Performers don’t get paid for radio play, even if writers do. Billy Corgan – yes, the Smashing Pumpkins Billy Corgan – is getting in on the issue, testifying to Congress. So should you be on Billy’s side, or the broadcasters? That’s a trickier question. Photo (CC) Andra Veraart.

Policy, intellectual property, and changing business models remain hot threads to follow on this site as we watch the transformation of music distribution in the electronic age. This time, we welcome a new contributor to look inside the issues. Surprise: one radio host sides with the record industry, and the issues may not be as clear as you think. Jo explains. –Ed.

Imagine this:  A track from your new record is being played out on the radio — nonstop. All the major indie stations in Los Angeles, New York, Chicago, Miami and Atlanta have picked it up. At this point, I’m sure you’ve already ordered a fancy synth that you plan to pay for with your big check. But there is a problem: You did an acoustic version of Jimmy Edgar’s “My Beats.” So who gets paid? Jimmy Edgar. Guess who does not get paid? You!

The Performance Rights Act is a bill before the US Congress that would require terrestrial radio stations to pay royalties to the performer of a track. It is being supported by artists like Billy Corgan (who recently testified on behalf of the artists’ rights group, the musicFIRST coalition) Don Henley, Jay-Z, Billy Idol, as well as the Recording Industry Association of America (RIAA). Aside from the issue of “fairness,” the United States is one of the few countries that does not require payment to the performing artist when her track is played on the radio.

Celia Hirschman, host of “On the Beat” on Los Angeles’ KCRW public radio, a broadcast on changes and trends in the music business, says she agrees with the act. (Celia notes these are her personal views, and do not necessarily reflect the position of KCRW.)

“For decades, the laws have favored a free license to play artists’ music on radio,” says Hirschman. “This was ratified by Congress and basically accepted by all concerned…This free pass no longer makes any sense, especially for commercial radio. A reasonable compulsory license fee for all radio, with lower rates to non-commercial is an equitable solution for artists and labels.  Commercial radio stations earn their income by selling advertising because of their programming content.  It’s only fair that the content providers are compensated.”

“This free pass no longer makes any sense.”

Celia Hirschman, host of “On the Beat” on KCRW

Opposing the bill is the National Association of Broadcasters (NAB) who claim the legislation amounts to a “tax” and will force many radio stations to go bankrupt. Additionally, opponents of the bill point out that many artists were first discovered because of radio exposure, which translates into sales (ticket sales, album sales and merchandise) and promotion of their brand. If the station goes under, so does the performing artists’ potential income.

Dennis Wharton, EVP of NAB, claims that the RIAA “relies on cherry-picking international examples that paint a distorted picture of copyright law.” “The US protects sound recordings for 45 years longer than Canada and many countries in Europe, says Wharton. “If it’s “international parity” that RIAA is looking for, they ought to examine the entire landscape.”

In fact, the international landscape is not equal.  Many countries in Europe run stations owned or subsidized by government funding. The foundation of our copyright laws are different as well. In the United States, we use the term “copyright” whereas many European countries use a term equivalent to “author’s rights.” “Copyright” reflects an attitude that is concerned with the restriction of uses for economic reasons, whereas the term “author’s rights” reflects an attitude that is concerned with the extension of the author’s intellect and self.

“Fair” or not, the bill may not make it into law for logistic reasons. And the broadcasters are backing their own, more radio-friendly competing bill. Capitol photo (CC) Jonathon D. Colman.

I recently spoke with Brian Lee Corber, an IP attorney who has closely followed the Performance Rights Act. In his opinion the bill will not pass. “Collecting royalties for the songwriter is already inaccurate; it’s based off of surveys. Logistically, collecting royalties for the performer is even more complicated…what happens when the performer is an orchestra?” Corber feels this logistical nightmare may make it difficult for the legislature to justify passing this bill.

As a reaction to the Performance Rights Act, NAB is backing the Local Radio Freedom Act which calls for no tax or fee for the performance of a sound recording on the radio. As of March 24th, 9 more lawmakers signed onto the Local Radio Freedom Act, making the total number of co-sponsors 158.

For More Information:

Music First Coalition: www.musicfirstcoalition.org

National Association of Broadcasters: www.nab.org

KCRW: www.kcrw.com/etc/programs/ob

Sources:

Dougherty, F. Jay. Copyright Law Class at Loyola Law School, March 24, 2009.

