Must Read by @MarcHogan in Pitchfork: Congress Is Making Headway on a Bill to Modernize How [Songwriters] Are Paid — Artist Rights Watch

[Editor Charlie sez:  Marc Hogan, Senior Staff Writer at Pitchfork, takes a detailed and objective look at the Music Modernization Act and makes some critical recommendations for amendments to the MMA.  This is a must-read for all songwriters wanting to better understand the nuances of the legislation.]

In December, [U.S. Representative Doug] Collins introduced the Music Modernization Act(MMA), a 109-page piece of legislation he claims “would literally usher copyright laws into the 21st century.” A Senate version followed a month later. Born from a year of behind-the-scenes negotiations, the proposed law has bipartisan support and—unusual for music-related efforts in Congress—endorsements by lobbying groups representing a broad swath of the industry, from record labels and publishers to streaming services and FM broadcasters. (Some of the bill’s advocates haveargued that it should pass because this time, for once, it could pass.) Provisions of Collins’ bill are expected to be included as part of a package that the Grammys’ policy chief has expressed “very high confidence” will make it onto President Donald Trump’s desk sometime this year….

Though lawmakers are describing the MMA as a “consensus bill,” most of that consensus appears to have been between lobbyists at the negotiating table. While publishing and record-label trade groups advocating for the MMA claim they have cosigns from more than 26,000 songwriters, some in the industry question how much these survey respondents were really told about the nitty gritty. This bill simply shouldn’t be crammed through before the rest of the music community understands what it is and offers ways to improve it. And it’s not just that working-class musicians haven’t been invited to the table—it’s also that the biggest artist advocates they could find are folks like Dionne Warwick and Steven Tyler, neither exactly representative of where songwriting is headed and where royalties should follow….

This alphabet soup of administration would be a lot simpler than the current system, but the details matter. As proposed, the streaming services would fund the MLC, and a board of publishers and songwriters would oversee it. At last (unofficial) count, the board would consist of 10 publishers and only four songwriters. In an open letter, songwriter and big-band leader Maria Schneider has called for an equal, 50-50 split between publishers and songwriters, along with assurance that songwriters would be able to choose their own board representatives. She has a point, and Congress should make the change.

Read the post on Pitchfork.



You Can’t Find What You Don’t Look For: Google Can’t Find The Beatles

March 18, 2018 1 comment


The “address unknown” saga continues–it appears that Google and Amazon can’t find John Lennon and Paul McCartney (pka The Beatles) in the public records of the Copyright Office in order to send their notice for a compulsory license.  Because it’s not enough to have a way to force songwriters to license to them at the government’s cheesy rates.  A quick check of the SX Works NOI Lookup database shows us how bad it really is.

But two of the biggest companies in commercial history shouldn’t feel bad–Spotify can’t find The Beatles, either.  That’s right–the saviours of the music business can’t find one of the biggest bands in history.

Beatles 2

Of course what is interesting about Big Tech’s inability to find Lennon & McCartney in the public records of the Copyright Office is a little inside baseball.  If you are prepared to believe that these companies actually look for the copyright owners of songs they want to claim as “address unknown” (which I am not prepared to believe), Lennon & McCartney’s publisher would have registered the copyright in, say, Penny Lane when it was written or released.  (The Lennon/McCartney publisher is Northern Songs which I believe was administered by EMI at the time.  For those reading along at home, that’s 424 Church Street, Suite 1200, Nashville, TN 37219, at least for the moment.  They’re in the book.)

Penny Lane was released in 1967 as a double A side single (remember those?) with Strawberry Fields Forever.  It was later included on Magical Mystery Tour also in 1967.  That date is significant because it is before January 1, 1978–which is an important date because that is the earliest date that can be searched online in the Copyright Office Public Catalog.

If you agree with me that it doesn’t matter because they’re not looking anyway, then this is not an important fact.  If you are prepared to give these Digital Media Association companies the benefit of the doubt, you would look at their “address unknown” NOI filing and notice that the filers attest that they have looked for the copyright owner in the Copyright Office public records as required in the filing instructions.   (“In the case where the Notice will be filed with the Copyright Office pursuant to paragraph (f)(3) of this section, the Notice shall include an affirmative statement that with respect to the nondramatic musical work named in the Notice of Intention, the registration records or other public records of the Copyright Office have been searched and found not to identify the name and address of the copyright owner of such work.”  This language is fixed in the template for each NOI served on the Copyright Office.)

If they are looking in the pre-1978 records, then how would they accomplish this search? Copyright Office Circular 23 tells us:

Together, the copyright card catalog and the online files of the Copyright Office provide an index to copyright registrations and records in the United States from 1870 to the present. The copyright card catalog contains approximately 45 million cards covering the period 1870 through 1977. Registrations and records for all works dating from January 1, 1978, to the present are searchable in the online catalog, available at….

The copyright card catalog is located in the Copyright Public Records Reading Room (lm-404) on the fourth floor of the James Madison Memorial Building of the Library of Congress. The public can use the catalog, which is staffed
by a Copyright Office employee, between 8:30 am and 5:00 pm, eastern time, Monday through Friday, except federal holidays. Before starting your search, consult Circular 22, How to Investigate the Copyright Status of a Work, available on the Copyright Office website or from the staff member on duty.

Alternatively, Copyright Office staff can search copyright records for you.

So…if these companies really are doing the research they attest to doing, the Copyright Public Records Reading Room must be quite a busy place.  In fact, there must be a line out the door.  Or the research staff must be buried.

Or…these companies are telling what we call in the trade…a lie.

And of course, nobody is checking.

Why does this matter?  Because the Music Modernization Act would have us all rely on the kindness of strangers in doing the intial match for monies heading for the black box. Why in the world would you ever trust these people to do that matching if they really can’t find two of the most successful songwriters in history?  Or if they lie about it?

