Level Playing Field: Performance royalty battle heats up
Yesterday the House Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on updating the performance royalties rules which would pay artists a royalty when their music is broadcast on terrestrial radio.
Marybeth Peters, Register of Copyrights at the U.S. Copyright Office, was in attendance and had very compelling case (mentioning satellite radio several times in her testimony). She laid the ground that all services should be treated equal, and if digital broadcasters need to pay a performance right, then so do analog broadcasters.
Here's one of my favorite statements from her testimony:
"Consequently, whatever promotional value that may have existed in 1995 has been diluted by the increase in alternative media, such as satellite radio and digital music services... Moreover, broadcasters’ claims ignore the fact that songwriters and music publishers receive payments for the same public performances for which performers and record companies do not. The broadcasters’ rhetoric never accounts for this inconsistency and it fails to explain why airplay provides promotional value to performers and record companies but not to the songwriters and music publishers."
Peters also brings up the Inno lawsuit, and that a similar suit against a free over-the-air recording device would likely have completely different results.
Also in attendance were recording artists and GRAMMY winners Judy Collins and Sam Moore.
"The issue here is simple, it’s about fairness," said Judy Collins. "Radio is multibillion dollar industry built on our creativity, our passion and our soul which is part of every song aired on the radio. Every other music distribution platform – Internet, cable and satellite radio – recognizes what we bring to sound recordings. Terrestrial radio no longer has an excuse. It’s time to acknowledge the performer and treat us fairly."
"You may remember a little song that Stephen Sondheim wrote for the musical A Little Night Music entitled 'Send in the Clowns'," Collins told the subcommittee members. "I recorded the song in 1975 and shortly after release, the record became a top radio hit."
"Unfortunately, I did not earn a cent from radio even though that song was played time and time again. On the other hand, Stephen Sondheim earned millions. He wrote me a thank you note... It read, 'Judy, thank you for giving me my first hit song.' It is a wonderful song. Stephen deserves to be compensated for his creativity. But I do, too; as do the thousands of artists who bring music to life on the radio…"
And Sam Moore drives the point home perfectly...
"If broadcasters shared any of the money they earn from playing my recordings, I'd be spending more time with my grandchildren," said Sam Moore "I’m 71 years old and still touring to support myself and my family. A fair performance right would allow me to retire from a life on the road."
"I remember Mary Wells coming to my house after she was diagnosed with cancer. Mary brought so many great songs to life, including the number one hit 'My Guy.' And yet, she told me and my wife that she didn't know what would happen to her little girl Sugar after she died. In 1992, with no income earned from decades of radio airplay, Mary died without being able to provide for her daughter..."
"I think about the late Junior Walker going out on tour sick with cancer, needing to earn income. I think about Bo Diddley, today still recovering from a stroke he suffered last year while performing – at nearly 80 years old. Many of our greatest artists, who created the recordings that are the soundtracks of our lives, must tour until they die because they are not compensated by radio for the performance of their work."
Wow. It is absolutely time to level the playing field.
Read the full statements below (all are PDFs):
[Marybeth Peters]
[Judy Collins]
[Sam Moore]


Comments
Although I am all for "leveling the playing feild" One has to wonder whats too much? I feel very sorry for they guy on the road at 71 years old to support his family. But how much does the guy deserve for airplay? And is the cost going to be on a sliding scale according to listenership? I mean, if XM plays the song to its 8 million subscribers on one of its 170 channels does XM pay for 47,000 people listening? If Terestrial were to pay the same would they pay on listenership? or population base divided by the number of stations?
Now put that all aside. Does my auto mechanic get a penny every mile my car goes without breaking? It was his intelectual capability that was able to diagnose and fix the car. Or is he paid upfront for the work as part of a "contract"?
Does the Xerox Copier repair man get a cut of each copy? Does the Maytag repair man get paid for eash pair of David Rher's soild underwear thats washed?
Do I get money everytime someone Views my artwork?
Hey... This post is my intelectual property! If your Reading it, You Owe Me 3 cents!
So, do the artises deserve a cut of the price of my beer when I hear their song in a bar?
When I call Amzon.com and I am put on hold, do they get a cut of the price of the book?
Bottom line for me is that these artists signed a recording conract. They were paid and they get royalties. If they produced their own music they would get more money. Just like the factory workers or someone in the UAW, Some are good with their money and some are not. Some artists are Genius song writers and stupid finantially. Is this our fault? Should the public pay more to hear them? Why in the world don't these groups have their own websites where you can buy a digital copy to play on your MP3 player for 99 cents each?
Grow and adapt... don't complain and ask the governmet to fix it.
... And everyone reading this will get my bill for 3 cents in aproximatly 2-3 weeks. Late Charges will apply after 30 days.
Posted by: jeff | August 1, 2007 3:52 PM
ryan, nice to see you blog on this very related issue.
thank you marybeth, the current system is badly broken along with being unfair.its good to see the government own up to the simple facts here.
Posted by: tim wallick | August 1, 2007 5:23 PM
This is Joyce Moore, Sam's wife and I look forward to the opportunity to say some words on this subject...
Sam recently recorded a Brenda Russell/Barry Mann/Cyhtina Weil song with Sting titled "None Of Us Are Free"...
