Baiting the Pie
Last year’s hearings on music licensing at the House Judiciary Committee’s IP Subcommittee revealed an old argument from broadcasters and a new twist on that argument adopted by webcasters. We already pay for music–you people go fight over that pie.
This argument comes up in discussions of artist pay for radio play–what Rep. Jerry Nadler correctly identified as the “antebellum” practice of broadcasters stiffing artists, musicians and background singers on royalties for their work. It’s what we call “pie-ism” around MTP.
Tommy Merrill, Rep. Jerry Nadler, Blake Morgan, Janita
It goes something like this:
Broadcasters [and now webcasters, Spotify, digital retailers, etc.] pay for music, and we don’t care how the songwriters, publishers, performers and record companies divide that payment.
Also known as the fallacy of composition, the broadcasters equivocate on the word “music”. They mean to pay songwriters and artists combined what they currently pay to songwriters only. If they accept an artist royalty at all, what they are trying to get us to buy into is the concept of a pie for music on broadcast radio set at the current level of songwriter royalties. If broadcasters can no longer avoid payment altogether, they run to the Congress to divide the songwriters pie among all creators on recordings. Broadcasters would like to get the artists fighting the songwriters over the terrestrial pie, thus weakening both groups. And hopefully put off paying artists at all for another session of Congress.
But some Members know this for what it is.
Tommy, Blake, Rep. Ted Deutch, Janita
We Understand the Pressure
The other fallacy that broadcasters are pushing is that paying artists for radio play is a “tax” instead of restoring rights taken away by Congress. See the House and Senate Concurrent Resolution, “Supporting the Local Radio Freedom Act” recently re-introduced by a host of broadcast industry backed Members of Congress and Senators:
Senators Oppposing Artist Pay for Radio Play: Barrasso (R-WY), Heitkamp (D-ND)
House Members Oppposing Artist Pay for Radio Play: Conaway (R-TX); Gene Green (D-TX), Walberg (R-MI), Hudson (R-NC), Chabot (R-OH), Dent (R-PA), Pompeo (R-KS), Long (D-MO), Whitfield (R-KY), Hurt (R-VA), Cramer (R-ND), Farenthold (R-TX), Young (R-AK), Turner (R-OH), Sarbanes (D-MD), Calvert (R-CA), Neugebauer (R-TX), Salmon (R-AZ), LaMalfa (R-CA), Gibbs (R-OH), McKinley (R-WV), Royce (R-CA), Pittenger (R-NC), Ryan (D-OH), Rangel (D-NY), Schrader (D-OR), Loebsack (D-IA), Luetkemeyer (R-MO), Fortenberry (R-NE), Wilson (R-SC), Poe (R-TX), Thompson (R-PA), Ross (R-FL), Crenshaw (R-FL), Lance (R-NJ), David Scott (D-GA), Cook (R-CA), Jordan (R-OH), Benishek (R-MI), Kline (R-MN), Crawford (R-AR), Kinzinger (R=IL), Ellmers (R-NC), Abraham (R-LA), Ryan (R-WI), Mr. Rogers (R-KY), Barton (R-TX), Kuster (D-NH), Yoder (R-KS), Harris (R-MD), Davis (R-IL), Messer (R-IN), Kind (D-WI), Kaptur (D-OH), Keating (R-MA), Flores (R-TX), Wilson (D-FL), Hinojosa (D-TX), Veasey (D-TX), Tiberi (R-OH), Renacci (R-OH), Butterfield (D-NC), Hurd (R-TX), Hastings (D-FL), Gibson (R-NY), Coffman (R-CO), Jolly (R-FL), Capuano (D-MA), Byrne (R-AL), Fitzpatrick (R-PA), Rogers (R-AL), Massie (R-KY), Lynch (D-MA), Bilirakis (R-FL), Visclosky (D-IN), Mr. Roskam (R-IL), Granger (R-TX), Womack (R-AK), Collins (R-NY), Frelinghuysen (R-NJ), Bishop (D-GA), Hartzler (R-MO), Foxx (R-NC), Sessions (R-AL), Duncan (R-TN), Courtney (D-CT), Rokita (R-IN), Cole (R-OK), David Joyce (R-OH), Hultgren (R-IL), Gosar (R-AZ), Mulvaney (R-SC), Walden (R-OR), and Mullin (R-OK)
It’s important to realize that these concurrent resolutions are non-binding on the members who co-sponsor them and are not legislation per se, meaning that a resolution is simply a method–some might say a lobbyists ploy–to express the sentiment of the sponsors. In this case, what the National Association of Broadcasters wants everyone to believe is that because they convinced a number of Members to sign on as co-sponsors, that means that those same Members will also vote for legislation denying artist pay for radio play at least for “local radio”.
