by Kevin Erickson, Communications Associate
When I talk to friends about my work with FMC, they’re eager to hear about the behind-the-scenes excitement that fuels policy change. Perhaps they’re hoping for House of Cards-style political intrigue set amidst DC’s marble halls.
To be honest though, the most exciting part of my job happens in more humble settings—like a couple Tuesdays ago in NYC, when I got to see Tift Merritt and Marilyn Carino huddle in a corner of a backstage green room to practice harmonies, singing along with a phone’s tinny speaker: “You! You got what I neeeeed!” as David Byrne paced around staring at a lyric sheet, doing his best to memorize as much he could before taking the stage at Le Poisson Rouge.
You might have seen the resulting performance go viral; it was picked up by Pitchfork, Rolling Stone and many others. This moment was just one highlight of an evening organized by the NYC branch of the Content Creators Coalition to raise awareness and spur action around fixing an annoying quirk in US copyright law: when you hear a song on the radio, the songwriter and publisher get paid, but the performer, backing players, and master owner (usually the label but sometimes the artist herself) do not. This sets the United States apart from most of the rest of the world: only a handful of countries (e.g. Afghanistan, North Korea, Iran, Rwanda) fail to compensate performers in this way. Likewise, internet radio, streaming services, cable and satellite radio all pay performers in addition to songwriters.
This can be a challenging concept to unpack at a time when many people don’t even understand that the copyright in sound recordings and compositions are dealt with separately. The clever conceit of this concert/rally was to illustrate this point by having a bunch of artists perform songs that were radio hits made famous by people other than the songwriter. For example, REM’s Mike Mills joined Carino to perform “I’m Your Puppet,” a hit for James & Bobby Purify, but written by Spooner Oldham and Dan Penn. John McCrea of Cake joined Marc Ribot and Ceramic Dog for a rousing version of “Perhaps, Perhaps, Perhaps,” a song that’s performed by dozens of musicians, all uncompensated by US radio.
The performances were interspersed with remarks from a variety of artists, activists, and advocates; I was invited to speak on behalf of FMC, as we’ve been active on this issue for years. It was exciting to see a diverse group coming together and finding common ground around this issue of basic fairness.
It was also great to hear among all the participants I talked to an awareness that any new arrangement would need to be made workable for college radio and community stations, including the newest low power FM (LPFM) stations, which tend to have more limited resources for licensing fees and playlist reporting. This is worth mentioning because the National Association of Broadcasters, primary opponents of the performance right, like to crow about how a performance right will supposedly hurt “local radio.” But as I said at the event: “This is hilarious because these are the same people who because of media deregulation and consolidation, bought up local radio stations, erased their local character, fired all the DJs and replaced them with robots that play nearly the same playlists in every city.” You may also remember that NAB was also the strongest opponent of the recent expanded opportunity for more LPFM stations, serving more communities with more diverse music. Community radio advocates like us finally won that battle, but it took a decade of work.
Of course, with only a couple minutes to speak, I couldn’t address every facet of the issue. For example, one question I get a lot comes from artists who (like most musicians) don’t get significant commercial radio airplay. Why should your average non-hitmaking indie rocker or jazz musician care about this issue?
One answer is reciprocity rules. In most other countries, royalties are collected for performers when music is played. But because foreign performers don’t get paid for US radio airplay, foreign collection societies don’t distribute any of that money to US performers. This can be a big deal for, say, Americana artists who get played on the BBC, or for jazz musicians who get significant airplay in continental Europe.
A second reason is that the exemption for terrestrial radio distorts markets for other platforms. This means it’s an impediment to getting fair compensation for music that’s delivered in other ways, including streaming. Think of it this way: If I’m selling pretzels, I’m not going to be able to charge as much as I should if there’s a pretzel stand next door that doesn’t have to pay for pretzel dough. In this way, fixing artist compensation for radio could be an important step towards a healthier marketplace for artist compensation on other platforms.
And third, because the radio loophole reinforces the pernicious notion that musicians are obligated to work for free because it’s “exposure,” an idea which many musicians find deeply frustrating no matter the context, but doubly so when its mandated by law.
Now, while the problem with this loophole is apparent, the path to fixing this problem is less clear-cut. Rep. Mel Watt (D -NC) introduced a bill last year, but he’s since been tapped for an executive branch post, so the bill’s future is unclear. Meanwhile, Clear Channel has actually been signing direct deals with certain labels (such as Big Machine and Warner Music Group) to offer performance royalties to those label’s rosters. Clear Channel is the nation’s largest broadcaster, and probably the most controversial—you may have noticed the company’s ongoing campaign to rebrand itself “I Heart Radio.” But those deals don’t represent much of an improvement.
Here’s why: these direct deals basically suck for the majority of artists and rightsholders not at the negotiating table, and they don’t represent a solution to a very real policy challenge. Interim Executive Director Casey Rae wrote an op-ed explaining why when the first of these deals was announced. But here’s the gist:
They suck because they create a situation where some performers get paid and others don’t. A real performance rights solution would allow ALL performing artists to get paid.
They suck because they fracture the marketplace, meaning that powerful labels have more leverage in dealmaking than smaller labels and self-released artists. A real solution would allow all artists to band together for collective representation.
They suck because the monies are collected by the label and could be be held against recoupable expenses, possibly subject to the vagaries of major label accounting before they make it to artists. A real solution would mean artists get paid their share directly by a PRO (as is currently the case with internet & satellite radio).
They suck because there’s no guarantee that backing performers end up getting paid. At the rally, bassist Melvin Gibbs gave the example of Vitamin C’s hit song “Graduation,” which gets perennial airplay at the end of the school year. As a session player on the song, Gibbs doesn’t earn a dime for radio airplay under US law, and and there’s no guarantee he would under a direct deal either. A real solution would set aside a flat percentage for backing performers the way that the digital performance royalty does.
They suck because they reportedly involve giving away a percentage of digital royalties in exchange for terrestrial performance royalties. A real solution wouldn’t ask artists to trade away compensation in the digital future to obtain fairness in the FM present.
They suck because by offering a lower payout (on digital) in exchange for on-air promotions, they could amount to a form of payola. A real solution would make the FM playing field more level, not less.
They suck because the terms of the deals are protected by non-disclosure agreements so we don’t really know what’s in them. The terms of a real performance rights solution would be transparent.
Finally, these direct deals suck because they don’t solve the problem of reciprocity, meaning those foreign monies due to US artists for foreign airplay still probably wouldn’t be able to get collected. A real solution would unlock that money and get it where it belongs: in artists’ pockets.
As I said that night at the rally, fixing it’s not going to be easy, and it’s unlikely to happen quickly. But we’re in it for the long haul, and we’re proud to be part of a growing coalition working together to make it happen.