“Mr. Corgan goes to Washington for a Bigger Piece of the Radio Pie”

http://blogs.suntimes.com/derogatis/2009/03/updated_mr_corgan_goes_to_wash.html

“NAB disputes RIAA Claim Ahead of Performance Rights Hearing”

http://radioink.com/Article.asp?id=1206143

“NAB, musicFIRST go Head-to-Head on Royalties”

http://www.fmqb.com/Article.asp?id=1235167

“Smashing Pumpkins Singer, Billy Corgan Testifies Before Congress”

http://www.opposingviews.com/articles/news-smashing-pumpkins-singer-billy-corgan-testifies-before-congress

Los Angeles-based CDM contributor Jo Ardalan is the Managing Director and Founder of Fixed Noise, a community-based company specializing in audio software development, artist management and business development in tech and entertainment.

She’s a veteran of Waxploitation and Native Instruments, an experienced sound designer and engineer, and consultant.

And she has a Reaktor tattoo.

  • Armando

    Brian has a point. If this bill were to pass it will be a huge mess! That sucks..

    I feel smarter now, great article peter! Should spark a good debate.

  • Sanfoin

    It doesn't have to be complicated. Why not just consider an orchestra, and likewise a band, as a single entity?

    If there is a debate over this legislation, it should be not over whether performers should be paid for radio play, but how. I take it as a given that they should.

  • http://www.createdigitalmusic.com Peter Kirn

    Oh, it's definitely a debate, because of the fact that the writer / performer are broken down separately in all rights collection across the board (not just for radio).

    I am suspicious about that orchestra comment, though. Of course, you can ask half a dozen IP lawyers and get half a dozen different answers (all with the caveat that their comments aren't officially legal advice) — it's the nature of legal interpretation. But I'll be interested to hear if someone disagrees with that, or if he's in fact right given the way the text of the bill itself is drafter.

    I'd say from the number of cosponsors lining up behind the broadcasters that the wind is blowing their way — even more so given that they have the advantage of the status quo on their side.

    We'll cover this — keep the comments coming.

  • http://www.keyofgrey.com KeyOfGrey

    I also believe that, whether this new law is right or wrong, it will not pass. As Mr. Corber states, the process is not particularly fair for the way songwriters are paid even now. The survey that Mr. Corber refers to, at least in Canada and I'd imagine it's the same in the US, is selected by the licensing rights body, and only songs played during that survey period receive royalties for the whole licensing period.

    While you'd think that in this digital age, a track list of songs could be easily generated so that all artists played would receive a share of the royalties, this is not the way it works unfortunately. If your song is played, but not during the survey period, you won't get your share.

    If this law passes, there will be more pressure to tear down the whole performing rights system to be better managed, and better accounted for. As it is, it's not really equitable, and imagine if they need to account for double the artists they're dealing with now (the songwriter + plus now the performer). No one is going to want to put in that work unfortunately.

  • rjk

    sigh… another attempt at a short-sighted cash grab.

    Yes, radio stations make money from the recording industry's content. But, in return artists are able to get levels of exposure they would otherwise not be able to get.

    IMO, all licensing fees do is make it more difficult for more radio stations to survive.

    Where would the recording industry be without radio?

    Where would the record industry be if it embraced radio, YouTube, internet radio rather than continually demanding payment for the use of their content?

    It's not like the benefit of Radio and YouTube isn't immediately obvious to anyone with a brain. Exposure is good… more exposure is better…

    Why doesn't the record industry make it easier for Radio, online radio and video services to give artists more exposure?

    It's one thing to put on a dog and pony show with artists whose career are well established or over. But if you are a young and/or struggling artist do you really want your industry representatives limiting or expanding your opportunities for exposure.

    I'd be curious what a more representative sampling of artists have to say rather than trotting out one or two of the lucky few, like Billy Corgan.

    If the collection agencies were more transparent.

    If the collection agencies were more accurate in their payments.

    If radio stations were able to opt out by playing only artists who opt out.

    Then maybe… just maybe, I'd be a little more open to licensing fees. But in the long run, I believe licening fees do more harm than good.

  • David Cake

    It is another one of those things were much of the debate will consist of people in the US claiming that particular problems are disastrous or insolvable, despite many other nations having solved them happily and relatively easily. Performance rights organisations are quite capable of solving the logistics issues, most of which are nowhere near as bad as presented, and surveys actually work pretty well as a tool for collecting data, as the information is a power law sort of deal — artists who don't show up on surveys are those who would get an insignificant amount of cash anyway.

