sexual assault causing bodily harm. The rape is alleged to have occurred in Kirkland Lake, Ontario, in 2016 when the band was on tour.
Allegations against Hoggard began to surface on social media in early 2018. The singer had risen to fame in 2004 on the long-canceled television show Canadian Idol, finishing in the top three before signing with Universal Music Canada for his band Hedley. Capitol signed them in the U.S. in 2006 but later dropped them. In Canada, the band’s success included chart-topping singles, platinum certifications and headlining tours. Hoggard hosted the Juno Awards in 2015. The band’s seventh and final album, Cageless, was released in 2017.
After multiple women and girls told their stories online, Hoggard issued a statement in February 2018, which read in part, “I need to be completely clear: I have never engaged in non-consensual sexual behaviour in my life. Ever. However, over the last 13 years, I have behaved in a way that objectified women.” He added, “It’s time for me to change. I’ve decided to step away from my career indefinitely.”
Hedley’s agency, management and record label dropped the band and radio pulled their music from their playlists.
Hoggard was charged in July of 2018. He married his second wife later that year on Dec. 31.
The trial was originally scheduled to begin in November of 2018, but was pushed back several times due to the COVID-19 pandemic. It finally began in May.
Stories about sexual assault allegations can be traumatizing for survivors of sexual assault. If you or anyone you know needs support, you can reach out to the Rape, Abuse & Incest National Network (RAINN). The organization provides free, confidential support to sexual assault victims. Call RAINN’s National Sexual Assault Hotline (800.656.HOPE) or visit the anti-sexual violence organization’s website for more information.
Cardi B didn’t hold back when she took the witness stand Wednesday (Oct. 19) in a lawsuit claiming her sexually-suggestive album cover left a man “humiliated,” repeatedly sparring with an opposing attorney, requesting “receipts” and claiming her accuser is “harassing” her in hopes of scoring a settlement.
The rapper’s testimony came in an unusual case filed by Kevin Brophy, a California man who claims parts of his back tattoo was unwittingly photoshopped onto the cover of Cardi’s 2016 mixtape Gangsta Bitch Music Vol. 1 to make it look like he was performing oral sex on the now-superstar.
During Wednesday’s hearing, Cardi and Brophy’s attorney, A. Barry Cappello, battled repeatedly. At two different points during their sparring, the judge dismissed the jurors from the courtroom to calm the bickering down. On the second dismissal, things got so heated that the judge told Cappello he had “totally crossed the line,” and even threatened to declare a mistrial after jurors had left the courtroom.
Earlier in the day, Brophy’s attorneys said they had sent the star a cease-and-desist seeking to have the image removed – prompting Cardi to fire back that the case was really about money, not changes to an album cover.
“This is not about taking anything down. Y’all have been harassing me for $5 million,” the star said to Cappello. Cardi later noted that the mixtape did not even earn that much, and her cut was even less.
The star also took exception to the suggestion that Brophy’s image on the cover had somehow contributed to her meteoric success over the past decade – a key part of his legal case against her. She said she had been “working my ass off [for] two kids” and that it’s “really insulting to me as a woman that a man is claiming responsibility.”
Released in 2016, the cover image of Gangsta Bitch certainly raised eyebrows. In it, the then-rising star is seen taking a swig of a large beer, staring directly into the camera with her legs spread wide and holding a man’s head while he appears to perform oral sex on her.
The actual man in the image was a model who had consented to the shoot, but a giant tattoo on the man’s back belonged to Brophy. Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit (Brophy’s), and Photoshopped it onto the model’s body. It apparently didn’t occur to him that he would need anyone’s approval to do so.
Brophy sued in 2017 for millions in damages, claiming he was “devastated, humiliated and embarrassed” by the cover. He says Cardi and others violated his so-called right of publicity by using his likeness without his consent, and also violated his right to privacy by casting him in a “false light” that was “highly offensive.”
Cardi’s legal team has argued those accusations are “sheer fantasy” and “vastly overblown” – and that Brophy is just suing her in an effort to “cash in the legal equivalent of a lotto ticket.” Her legal team says nobody would have recognized a relatively unknown man based merely on his back, and that he has little proof anyone did.
The trial kicked off on Tuesday, when Brophy testified that Cardi’s “raunchy” image had caused severe stress on his life. He called it a “complete slap in the face” that had caused him “hurt and shame.”
But at Wednesday’s hearing, Cardi pointed out from the witness stand that the model in the image was “a Black man that’s fit” who has hair. Brophy is white with a shaved head.
“It’s not Mr. Brophy’s back. It doesn’t look like Mr. Brophy at all,” she told Cappello. “There has been not one receipt he has provided in the court claiming, ‘Hey, that’s you on Cardi’s mixtape.’”
Wednesday’s proceedings also featured testimony by Brophy himself and his wife, as well as Cardi’s former manager Klenord “Shaft” Raphael. Testimony will continue on Thursday, with a verdict expected on Friday or Monday.re
Miley Cyrus has settled a copyright lawsuit a month after she was sued for posting a paparazzi photo of herself to Instagram, according to court documents filed Wednesday (Oct. 18) and obtained by Billboard.
