Franz Nicolay has been all over the world- as a former member of World/Inferno Friendship Society, The Hold Steady, and Against Me!, he's sailed the seven seas and has braved at least six continents. But recently, he went where few dare tread: Washington, D.C.!
As a supporter of the Music First Coalition, Nicolay lobbied congress to change copyright law so that performers on sound recordings receive royalties during radio play. (As Nicolay points out, the only other major countries to deny performers this right alongside the USA are North Korea, China, and Iran!) Nicolay is a guy that knows what he's talking about so read his compelling explanation on why performers should get a cut of radio income, below.
Copyright law needs to be changed so that performers who appear on sound recordings receive royalties from radio play
Whatâ€™s this? I suppose youâ€™d call it an op-ed - thereâ€™s a big opportunity coming up whereby American musicians stand to make an extra $100 million a year, and I wanted to let you know about it. I understand that nobody likes to hear musicians talk about money, even when itâ€™s a legit issue (Lars was right!) But thereâ€™s a reason why manyâ€”most!â€”of the musicians we like quit doing it at some point, and itâ€™s not (only) because theyâ€™re out of ideas, itâ€™s because there are institutional barriers that keep music from being a sustainable career for grown-ass people. And it seems to me that as music fans that should be a concern. And as people who believe in fair play that should be a concernâ€”the issue is not that there isnâ€™t money in the music business. There is. As long as literally everyone in the country listens to some kind of recorded music, thereâ€™s money there. The issue is how little of it goes to the people who make it.
In this particular case, the big issues are twofold: performers donâ€™t get paid royalties when their recordings are played on the radio, and recordings made before 1972 arenâ€™t protected under federal copyright law.
What do you care? On May 11 I went to Capitol Hill with a collection of artists, along with the advocacy groups Music First Coalition (http://musicfirstcoalition.org), Future of Music Coalition (futureofmusic.org), and Content Creators Coalition (http://www.c3action.org/), to lobby Congress on behalf of the Fair Play Fair Pay Act (https://www.congress.gov/bill/114th-congress/house-bill/1733/text), which will come to the floor in the next session which starts in January.
Who came? The headliners were Roseanne Cash, T-Bone Burnett, one of the Four Tops, Joe Henry, and Rodney Crowell, but also included the head of the Nashville chapter of the musiciansâ€™ union, the co-head of Daptone Records, members of Antibalas, the singers from Cake, Soul Coughing, and Clap Your Hands Say Yeah, one of the guys who wrote â€œBreakfast at Tiffanyâ€™s,â€ Garth Brooksâ€™ pedal steel player, and a couple dozen others from various walks of musical life.
Buncha oldies and has-beens eh? Well, this is a little bit of the pointâ€”the music business runs on a constantly-refilled pool of young, semi-amateur musicians eager to do some touring, put out a record or two, and get some fans, who donâ€™t think too much about it as a career and melt back into regular lives by their late twenties. And in their first flush of success, most musicians donâ€™t spend too much time questioning the institutional structures, from a combination of naivete, not wanting to rock the boat, time and creative pressures, and a natural belief most people hold that theyâ€™re the exceptional artist for whom the laws of popular gravity donâ€™t apply. So it is often musicians in their mid-thirties or later who, once the first arc of their career trends down, take a hard look around and realize theyâ€™re staring down the barrel of several decades of slogging it out in the trenches, with a decade-long hole in their resume that prevents them from going back to a â€œrealâ€ job, and start asking real questions about the obstacles that keep musicians from a middle-class life.
For what? The Fair Play Fair Pay Act closes some egregious loopholes (http://www.musicfirstcoalition.org/fairplay_for_fairpay) in the ways musicians are compensated for terrestrial broadcast use of their recordings. So once again:
Performers donâ€™t get paid royalties when their recordings are played on the radio.
Huh? Itâ€™s true. Letâ€™s split broadcast royalties into four quadrants: songwriters, performers, terrestrial radio (AM/FM), and satellite/internet radio (SiriusXM, Spotify, etc). Three of the quadrants get royalties: Songwriters get royalties for play on terrestrial radio and satellite/internet radio, and performers, via SoundExchange, get royalties on satellite/internet radio (only on recordings made after 1972, which is another loophole (https://www.plagiarismtoday.com/2013/08/29/whats-the-deal-with-pre-1972-sound-recordings) this bill aims to fix). But performers donâ€™t get royalties when their recordings are played on terrestrial radioâ€”a $16 billion a year industry built on the backs of popular music recordings.