This, of course, is bunk. As one senior staffer recently said, it’s doubtful that most of the Members even understand what it is they signed up for.
How does a Member of Congress get their name on this list? Let’s ask the National Association of Broadcasters.
So we know that it’s highly likely that each Member of Congress on this list “completed a questionnaire and interview” and that they “demonstrate understanding of the broadcast industry”. Any artist who’s been played on the radio understands all about that, too. Not to mention the implied threat of how the broadcasters will use their radio license to get even if you cross them. That takes real courage for a Member to stand up to the broadcasters and the special interests.
Blake, Rep. Doug Collins, Tommy, Janita
We’re sympathetic–we know just how persuasive these broadcasters can be. Just ask artist Jann Arden who had all her music pulled from a major radio network of over 100 stations because she stood up to the broadcasters and the special interests by speaking up on social media:
From: Steve Jones
Sent: Thursday, August 7, 2014 10:41 AM
To: Trevor Wallworth; Myles MacKinnon; Kurt Price; Daryl Stevens; Dan Youngs; Curtis Bray;
John Roberts; Paul Kaye; Al Tompson; Corey Tremere; Adam McLaren; Jeff Murray; Mike Campbell;
Josie Geuer; Abbey White; Rick Tompkins; Brad Michaels; Kate Buick; Jackie Greening;
Melanie Sampson; Steve Parsons; Jay Bedford; Stuart McIntosh; Taylor Jukes; Christina Fitzgerald;
Stu Ferguson; David Larsen; Troy McCallum; Paul Parhar; Casey Clarke
Cc: Jessop, Paul
Subject: Jann Arden
Please remove ALL music by Jann Arden from your playlist immediately and permanently.
Her antagonistic and pissy social media comments about our company are a clear statement that she doesn’t need our support. She’s a superstar without radio support.
And you know who stood right behind Jann Arden and her fans? Her label–which is the way it should be.
Yes, we understand just how persuasive broadcasters like Clear Channel can be to all you Members who got a “questionnaire”–which is subject to the disinfectant of sunshine. We understand that once you get in bed with these guys, it’s really hard to get out. You’ll never hear about the recording artists who will be threatened in the back alley if they oppose the NAB, a threat so real it doesn’t even need to be said.
It’s More Like 100 Years, Not 80
But a point of clarification: The Local Radio Freedom Act contains a misleading statement. The bill says that radio and the special interests have been getting away with it for “more than 80 years”. That’s not a very honest statement any more than it’s honest to say I’m thinking of a number that’s greater than 10 when the number you’re thinking of is 1,000,000. It’s not a lie, but it’s not very truthful.
Radio’s free ride on sound recordings started with the first AM radio broadcasts in 1920 and they’ve been lobbying against artist pay for radio play ever since. Not only that but Congress has refused to grant sound recordings an equal performance right to that accorded to songs ever since the 1909 revision of the Copyright Act. Here’s the language from the Local Radio Freedom Act, truthiness personified:
Whereas for more than 80 years, Congress has rejected repeated calls by the recording industry to impose a performance fee on local radio stations for simply playing music on the radio and upsetting the mutually beneficial relationship between local radio and the recording industry [a/k/a “the $50 handshake”];
So artists haven’t been paid on broadcast radio for either 95 years or 105 years, but not 80 years. Let’s split the difference can call it 100. And that 20 years means a lot, particularly when it’s your money or when it was your artist parent who died during that 20 years and never saw a nickel.
Crony Capitalism on a Grand Scale
So that 80 years is wrong for starters–it’s well over 100 years for the artists–not just the “recording industry” which implies the big bad RIAA. For over 100 years, artists have been subjected to what Red State‘s Neil Stevens calls “a massive giveaway to big, well-connected media companies, at the expense of their competitors as well as individual musical performers.” So let’s at least get some facts right.
The NAB’s resolution to Support the Local Radio Freedom Act also wants to confound compensating artists for their work with a “tax”. Obviously, a royalty is not a “tax,” but calling a royalty a tax makes it sound like something sinister rather than simply fair compensation to artists for the property right in their performances. This property right is recognized in the US for digital performances and in practically every other country in the world. But for 100 years, the property right has been taken away from artists with no compensation. And the broadcasters want us to believe that a royalty is a tax.