    A particularly nice feature of the Australian system is that non-commercial public access broadcasters, at least those with a small enough income, participate in the surveys, but don't pay the fees, so it the system doesn't hurt small independent stations (apart from a modest administrative workload – I filled in these surveys many times as a community radio station DJ), but does help independent musicians who don't get much radio airplay.

  • Music Fan

    RIAA's agenda:

    1) Exploit musicians for 80 years — CHECK

    2) Refuse to adapt to digital technology — CHECK

    3) File lawsuits against college kids and grandmothers for downloading music — CHECK

    4) Strike a deal with ISPs to spy on downloading trends of users — CHECK

    5) Bankrupt artists number one promotional vehicle, free radio airplay — check?

  • James DS

    The point about international parity is fair, though. In the UK public performance royalties are payable by radio broadcasters, and have been for a long, long time. Some of the money is routed directly to performers, and some goes via the labels to the performers.

    The NAB spokesman says that copyright terms are longer in the US than the EU, and that is technically right at the moment but there is a proposal to extend the EU term from 50 to 70 years which looks likely to be passed.

    The UK is the most direct comparison because continental Europe does have a different philosphical approach to copyright. Comparing the two, UK commercial radio has been able to pay this licence for decades. Yes, it is complex to administer but there is a collecting society PPL (www.ppluk.com) that exists to do so, and seems to be successful in that regard.

    In any event the current situation discriminates against online services (as royalites are payable for public performance of sound recordings on the internet at present) so, as long as the rates are not disasterously high I can't see the justification for no payment.

  • http://stretta.com Matthew Davidson

    The idea to collect for writers only is severely outdated. Recorded music has changed a lot in the ensuing years.

    Keep in mind they're talking about terrestrial radio. Satellite radio already pays royalties to both artists and writers.

    This money goes to artists. It is unfair to paint it purely as a corporate money grab.

    I still believe recorded music has utility and value. If you use and enjoy recorded music, the creators deserve to get compensated. In the past, 'use' meant buying a recording, and radio got you to go out and buy it. Today, it isn't so clearly defined. Use is less ownership and more, well, 'use'; radio, streaming, subscription, recording, youtube whatever. So, when do artists get paid for recorded music? Please spare me the tshirt/tour model which only applies to a narrow sliver of recorded music and assumes that all recorded music is intended to translate to the stage.

  • AA

    I wish that instead of focusing on dying radio folks would look at making a logical music podcasting licensing scheme that actually allows DJ mix shows to exist. I've been trying to get my niche electronic music show off the ground for the past few weeks… but I can't heavily promote because of my (somewhat realistic) paranoia over the various collections agencies going after me. BTW if someone replies back with a snarky comment about Creative Commons, well I have already considered that. The truth is that there is not enough good music in the particular genre niche (broken beat) with a CC license that pretty much I am left with not wanting to do the show at all.

    So here I'm stuck between paying ASCAP/BMI plus the labels for mechanical, blah blah blah (not feasible)… Playing Podsafe (playing music that I don't want to play)…. or dying from obscurity…

    Fuck. This needs to be sorted out moreso than Radio.

  • Rex Rhino

    What people don't seem to get is that copyright is a *PRIVILEGE* (not a right), granted to *PROMOTE CULTURE*!!! The idea was that granting an artist/writer a brief monopoly would help them recoup some money, and soon enough it would all go into the public domain. It wasn't supposed to be a lifetime meal ticket for you and all your heirs.

    Clearly, these kinds of legal restrictions are design to grab as much cash as possible, not to promote a rich and vibrant culture.

  • http://www.createdigitalmusic.com Peter Kirn

    @Rex: Sorry, that's nonsense. By the same argument, basically anything from our legal framework could be viewed as a privilege rather than a right. Anyway, you're dodging the question — the question is what makes sense here legally.

    I just don't see painting this as corporate greed, either; we're talking fairly nominal payments to *performing artists* which right now are restricted to *writers*. So let's not get carried away here — this is NOT a fundamental question of copyright, because those laws are set, and quite frankly I think it should be the rights holder who decides what to do. (You want your work in public domain? Do it! Terrific! But that doesn't give you the right to tell others what to do.) We're talking a fairly narrow legal question and a matter of what policy balances the interests of both the broadcasters and the performing artists.

    I just find it interesting that there's a broadcaster who does business analysis who's taking the side of the artists on this one. I think there should be a vibrant debate. Of course, we can focus instead on meaningless, sweeping generalizations if you like.