This affects many different kinds of performers:
- Performers who donâ€™t write their own material. This applies not only to famous cover songs (the Clashâ€™s â€œI Fought The Law,â€ Hendrixâ€™s â€œAll Along The Watchtower,â€ Jeff Buckleyâ€™s â€œHallelujah,â€ Joan Jettâ€™s â€œI Love Rock and Roll,â€ Johnny Cashâ€™s â€œHurtâ€), but to singers who are primarily interpreters, not writers. Think of Aretha Franklinâ€™s â€œRespect,â€ Whitney Houstonâ€™s â€œI Will Always Love You,â€ Frank Sinatraâ€™s â€œNew York, New Yorkâ€: none of them have ever received royalties for radio play. CD/LP sales, yes, but not radio playâ€”a distinction ever more important with the cratering of physical sales.
- Session musicians and hired guns. These are musicians who, while they may have come up with memorable hooks, never received more than their flat work-for-hire pay. Think Hunt Salesâ€™ drums on â€œLust For Life,â€ or Herbie Flowersâ€™ bass on â€œWalk On The Wild Side,â€ for which he only ever made his $50 session fee. This also applies to famous house bands like LAâ€™s Wrecking Crew, the Motown house band, or the Muscle Shoals rhythm section, who despite playing on hundreds of famous records, donâ€™t receive royalties.
- The other guys in the band. Most bands have a primary songwriter or songwriters. While some bands decide early in their careers to split songwriting credits equally (R.E.M., Radiohead, and U2 are prominent examples), most donâ€™t, with success, this quickly creates a class system within bands wherein the singer and guitar player, letâ€™s say, suddenly have big royalty checks coming in while the bass player and drummer are still trying to hold down bartending jobs. (So, for example, Danzig gets royalties when â€œWhere Eagles Dareâ€ is played on the radio, but the rest of the Misfits donâ€™t.) This is obviously a huge friction point in the longevity of a band. A royalty system that compensates all the musicians who create the sound on a popular record would go a long way toward alleviating this inequality.
- Older musicians. The standard answer for musiciansâ€™ complaints about the state of the industry is â€œYou just have to go on tour more.â€ (Iâ€™ve made that argument myself - http://indigestmag.com/blog/?p=7937) But there are many musicians who, for a variety of reasons, canâ€™t tour. For musicians outside the constrained musiciansâ€™ union framework, there is no 401(k), no retirement plan, and many of them have been freelancers whose life income has been outside the purview of Social Security pay-ins. So for aging sidemen without a regular gig, performers (think Motown or doowop vocalists, or country artists) who werenâ€™t songwriters, or any number of musicians whose health or other factors prevent them from touring, a performance royalty would be a valuable lifeline.
- Producers and engineers. This is a bit of a footnote, but producers and engineers have been a major part of how records sound at least since George Martin and Phil Spector, and this bill gives them a slice of royalties for radio broadcast as well.
Oh come on, Beyonce seems like sheâ€™s doing fine. There will always be a successful class of stars. There will always be an incoming class of semi-amateurs. But in between, like in so many other lines of work, is a squeezed and disappearing musical middle class. Many of these inequities used to be papered over by CD/LP sales. But the disappearance of that money, which isnâ€™t replaced by miniscule streaming royalties, has people taking a hard look at ways money that should go to musicians is siphoned off. Do we really want to live in a world where music can only be made by corporate pop stars on one hand and amateurs and part-timers willing to work for nothing on the other?
Are royalties for performers a normal thing? Yes. In fact, the United States is the only country besides China, North Korea, and Iran that doesnâ€™t pay performers royalties for broadcastâ€”not the kind of company one usually wants to keep, and one usually associated with policies like mass incarceration and the death penalty.
But itâ€™s more than that. Because the US doesnâ€™t offer a performance royalty, foreign royalty organizations refuse to distribute overseas royalties to American performers because we donâ€™t pay their performers for American airplay. The royalties for â€œRespectâ€ get collected, but they get spent in the UK instead of going to Aretha, because the US doesnâ€™t pay the Clash for â€œI Fought The Lawâ€ (Otis Redding and Sonny Curtisâ€™ estates, respectively, get paid in both cases.)