In the original complaint, filed on Sept. 12 in Los Angeles federal court, photographer Robert Barbera claimed that Cyrus reposted his 2020 image of her without a license or permission to do so. In the snap, the “Midnight Sky” singer is seen waving to fans as she exits a building.
In his complaint, Barbera claimed Cyrus has an “immense presence” due to her millions of followers on Instagram, and that posting the image “crippled if not destroyed” his ability to make money licensing it.
According to court documents, the lawsuit was subsequently dismissed “with prejudice,” meaning Barbera cannot refile the same claim again in that court.
The lawsuit against Cyrus is not the first Barbera has filed. The New York-based photographer previously filed copyright complaints against Ariana Grande in May 2019 and January 2020, and Justin Bieber in October 2019, though both cases were later settled on confidential terms. Earlier this summer, he filed another lawsuit against Dua Lipa that at the time of publication is still pending in court.
Though these cases may seem unfair, the law is on the side of photographers like Barbera, as they own the copyrights to the images that they take — and using those photos without a license constitutes infringement. Simply appearing in an image does not give a celebrity co-ownership of it, nor does it give them a right to repost it for free.
Had the court found that Cyrus had infringed Barbera’s copyright, the singer could have faced damages totaling as much as $150,000. For that reason, most celebrities accused of infringement by photographers opt to settle out of court, likely for a smaller sum, in order to avoid the time and expense that come with continued litigation. Though the terms of these settlement deals are nearly always private, for a single photo, amounts likely range in the tens of thousands of dollars.
R. Kelly’s former business manager asked a federal judge to award him $850,000 in attorneys fees after a jury acquitted him during the same trial in Chicago at which the R&B singer was convicted of child pornography charges.
Derrel McDavid’s attorney wrote that deserves to recoup the legal fees after enduring a “frivolous, vexatious and bad faith prosecution over which he prevailed.” Attorney Beau Brindley filed the 18-page request with U.S. District Judge Harry Leinenweber late Monday (Oct. 17), the Chicago Sun-Times reported.
A federal jury last month convicted Kelly of producing child pornography and enticing minor girls for sex, but found Kelly and McDavid not guilty of conspiring to rig a 2008 trial in which Kelly was acquitted on state child pornography charges. A third co-defendant, Milton Brown, was acquitted of receiving child pornography.
Such motions are exceedingly rare and do not often succeed, in large part because defendants who are acquitted of criminal charges do not have a right to compensation. In his motion, Brindley said prosecutors knew the testimony of two key witnesses was “necessarily incoherent.”
“This is, by definition, a reckless disregard for the truth, which constitutes a frivolous and vexatious position by the government,” he wrote. “This entitles Mr. McDavid to reasonable attorney’s fees.”
During the trial, prosecutors maintained there was compelling evidence that McDavid was aware that Kelly was producing child pornography and that he sought for years to conceal evidence of what Kelly was doing.
Brindley said McDavid still owes $600,000 in legal fees and “must now liquidate real property and other assets in an attempt to pay.” Brindley also wrote that he and others spent at least 1,220 hours working on the case and that adds up to about $65,000 less than what a “reasonable market rate” of $750 an hour would cost a client.
Kelly has not yet been sentenced in the Chicago federal case, but he was sentenced earlier this year to 30 years in prison for a federal conviction in New York on racketeering and sex trafficking charges.
This is The Legal Beat, a weekly column about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between.
This week: Cardi B goes to trial in a weird case over a bawdy album cover, Gunna is again refused bond in Atlanta, Ed Sheeran warns that a copyright ruling might “strangle” future songwriters and much more.
THE BIG STORY: Cardi Heads to Trial Over Bawdy Album Cover
In one of the weirder cases you’ll ever hear about, Cardi B is headed to a federal courthouse today to defend against claims that the cover of her debut mixtape “humiliated” a man named Kevin Brophy, who alleges he was unwittingly photoshopped into the artwork to make it look like he was performing oral sex on the now-superstar.Yes, you read that right. And I didn’t even tell you yet that the entire thing hinges on a giant back tattoo featuring “a tiger battling a snake.”As Cardi’s star was rising in 2016, she released Gangsta Bitch Music Vol. 1 with a provocative cover – an image of her swigging a beer, staring into the camera … with a man’s head between her legs. The actual guy in the image was a model (who consented to the whole thing), but the giant tattoo on his back belonged to Brophy (who didn’t). Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit, and Photoshopped it onto the model’s body. It apparently didn’t occur to him that he would need anyone’s approval to do so.Years later, the two will now square off before a jury over whether the image broke the law, and whether Cardi herself is to blame.Brophy claims the star and others violated his right of publicity by using his likeness without his consent, and also invasion of his privacy by casting him in a “false light” that was “highly offensive” to a reasonable person. He claims he was “devastated, humiliated and embarrassed” by the cover.Cardi says those accusations are “sheer fantasy” and “vastly overblown.” Her legal team says Cardi had no idea Brophy’s image was being used, and that he’s just suing her in an effort to “cash in the legal equivalent of a lotto ticket.” But their chief argument is even simpler: That nobody would have ever recognized a relatively unknown person based on a cropped image of his back tattoo.“No matter how much plaintiff may be obsessed with the notion, the fact remains that it is not ‘him,’ or a ‘likeness of him,’ or ‘his identity’ in the cover image,” Cardi’s lawyers wrote.Cardi is expected to testify at some point, with a verdict expected by the end of the week or early next week. We’ll keep you posted over at Billboard.com when the news drops.
