Tag: public performance rights

Has the Moment Finally Arrived for Fairness to Music Performers?

Unlike the rest of the developed world, American radio broadcasters are unique in that they pay nothing in performers’ royalties when they play music on their stations. Although this has been true since radio began in the U.S., many Americans are surprised to learn that this is the case and, according to polling, believe it’s unfair. That’s because it is unfair.

Songwriters receive royalties for terrestrial radio play but not recording artists and their labels, which also excludes producers, engineers, and studio musicians. Almost since the day the National Association of Broadcasters (NAB) was formed in 1922, the station owners have successfully lobbied against a public performance right in sound recordings via broadcast by arguing that the promotional value radio play provides to the recording industry overwhelms the rationale for paying to license the music.

“But that was never a legitimate excuse,” said Congressman Ted Deutch in front of the Capitol yesterday afternoon when he introduced the American Music Fairness Act, co-sponsored by Congressman Darrell Issa. “The broadcasters have become experts in muddying the waters,” Deutch continued as a group of musicians in the background, including Dionne Warwick, Sam Moore, Ken Casey of the Dropkick Murphys, and Blake Morgan, all nodded in recognition that this has been a decades-long fight for basic fairness. As Rep. Issa noted in response to one reporter’s question, Congress will not be negotiating the terms to establish equity with the major broadcasters—this will be done under the auspices of the Copyright Office—but he emphasized that the longstanding rule of “not one penny” is a bad faith arrangement that needs to be made right.

Six major media conglomerates own more than 2,000 terrestrial radio stations in the United States, and the revenues from radio advertising totals in the hundreds of billions of dollars. And nobody is confused about the fact that without music to play, most of those stations would not have the audiences needed to attract those advertisers. If American radio stations ever did provide enough promotional value to justify not paying for public performances of the recordings—and the relationship between radio and record sales is both questionable and scattershot at best—that argument is even weaker in the 21st century market, when the prospect of selling copies or downloads is less likely than in prior decades.

At this point, while the pundits and the gurus keep spinning theories about “music discovery” (i.e. exposure) as an excuse to avoid paying creative people in many fields, the only clear observation we can make in this instance is that terrestrial radio is just one of several means by which we still listen to music. And the music is the ONLY reason we hear the advertisements that generate all the money in that industry. Surely, there can be no rationale for allowing entities like iHeartRadio, Cumulus, et al to keep paying nothing to the performers on whom they so profoundly depend.

Moreover, Rep. Issa explained that not only does America’s uniqueness in this regard deny royalties to both American and foreign artists in the American radio market, but it also denies royalties from foreign radio stations to American artists due to reciprocity. Because our radio stations don’t pay their artists, their radio stations don’t pay ours, which is rather extraordinary when we consider the amount of music the United States exports worldwide.

The AMFA is narrowly tailored to avoid imposing undue burdens on small, independent, and public radio stations through fixed, statutory rates for entities earning less than $1.5 million. For instance, a station earning $100,000 pays $10/year. Upon adoption of the bill, the larger entities will negotiate royalty arrangements with labels and other artist-representing stakeholders. But probably not without a fight by the broadcasters over passage of the bill itself.

The broadcasters have enjoyed a free ride for a very long time, and perhaps they will once again throw more money than the average musician ever earns at an effort to maintain the status quo. But on the other hand, maybe they’ll see the writing on the wall this time. Because at least when it comes to artists’ rights, many Members of Congress seem to have more finely tuned their bullshit detectors in recent years. And one upside of the of the fact that the broadcasters have successfully squashed the performers’ rights for so many years, is that every argument they can present, has already been made hundreds of times.

… no one would argue with the fact that the promotion which records receive from broadcast exposure boosts record sales and attendance at performers’ concerts. This promotion is more than adequate compensation for the broadcast performance. The undeniable truth is that many recording companies and artists would be forced out of business overnight if broadcasters stopped playing their records over the air.