Just because they call it a tax doesn’t make it one. And even if they did, what is worse than a tax is a taking. That’s right. I see your tax and I raise you the takings clause of the U.S. Constitution. Think I’m wrong? Ask Professor Richard Epstein what he thinks Mr. Cato.
Yes, the broadcasters think we are that stupid. And frankly, having put up with this for over 100 years, so who can really blame the broadcasters for thinking we are chumps.
But it turns out that not all Members of Congress took the bait. It turns out that some Members of Congress are better than that.
Tommy, Blake, Rep. Marsha Blackburn, Janita
The Good News is You Don’t Have to Take the Bait
The good news is that we saw a change in the weather on this issue last year with multiple Congressional bills being authored under the good offices of the long-time champions of fairness like Rep. Conyers and Rep. Nadler as well as Chairman Goodlatte, Rep. Holding and many others. Not to mention the sustained effort by MusicFirst as well as Blake Morgan and the #irespectmusic team.
Janita, Rep. Judy Chu, Blake, Tommy
But here’s the catch that should not be overlooked. The Digital Media Association has essentially adopted the broadcasters’ line, applied it to digital media, and is pushing pie-ism to the front of their arguments against performance rights. DiMA would like to get the songwriters fighting the artists over the digital pie, thus weakening both groups.
What the broadcasters and the webcasters want is for us to fight over the pie and not to fight them to make the pie bigger for all creators.
Tommy, Blake, NMPA President & CEO David Israelite and Janita
Realize this though–all artists and creators are in this together.
The DiMA members like YouTube, Amazon and Apple don’t just deal in music. Yes, the eponymous Digital Media Association members also deal in “digital media” such as television, visual images, motion pictures, and books. Their sudden interest in pie-ism foreshadows the next round in this battle: one pie for all “content”. (If you remember the ISP licensing enthusiasts, this was essentially what they were arguing in favor of.)
So photographers, graphic artists, illustrators, authors, actors all listen up: Pie-ism is coming to a digital service near you. Fight it now or fight it later, but it is coming.
Rep. Jerry Nadler at #irespectmusic event at The Bitter End, NYC
Rep. Jerry Nadler recently warned the music business about this (see Ben Sisario’s post “Rep. Nadler to Music Industry: Get It Together on Copyright Issues“):
“I implore you,” Mr. Nadler said… “When it comes to legislation, the issues are too important and the opposition too powerful for you to win as a divided community.”
He added: “If the industry is not united it will not be well represented or able to participate adequately in the discussions going on in the halls of Congress. These discussions are going to happen with or without you.”
Rep. Nadler knows exactly what he’s talking about and we should take him very, very seriously. We’ve been fighting amongst ourselves for years–I’ve often said that being in the music business is like having dinner every night with the same five crazy uncles.
But this year let’s try something new. Let’s keep our disagreements amongst ourselves. Let’s fight publicly against the right people–the people like YouTube and Pandora who sue us and stiff us while enriching themselves in the public markets. And respecting artists starts at home.
And speaking of homes, Tim Westergren has a 13 bathroom house. Let’s give him something to think about. This is the time to make it happen, this is the year to push through artist pay for radio play. Shall we take inspiration from the words of Rep. John Lewis? If not us, then who? If not now, then when? If not here, then where? Are we going to just say the words, or are we going to act? We know what must be done. The trick is in the doing.
Let’s not screw this up. Fight for yourselves, and fight for those who can no longer fight for themselves. We lost so many last year. This is bigger than just the living.
100 years is long enough.
Lesley Gore 1946-2015
You’re going to hear a lot about the great work that the #irespecctmusic team is doing this week in Washington, DC to rev up the Congress again in the new session about getting artists paid for radio play. That’s really important, make no mistake, and we’re going to devote some ink to that for sure.
But I spoke to Blake today and he shared something very special that happened and it got him just as excited as meeting the powerful.
Blake, Janita and Tommy Merrill (who will need no introduction to MTP readers) spoke today about #irespectmusic at the Georgetown Law School to a room full of students. And something really special happened–it turns out one of the students is doing their honors thesis about the #irespectmusic campaign.
The team was just so excited that what they were doing inspired a student to devote a lot of their time and…their grade!!…to the cause. I mean, how cool is that?