Other top stories this week…
VLOGGER BETTER HAVE MY MONEY – Elsewhere in Cardi-world, a federal judge ruled that Tasha K – a gossip blogger who made salacious claims about the star – must either immediately pay up on an almost $4 million defamation verdict or secure a bond covering the entire amount. Tasha is currently appealing the verdict and wanted to pause the judgement while she does so, but Cardi’s lawyers warned last month that the YouTuber had bragged about taking steps to “insulate herself” from the huge damages award, and might use the delay to avoid paying entirely.GUNNA DENIED BOND YET AGAIN – For a third time, a Georgia judge refused to release Gunna from jail ahead of his January trial in the sweeping case against Young Thug and others accused of operating a violent gang in the Atlanta area. The order came after prosecutors claimed to have text messages in which a co-defendant in the sprawling case offered to “whack someone” on the rapper’s behalf, prompting the judge to say that he had the “same concerns” about the potential for witness tampering. But just a day later, Gunna’s lawyers cried foul, claiming the alleged smoking gun text actually had “nothing to do with witness intimidation” and had been used to mislead the court.SHOTS FIRED OVER POWERHOUSE MUSIC LAWYER – In an exclusive interview with Billboard’s Frank DiGiacomo, Rolling Stone founder Jann Wenner blasted the Rock & Roll Hall of Fame for its upcoming induction of powerhouse music lawyer Allen Grubman, saying it was “about money and bending to the ego of a music business power broker.” Grubman is one of the most powerful attorneys in the industry, counting Bruce Springsteen, Lizzo, The Weeknd, Lil Nas X, Lady Gaga and other stars as clients, as well as major music companies and digital streamers. But Wenner said he decided to speak out because he believes Grubman clearly doesn’t fit the criteria: “Grubman has made no contribution of any kind, by any definition, to the creative development or the history of rock & roll.”WARHOL & PRINCE AT SCOTUS – More than three decades after Andy Warhol‘s death and six years after Prince‘s sudden passing, the two pop culture icons took center stage at U.S. Supreme Court , as the justices heard arguments in a major copyright case. At issue in the dispute is whether the late Warhol made a legal “fair use” of a photograph of Prince when he used it as the basis for a set of his distinctive screen prints – or merely infringed the copyrights of Lynn Goldsmith, the photographer who snapped it. During the proceedings, the justices grappled with tough questions, like what exactly is necessary to “transform” a copyrighted work into a fair use. In a lighter moment, Justice Clarence Thomas disclosed that he had been a fan of Prince’s music “in the ’80s,” to which Justice Elena Kagan asked “no longer?” As the room erupted in laughter, Thomas replied enigmatically: “Only on Thursday night.”ED SHEERAN WARNS OF ‘STRANGLED’ SONGWRITERS – The pop star’s lawyers asked a federal judge to rethink a recent decision that said the singer must face a trial over whether “Thinking Out Loud” infringes Marvin Gaye‘s “Let’s Get It On.” The decision came two weeks after Judge Louis Stanton refused to toss the case out, ruling that a jury would have to decide Sheeran’s argument that he only borrowed basic, unprotectable musical “building blocks.” In the new filing, the star’s lawyers warned the judge that forcing musicians to face trials over such material would have a chilling effect on the industry and threaten to “strangle creation” by future songwriters. In technical terms, Sheeran’s attorneys want the judge to either undo the ruling entirely, or allow them to immediately appeal it before he faces trial.SLACKER HIT WITH HUGE UNPAID ROYALTY BILL – A federal judge ruled that streaming platform Slacker owes nearly $10 million in unpaid performance royalties to record labels and artists. SoundExchange, which collects streaming royalties for sound recordings, sued Slacker and parent company LiveOne in June, claiming they had refused to pay millions over a five-year period. This week, Judge André Birotte Jr. made it official, ordering that Slacker pay $9,765,396 in unpaid royalties and late fees. Importantly, he also banned the company from using the so-called statutory license – a key copyright provision that allows radio-like streamers to get easy access to licenses at a fixed rate. Now, Slacker will presumably need to negotiate direct licenses from rights holders for sound recordings, similar to what on-demand streaming services like Spotify must do.