That was in a letter submitted on behalf of the North Carolina Broadcasters to the Copyright Office in 1978. And what little purchase on reality the argument had then has long since eroded as a foothold in the contemporary market. Time to play fair and give the musicians a little cut of the revenue their work generates. Because without the music, nearly all the radio stations would be forced out of business overnight.

Photo by hurricanehank

Advocacy or PR from the EFF?

Two posts ago, I helped ruffle many feathers — and awaken a few trolls — when I accused the EFF in general, and attorney/blogger Mitch Stoltz in particular, of producing scare-mongering hyperbole by never passing up an opportunity to ring the pavlovian SOPA bell.  Regular readers of this blog know that I have often been critical of this organization because I believe its communications too often vacillate between public advocacy (its stated mission) and PR/policy work on behalf of the Internet industry.  And the apparent correspondence between these interests is admittedly a bit confusing from time to time. Because the Internet is so thoroughly integrated into most of our lives, it is easy to believe that, for instance, what’s good for Google or Twitter or Pandora, is inherently good for those of us who rely on the flow of digital data for business, entertainment, news, relationships, and even expressions of identity and purpose.  I’ve said it before.  No other industry — not medicine, not petroleum, not even food — has ever enjoyed so much latitude in the ability to associate its motives with the public’s defense of its civil liberties. This is a potent political cocktail, which is why I advocate vigilant skepticism.

So, two days ago, Mr. Stoltz posted an opinion piece written in a dispassionate, lawyerly tone that I had just recently accused the EFF of adopting only rarely.  In this article, Stoltz offers a frank analysis as to why he believes a pre-1972 public performance right, granted in the Flo & Eddie case and now being appealed, will “squelch competition in new music services” if upheld.   Music licensing can be mind-boggling for attorneys, so I won’t be the one to parse any of Stoltz’s legal statements, but will point readers, as usual, to Terry Hart’s historically contextualized summary of this same matter.

But regardless of the legal merits on either side of this issue, the main reason I’m bothering to cite Stoltz’s new post here is that I’m unclear as to why the EFF even views this case as relevant to the general public’s rights in the digital age.  This kind of legal/financial wrangling among business interests has been going on forever, and it is rare that the outcomes set precedents that have much to do with the rights of the rest of us citizens.  As such, this particular story about public performance rights and streaming and satellite services seems much more appropriately the purview of either business reporters or PR agents for one industry or the other.  (So, you see what I’m driving at.)

I like music streaming and hope it evolves into a model that works for both consumers and creators — because right now it does not — but I certainly don’t consider Pandora’s or Spotify’s financial interests as having anything to do with my civil liberties in the digital age.   So, why does the EFF?  I suppose the closest thing to a rights issue would be Stoltz’s thesis that this ruling is harmful to competition, but even that is a stretch vis a vis civil liberties.  Moreover, as I’ve said in the past, and as any observer can can see, the Internet, by its very nature, doesn’t tend to produce multiple competitors in spaces like music streaming.  To the contrary, the Web tends to foster monopsonies (e.g. Amazon, YouTube) that are able to dictate, rather than negotiate, terms with suppliers and creators.  And that’s not the fault of rights holders, that’s just the nature of the technology in its present form.

To be clear, I don’t think there’s anything automatically wrong with vested interests organizing around policy.  It’s how most policy gets done, whether we want to admit it or not.  And often, there are mutual interests and alliances between big and small, between a corporate interest and the everyday citizen or entrepreneur.  For instance, I strongly believe that independent film will not thrive in a market that fails to mitigate piracy, and so independent filmmakers share this common ground with the big studios, which are the only entities with the resources to address piracy in either policy or legal arenas.  By the same token, I guess it is not inconceivable that the interests of music streaming companies can’t be aligned with our civil rights, but it is not readily apparent as to how this might be the case.  Instead, it seems that what the EFF opposes most of all is any policy that looks like an expansion of rights for creators ever. And this is interesting in itself because it implies that the millions of creators in this country are not part of the “your” in the motto Defending your rights in the digital world.