So an estimated $100 million a year in royalties that would go to American performersâ€”popular music is, after all, one of our most defining cultural exportsâ€”is channeled back into, say, European arts funding. Great for the squats, youth centers, and subsidies that make Europe a super place to tour, but better if it came home.
Soâ€”to use a personal exampleâ€”I can receive performance royalties for playing on Frank Turnerâ€™s England Keep My Bones, because it was recorded in the UK and I registered with the UK performance royalty organization PPLâ€”but not any of the more than 100 other records Iâ€™ve played on.
Whoâ€™s for it? Every presidential administration since Carter. The National Endowment for the Arts. The top copyright official of the government. Pandora and SiriusXM, who suffer competitively from the fact that they pay a royalty and their AM/FM radio competitors donâ€™t. The AFL-CIO and the NAACP, who see the current system as an exploitation of workers and African-American artists, respectively. Many more.
Whoâ€™s against it? The National Association of Broadcastersâ€”that is, big radio, ClearChannel and the like, who despite their $16 billion in profits based on selling advertising on music people want to listen to donâ€™t want to break off a piece for the musicians. The bill has carveouts and steep discounts for small broadcasters (public radio, college/community/non-commercial radio, religious stations will all pay between $0 and $500/year) and the National Federation for Community Broadcasters have endorsed it, so itâ€™s only the big corporate radio interests who are resistant. Their claim is that airplay serves as free publicity that translates into album sales. Itâ€™s like Netflix saying they have the right to air â€œThe Wireâ€ and only paying residuals to the screenwriters, since itâ€™s free publicity for the actors who can, you know, sell â€œBubblesâ€ T-shirts.
So is this thing gonna pass? Well, it failed in 2015, in the face of ferocious lobbying by corporate broadcasters. But the revised bill has important bipartisan support and has made for unusual bedfellows. The Congressional sponsors include representatives with important musical constituenciesâ€”Democrats Jerry Nadler (from New York) and John Conyers (Detroit) and Republican Marsha Blackburn (Nashville)â€”as well as powerful Republican Darrell Issa, who invented the â€œProtected by Viperâ€ car alarm system and holds several patents, and so is interested in intellectual property and royalty concerns.
My subgroup even sat down with Tea Party eccentric Louie Gohmert (http://www.slate.com/blogs/bad_astronomy/2016/06/01/texas_gop_congressman_louie_gohmert_seems_to_have_a_problem_with_gay_space.html) who, say what you want about his politics, was by far the most entertaining meeting of the day. In between stories about former Texas Congressman Charlie Wilson (of Charlie Wilsonâ€™s War fame) and Donald Trump (â€œIâ€™ve met Mr. Trump a few times. That hairâ€”itâ€™s like when youâ€™re talking to a woman and you can keep your eyes off her chest; I couldnâ€™t stop looking at it. Where does it come from? Where does it go?), said he was at least sympathetic to the bill, since he has a daughter who is an aspiring singer-songwriter in Los Angeles. He played us her video on his phone.
But the message was clear: musicians and people who care about music have to make themselves heard, because the opposition voice is a hugely well-funded industry with massive lobbying firepower.
Why should I care? Because itâ€™s a fundamental issue of fairness. Because itâ€™s rank exploitation of artists by a cartoonishly greedy corporate industry, the one that has eliminated independent radio and instituted robot playlists across the country. Because it affects the most vulnerable elderly musicians. Because itâ€™s one of a number of things that can help rebuild the musical middle class. Because we all know the myriad ways in which musicians get a raw deal, and this is one actually has a chance of getting fixed.
Email your support to your congressional representative here: http://www.musicfirstcoalition.org/take_action
Read more about the Fair Play Fair Pay Act: http://www.musicfirstcoalition.org/fairplay_for_fairpay
Future of Music Coalitionâ€™s infographic on how musicâ€™s money flows: http://futureofmusic.org/article/article/music-and-how-money-flows and their research on artist revenue streams, that is, where musiciansâ€™ incomes really come from: http://money.futureofmusic.org/
Franz Nicolayâ€™s book â€œThe Humorless Ladies of Border Control: Touring the Punk Underground from Belgrade to Ulaanbataarâ€ (http://www.powells.com/book/the-humorless-ladies-of-border-control-9781620971796) comes out Aug. 2 on The New Press.