Pretty cool, man.
When we see Google getting hundreds of millions of takedown notices for links to unlawful material in search alone, not to mention getting called out by the governments of France, the UK and even–to an extent–the US for hosting jihadi recruitment videos on Google’s flagship video platform, you have to ask why don’t they fix these problems? Is there something so defective in Google’s search algorithm or YouTube’s filtering systems that simply can’t be repaired? Do we have to just suck it up?
Actually, the answer appears to be yes. It’s pretty safe to say that Google is constantly working on changes to its search algorithm which one has to think is fairly characterized as Google’s core asset (see, e.g., Wikipedia entry on Google’s Penguin updates). So it’s not like these problems have caught them by surprise. Google could have fixed the problems but the teams of engineers working on the algorithm haven’t fixed the issues despite having received 345 million trouble tickets. Not to mention a pretty much unlimited budget.
Why might that be, do you think?
Maybe they don’t think these are problems. What if the Google algorithm is working according to plan.
Maybe Google executives see nothing wrong with the quality of search results. Maybe they don’t see anything wrong with the videos being distributed on YouTube. Take this video of “the Mujahid Sheikh Ibrahim Al-Rubaish” for example:
Ibrahim al-Rubaysh is the spiritual leader of Al Qaida in the Arabian Peninsula (AQAP). He was held in extrajudicial detention at Guantanamo Bay, then escaped after the US permitted his repatriation to Saudi Arabia in 2006. A YouTube search for his name returned this:
This is one AQAP leader–just one. 412 videos in a monetized search result courtesy of sureinsure.com. I wonder if sureinsure.com knows the sainted Google advertising algorithm is serving up their ads for searches on a jihadi sheikh? As any music licensing person knows, Google doesn’t share the revenue on YouTube search pages with anyone, so this is all on Google.
And this is the issue–do the advertisers have any idea where their ads are being served? Could Google’s systems pass the kinds of tests of internal accounting controls required by the laws that protect stockholders from companies making money in sketchy ways? You know, the laws passed after the Enron scandal? And given Google’s appetite for litigation, would any of these advertisers be in a position to protect themselves or seek refunds from Google? Not without the help of law enforcement officers like the scrappy Mississippi Attorney General Jim Hood, the immensely popular Mississippi Democrat who National Journal describes as “a fighter for the little guy” and who is not afraid to stand up to Google and other mega-multinational Leviathans.
A growing number of lawmakers around the world are taking a closer look at the responsibilities of social media in general and Google in particular. For example, here’s a screen shot of a video from the “Jund al-Aqsa” (JAA) channel that was called out on the floor of the UK House of Commons by Diana Johnson, a leading Labour MP, who had quite a lot to say about Google’s involvement with jihadi recruiting.
I seriously doubt if Disney Parks or any of these other channels had any idea their YouTube traffic was coming in part from jihadi videos, particularly if they are ad supported. Which means that part of their revenue was being driven by jihadi videos.
The truth is that “social media” platforms are contributing mightily to the spread of the jihadi propaganda as we hear on a daily basis now. What we don’t hear is how these social media platforms profit from the propaganda from it to one degree or another. Can Facebook say with certainty that ISIS hasn’t ever boosted a post? Does Google have any idea who they are sharing revenue with on these channels?
As Ms. Johnson told the House of Commons:
A very brief look at what was available on social media enabled me to come across deeply offensive and worrying videos and tweets. I am very pleased that we are proscribing the organisations that produced them, but I think that the Minister should bear in mind that social media companies are making such videos and tweets available for everyone to see, and consider what more can be done about those companies.
It’s not just the UK. France is hoping to make internet companies such as Google and Facebook accountable for social media posts promoting terrorism, Bloomberg reports.
The French government is mounting pressure on web companies to take responsibility for online hate speech as the nation battles against extremist groups in the wake of the Charlie Hebdo massacre.
Bloomberg reports that President Hollande spoke in Paris on Tuesday about a new law that would make internet operators “accomplices” of such offences — making a racial statement is a crime in France. A draft of the legislation could be made next month and challenges messages across social media platforms.
The president was talking at a memorial for Jews deported in World War II. He said that social media sites “can no longer close their eyes if they are considered accomplices of what they host,” and added: “We must act at the European and international level to define a legal framework so that Internet platforms which manage social media be considered responsible, and that sanctions can be taken.”