But at yesterday's hearing if you bought Charles Warfield Jr.the President of a powerful mega multi-million dollar broadcast enterprise you'd believe that's all artists should ever be..."free"...but his "free" means no cost to him, as opposed to financially liberated..."It is shameful that the broadcasters of the United States had been able to get away with the "status quo" (wasn't that what for a few centuries to prevent the civil rights legistation from passing in many of our lifetimes?) and get away with being the only holders of terrestrial radio wave rights in the developed countries of the world that don't pay artists when their performances are enjoyed on the airwaves.
And yes, for perhaps the 1st time ever the labels and the artists are in a "KumbyeYa" moment because wrong is wrong and the broadcasters have been strong and wrong for 80 years...no more of what will keep owners of multi-billion dollar radio groups that use AND I DO MEAN USE the recording artists to draw their listeners so they can do the only thing they care about...sell that air time to sponsors for huge profits.
If the artists and the music don't enable them to draw their demos and arbs and they feel it's fair to continue to get away with "exploitation" such as this, then let them all stop playing music and see what kind of revenues they get.
Folks, wrong is wrong and if it occasionally makes for strange bedfellows then it just does... but be assured, the artists are not stupid or crazy and the bill will have to carry safeguards that insure the labels won't be able to touch, cross collateralize, use as if they'd somehow they'd paid it, substitute for or count it as royalties, collect it or otherwise touch one penny of the artist's share...they as copyright holders should get theirs, they're entitled but the artists as the creators ofthe embodied performances that are being enjoyed likewise MUST finally get!...It's a new century and our beloved artists, such as my husband and all of his peers or their survivors deserve to get paid in the greatest country of all, our USA and enabled to then collect the thousands of dollars from around the world that he's locked away from along with all of his peers because principal broadcasters of The United States of American won't do right by it's culture and legacy.
You guys who don't actually understand or have researched the treaties and conventions that have stood for years and years that the US broadcasters have lobbied against for more than an 1/2 a century and succeeded, before you opin please be studious and get yourself educated ...I pray you take the time and trouble to get yourselves educated, learn the history of trying to get the performance right passed and then please and I'll beg
BE CAREFUL YOU KNOW WHO YOU'RE PUNCHING AT..THE LIFE YOU SAVE COULD BE A LEGEND!
Instead of saying "peace" I pray for
Prosperity,
Joyce Moore
PS The tag line to that amazing song title and lyric about is...."IF ONE OF US ARE CHAINED
Posted by: Joyce Moore | August 1, 2007 5:41 PM
Does my auto mechanic get a penny every mile my car goes without breaking?
Yeah. It's called an extended warranty.
Does the Xerox Copier repair man get a cut of each copy?
Almost all copier service contracts are based on a set number of clicks. Copier have counters for that very purpose.
So, do the artises deserve a cut of the price of my beer when I hear their song in a bar?
The price of your beer pays for more than just the beer. The profits from the beer sales can be used to pay rent, utilities, and for the jukebox you are listening to.
Do I get money everytime someone Views my artwork?
Only if you charge them.
Some artists are Genius song writers and stupid finantially.
Not everybody can be a "finantial Genius" like you.
Posted by: MeatFarley ? | August 1, 2007 5:51 PM
jeff is just trying to get quoted in the NAB's next response statement...;-)
Posted by: RoadRunner ? | August 1, 2007 6:33 PM
jeff is just trying to get quoted in the NAB's next response statement...;-)
LOL.... Naaaa I don't have a cool enough screen name
Posted by: jeff | August 2, 2007 8:05 AM
I think you guys are hitting on some good points, but I think the larger issue hasn't been adressed. That issue is that you can't have it both ways. You can't have satellite radio paying and terrestrial radio not paying. And some may say, "well XM and Sirius are pay services, so it's only right for part of their profits to go to the artists while terrestrial radio is free to everyone and is exposure, blah blah blah." The truth is they both make revenue from broadcasting, either it being your 12.95 a month or you listening to ads that radio stations make huge profits off of. So why does one have to pay and the other does not? There has to be uniformity. But i guess if the NAB says satellite and terrestrial don't compete, then i guess they can say that they should be able to play by different rules.
But on a side note, its not as if the NAB is being evil and greedy. You can't really blame them for putting up a vicious fight to not have to pay lots of extra money which would make huge cuts into profits. Its a business, they don't care what may be right, they care about how much money they will make and the laws that give them special status.
I think one of the previous posts brought up a good point. Artists sign contracts and they are paid accordingly, it's not as if they hve no idea that they're not going to be paid royalties by terrestrial radio. I think it should change, but I don't think its a huge travesty either, and I don't think its terrestrial radio's fault that people don't have enough money when they are older and need to keep preforming.
Posted by: kp | August 2, 2007 10:34 AM
I don't blame the NAB for fighting to keep this exemption. It is a gift. Their argument that radio sells records is a double edged sword. Many other media help to sell records also, should they be exempt? Radio earns about $17 billion in ad revenues from playing music. Recorded music sales are about $12 billion. Who is getting the better deal?
Check out the Ad-Supported Music Central blog:
http://ad-supported-music.blogspot.com/
Posted by: Marc Cohen | August 2, 2007 12:22 PM
The testimony from Sam Moore is one of the most compelling things I've ever read from an artist. There's only one answer: either everyone pays, or no one does.
Posted by: Max | August 2, 2007 7:11 PM