  • AA

    I have to disagree with you Peter… but perhaps not as strongly as Rex. I don't believe the art that we put out into the public is ours to own and control forever or even in a lengthy period of time (the French model)… I believe that the US should go back to the classical American copyright approach which is a balance between the needs of the individual artist and the needs of society at large. I think that what gets non-artists and libertarian-minded artists such as myself angry about current copyright laws is the squashing of the ideas and conventions of the non-artist society as a whole in favor of the wishes of a few cadre artists who claim that their wishes for their art trump everyone else’s every time. I don't believe in copyright anarchy… but let's have a system where artists get paid, and everyone else can do whatever they want with the artists work in exchange (remix, redistribute, etc.)

    I think there’s a fair balance that we can work towards rather than our current schizo system that punishes everyone except those that benefit from a cloudy paranoid legal environment (lawyers, large media, big-name artists).

  • Justyn

    Im not completely clear on the ins and outs of the scheme, but in New Zealand , where im from, we have a thing called the recording artists and producers (RAP) fund. This is paid in to by venues, radio etc and then distributed amongst its members…anyone can join and reports are submitted to work out who gets what. Its for the performers of a work, not the writers. Does america have a scheme like this and if not maybe this would be a better alternative? Or maybe i have totally missed the point…More info…

    http://www.rianz.org.nz/rianz/print-rapfund.asp

  • http://www.createdigitalmusic.com Peter Kirn

    @AA: Well, right, that's your argument to make. My point it that it's an essentially irrelevant discussion here. The question here isn't whether the works are copyrighted, the term of that copyright, or even whether fees are collected — all those things happen. The whole point is that one group (writers/publishers) collect fees while another (performing artists) does not. And it's something that's exclusive to US radio; it's not the case — as Justyn points out — in places like New Zealand.

    Also, no matter how draconian one group of copyright holders gets, how does that squash the ideas of everyone else? To me, part of the whole appeal of things like Creative Commons (ahem, sitting right below me) is that if you don't agree with this more restrictive regime, you're free to contribute your work elsewhere, and to draw upon that body of work. That's not to say I'm not an advocate of some sort of doctrine of Fair Use — that has absolutely gotten out of hand.

    Anyway, the system you're talking about — in which artists get paid — that's the whole point here, the collections scheme. This doesn't exclusively benefit lawyers (actually, doesn't benefit lawyers at all), large media, or big-name artists — though it is going to make a bigger difference if you're an artist getting lots of plays, even that could be, say, a remix or cover from an indie artist. Under the current system, they don't get paid at all.

    Copyright is one issue, and worth debating. Performing rights and collection of fees is a different issue.

  • http://corberlaw.com Brian

    Did you know that the top 5% in royalty payments to soundexchange go to the AFM whether or not the recording is union or non-union?

  • http://corberlaw.com Brian

    What next? Will the engineer want a royalty? The janitor? Where does it end if ever?

  • http://snapshotintime.blogspot.com/ wi_ngo

    I agree with Brian, mostly. It's like the whole writer's strike thing here in LA. It's generally an unpopular opinion, but… you get paid x amount to work on a project and write your stuff, and you sign a contract that covers the royalties to whatever extent, and then tons of other people give their contribution. Why bitch and moan later when you realize that the project is making more money that you may have expected, and some other people are making more money off of it than you still are? You agreed to the terms, initially, as weak as they may have been. It's just about not having foresight, or other viable options when signing the initial contract. That's what the real complaint is.

    While it may be frustrating to see Billy Corgan making millions off of radio-play royalties when you are just the session gong player on his album – that's the deal you made from the get-go. They pay you x amount for the session work, and that's that. Fact is – you probably made more for being a gong player on that one session than any other working gong player in the world made the whole year. Enjoy that. Plus your resume is awesome now. (sorry – I know there probably isn't really such a thing as a session gong player, but it sounds funny to me)

    Sure, it may not be TOTALLY fair that those with songwriting credit get way more benefits in the long-run, but shouldn't we work on re-negotiating stuff like that on the front end? Any band I've played in, each member gets equal credit because at some point in rehearsal, everyone has their input. This may not be universally how bands work, but I think it's a more fair approach, in general. I think that's what Sanfoin is getting at in his comment. If Corgan is so concerned about players getting paid more, why not let them have part of the songwriting credit in the first place? Or would that be a blow to his delicate ego? And what about the engineer, the guy who does the album art, the guy who initially made up the band name, the guy who tuned the guitars for Billy at the recording, etc… where does it end?