Let’s be clear–I’m not saying that Google seeks out these videos. I’m saying that if they didn’t want the videos to be there, they have the means and the ability to keep them off, and they certainly have the capability to not monetize the jihad.
But they don’t. And that’s just the way it is.
In case you haven’t noticed, Billboard and The Official Charts have begun including streaming in measuring chart ranking. Now think about that for a minute–in a world where artists like Taylor Swift are windowing with great success how can you ever think that it’s a good idea to use streaming as a way of measuring success? There’s deeper reasons for why streaming is at best a premature but even if you don’t have time to think about the deeper reasons, the mere fact that it is becoming increasingly obvious that streaming can be a null set for an increasing number of artists would make you question that wisdom.
As Beggars Group CEO Martin Mills said in a must-read recent speech (“MARTIN MILLS: NEW BILLBOARD CHART RISKS DUMBING DOWN MUSIC“):
Generally speaking, independent labels work principally with album artists, the majors, since their main marketing tool is airplay, primarily with artists capable of having hit singles. I’ll acknowledge this is a huge generalisation, but I believe, fundamentally, that today it holds true. The biggest artists of course straddle both worlds [both singles and albums].
This can be seen most clearly in comparing an artist’s track sales to their album sales. An artist like The National will sell pretty much 1:1 tracks to albums, a pop artist maybe 15:1. That’s an enormous differential in customer purchase preferences.
I think this two-sided world is healthy, good for music, good for the consumer. It creates a diverse musical climate, because not all artists are running the same race.
But I am really concerned that there are forces at work that wish to destroy this, to create a lowest common denominator musical landscape.
In the USA it’s already started to happen, with the Billboard consumption chart, that combines album sales, streams, and track sales. In other words, it aggregates and averages out the two types of artist I’ve identified.
That will mean that the big artists look and get bigger, and the more niche artists of the album world get swamped, and side-lined, starved of exposure.
I have no objection to including streams in the chart, as long as – and it’s a big but – fans that are streaming albums as a whole are separately identified. So the albums chart should include album streams, and the singles chart should include track streams.
But including tracks with albums mixes apples with pears, and fails to chart anything meaningful other than sheer brute size.
It may well be in the interests of the small number of super-consolidated major labels to make the big become bigger, and appear to be even bigger; but I believe it’s fundamentally against the interests of the rest of us, since it will reduce the oxygen available for exposure for artists whose natural format is the album.
That reduction in exposure will, I believe, lead inevitably to the decline of the album, and a curtailing of the ability of the non-pop-single artist to make a living from their art.
As usual, Martin Mills puts his finger right on the problem and has pointed to the systemic flaws in the streaming world that is rapidly hollowing out the music business from the inside. Like his insightful speech at Canadian Music Week last year, this one is a must read for any thoughtful follower of the music business.
Originally posted on The Trichordist:
We’ve got data. Lots of data. We have two different consumption surveys of college students and one of the broader population. We’ve also got the details of 2014 digital revenues from a moderately sized independent catalogue.
We’re gonna show you our data all this week.
This is not pie in the sky projections from the VPs of “digital” at your record label or distributor. This is what is really happening. You know you can’t trust these digital executives, right? They are objectively and demonstrably wrong. We suspect they are now just making shit up to try to cover their asses (or looking for jobs at the streaming services.) Who will be the first executive to lose their job over the streaming fiasco?
Here’s todays installment:
According to our detailed examination of a moderately sized labels digital revenue, it appears that free Spotify pays less than a tenth of…
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When the years have done irreparable harm
I can see us walking slowly arm in arm
Just like that couple on the corner do
Girl, I will always be in love with you
When I look in your eyes
I’ll still see that spark
Until the shadows fall
Until the room grows dark
Then when I leave this Earth
I’ll be with the angels standin’
I’ll be out there waitin’ for my true companion
From True Companion by Marc Cohn
I have always believed there is no human loss greater than the loss of a spouse. Parents, of course, will immediately disagree, but that’s OK. When you have struggled through tough times together and prevailed, every close call reminds you of how indescribably dear your spouse is.
It’s also a reminder of the inevitability of having to take on life alone for one of you because one of these days your determination will be overcome. You know the high probability of this going in, but it doesn’t resonate in your bones the way it does after the challenges of time give your family a good working over. The best the both of you can hope for is to postpone that day as long as you can. It is the dilemma of commitment.
Our thoughts are with Zoë Keating and her family. If yours are too, you can send her condolences or a donation at her artist site.