    I just think trying to change the way radio works at this juncture is kind of silly. In LA, most of the 'good'/'indie' stations are gone. There's a handful of good music shows on KCRW, but that's about it. Is terrestrial radio really that great of a promotional tool anymore moving forward? Is it worth making it more complicated? It basically just seems like it's been watered down to a point where it's just a money-mill for corporate top 40 stations run by Clear Channel and the like. No one I know really listens to radio much anymore.

    Plus, I am very hesitant to side with the RIAA on anything. That's the bottom line. Don't trust their motives.

    Whew! Sorry for the long rant. Feel free to disagree; I like this discussion/topic, and the differing viewpoints. I'm basically just talking out of my you-know-what. :)

  • Kuqtpiet

    I say let the radio stations go bankrupt. The music they play is garbage so people start to listen to garbage and then you have this big mess of cultural garbage which the majority of the population reluctantly favor over anything else.

    The people will finally be forced to acquire their own appreciation in different types of music, which may lead to more abstract forms of music I think this generation desperately needs.

    as far as royalty checks go, maybe this should only be eligible for those artists who are not making substantial income. Idk..its going to be complicated..we have to consider independent stations, college stations. They shouldn't have to pay the artist shit. I mean these guys are the only stations i'd ever listen to. I would hate to see them go under.

  • Kuqtpiet

    haha. session gong player

  • a reader writes

    If this were to pass, it would simply mean the end of music programming, such as it is, on commercial radio. So if you like AM radio now, get ready for the future of FM.

    Station groups are not going to pay additional royalties just to broadcast music when they can buy syndicated talk shows for less money–and bonus points for an excuse to trim what is left of the local programming staff.

  • uhhuh

    If CEO's expect millions of dollars for telling people how to run a business, failing and then taking a multi-million dollar golden hushpuppy handshake gift, then why wouldn't it make sense to pay the musician for his work done, be it a part in an orchestra or a single producer what they are worth? We aren't asking for millions; only what is right. Furthermore if the adults of our communities can't work out a system that does pay us, then maybe they should step aside because there are plenty of people around who do know!!! OMG…all this carry on about what's right and what's not…it's obvious to most people already…sheesh.

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  • http://poodleface.livejournal.com E. Robert Frank

    The problem with this idea is that it opens a gigantic can of worms. It could absolutely murder sampling.

    It doesn't surprise me that Jay-Z is in favor of this idea… this is more money for him that he doesn't have to share with the co-writers of the track. Then you have the issue of who the "performer" is in sampled music… if someone samples a James Brown record, do the performers in that sample receive performance royalties? How are these performance royalties split?

    I'm guessing this would be negotiated just as the co-writing credit is negotiated as far as how to split revenues from writing. Yet, this is another huge headache that gets in the way of making music and releasing it. I can see sampled artists who have heavy weight demanding all of the performance royalty, and getting it. Likewise in a band like the current "Smashing Pumpkins", Billy Corgan is going to take the vast majority of the performance royalty.

    Don't think that this means that everyone in the band is going to get an equal share. It's not going to work that way. Kurt Cobain split his writing equally with the other members of Nirvana until the songs started making money, then he had everything rewritten so that he got 80-90%. Performance royalties would work exactly the same way.

    I have to agree with the notion that performers getting paid should be something negotiated on the front end. It keeps things much less messy. There are already R&B stations in Atlanta who spend +80% of the time talking and less than 20% of the time playing music. Doubtless this would further skew towards talk if this were implemented. It just makes more financial sense for the corporations. It should be obvious by now that artistic motivations are largely not being regarded by these radio stations anymore.

    As for artists who don't get paid for performing cover songs on the radio… well, they knew this when they recorded the song!

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  • http://nsputnik.com Nick

    Irving Azoff, manager of the Smashing Pumpkins and CEO of Ticketmaster, is one of the forces behind musicFIRST coalition. This has nothing to do with musician rights, and everything to do with funneling money to profiteers. http://techdirt.com/articles/20090312/1725054102….

  • box

    This is whacky…

    The old model is fine, songwriters get paid when their compositions are played on the radio.

    Performers get paid when they sell tickets and tour.

    Now the performers want the songwriters' shares? no.

  • detroit what

    woah peter listens to jimmy edger awesome!

  • Mike

    Ms. Hirschman leaves out one important detail: while this Act may make sense for commercial radio, it does not exempt public radio. It does require public stations to pay a lower, annual fee, but many college radio stations have already stated that the fee would be beyond their budget.

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