SXSW Panel on Music Modernization Act’s Reachback Safe Harbor

March 17, 2018 Leave a comment

I was fortunate to moderate an excellent panel at the SXSW Continuing Legal Education seminar this week.  Our topic was “The Future of Mechanical Licensing in the U.S.”  Little did we know when the panel was booked in September that this would be such a hot topic following the introduction of the deeply controversial Music Modernization Act on December 21.

One of the legal process questions the panel discussed was the MMA’s “reachback” safe harbor that retroactively limits infringement claims filed after January 1, 2018 without regard to when the MMA’s blanket license is actually available.  The timing of this is particularly odd given the fact that the MMA was announced on December 21, 2017 and a public version of the bill was not available until mid-January.  I’m willing to be educated on this, but I don’t believe any of the public messaging on the legislation from either the Congress or the supporters of the MMA ever mentioned this reachback safe harbor.   (See, e.g., the December 26, 2017 summary of the bill on Rep. Ted Lieu’s site which does not mention the Jan 1 date.)

If Wixen Music Publishing hadn’t found a draft non-public version of the bill, they would not have known of the proposed January 1, 2018 deadline until after that date had passed.  It was Wixen’s filing on December 29, 2017 that really informed the industry of the safe harbor because the story got attached to the press push behind Spotify’s IPO/DPO announcement which pushed the story in earned media.

Litigators in the panel meeting room were mystified by how this reachback safe harbor would work procedurally.  If you have a ripe claim (such as someone who had a claim against Spotify that arose after the June 26, 2017 cut off of the Ferrick class action but before the January 1, 2018 safe harbor deadline) and you sue after January 1, 2018, if the MMA is enacted after you sue, what happens?  You have to bet that the DIMA companies will raise the safe harbor as a defense, but should they win on that point?  Should the applicable court then bar recovery for statutory damages and attorneys fees?

Nobody knew and my bet is that nobody knows.  It was comforting to have a group of lawyers come to the same conclusion I did–the MMA safe harbor is Kafkaesque at best.

You Can’t Find What You Don’t Look For: Spotify May Not be the Only Source for Aaliyah Bootlegs

March 15, 2018 Leave a comment


Vanessa Okoth-Obbo’s eye-opening and must-read post about possible Aaliyah bootlegs on Spotify confirms a suspicious looking trend on digital music services–bootleggers finding another way to profit from lax policing by the “saviours of the music business” like Spotify.

As Vanessa writes in Factmag:’

Aside from her 1994 debut Age Ain’t Nothing but a Number, most of Aaliyah’s music has never officially been available on major streaming platforms. Ola [a fan Vanessa interviewed for the story] added ‘More Than A Woman’ to Old School Hip-Hop via the album R&B Divas (International Version), one of two compilations with the same title released simultaneously by, itseems, Universal Music International in 2007. While listening to the playlist from his phone last month, ‘More Than A Woman’ came on and Ola idly tapped the song’s title, something that normally takes the user to the source album. But instead of R&B Divas, which features music from artists like Rihanna and Amy Winehouse, Ola says he found himself looking at the full tracklist for what appeared to be a bootleg version of Aaliyah….

The sophistication of methods for getting songs onto the platform in the first place accounts for some of this. Spotify has agreements with most major labels who, in turn, handle the process for their signed artists, and an adjacent economy of content aggregators has sprung up to assist those with no direct label backing. Distributors like CD Baby and TuneCore help independent artists put their music on the leading digital services and collect any royalties resulting from streaming or sales, for varying fees.

It’s highly probable that the Aaliyah albums were bundled in via a similar third-party service…

Taking advantage of his Spotify Premium membership, Ola moved quickly to download his favorite Aaliyah songs to his device while he could. In a blunt reading of his action, it represents money out of someone’s pocket — business is business. Still, the chances of a fan turning down a chance to engage with their idols’ work are slim, in any era or arena.

That leaves Spotify, and whoever is responsible for uploading the Aaliyah albums without permission, open to scrutiny. For Gary Pierson, the matter is clear cut: a service is liable for what it hosts. “This can get more nuanced in the case of ‘user generated content’ such as Youtube videos, but for the streaming services it’s pretty clear,” he summarized. The streaming behemoth has a lot on the line: Spotify recently moved to go public, filing for a direct listing on the New York Stock Exchange in a money-generating step that some analysts have deemed unconventional. While the move could bring in much-needed capital to help the company resist copyright lawsuits (to which they are no stranger), a music streaming service cannot risk the stain of failing to protect artists’ interests…

Well…that ship has sailed.  We all know Spotify has demonstrated a lack of control over what’s on its systems for songs, and it increasingly looks like all of the services have fallen down on making sure that there’s no bootlegs in their catalogs.  So I ran the name “Aaliyah” through the SX Works NOI Lookup to see what came back–because if there’s no license for the sound recording, they can’t get an compulsory license for the song.  (If you’re new to the mass NOI problem, read my article from the American Bar Association Entertainment & Sports Lawyer).  

Sure enough, as you can see from the screen capture above, Google Amazon, Pandora and Spotify have all filed mass NOIs on Aaliyah, which means they are able to avoid  paying royalties on Aaliyah’s songs.  Some of these tracks may be from legitimate sources, but Vanessa’s story makes you wonder and points out yet again the need for the Copyright Office to take some responsibility for allowing these NOIs to be filed in a manner the Congress never intended.



How to Fix The Music Modernization Act’s Flawed “Audit” Clause — Music Tech Solutions

The famous old Russian proverb reminds us to trust but verify. That’s been the story in the record business since the cylindrical disc. All the “modernization” in the world will not soothe songwriter’s genetic suspicion of their accounting statements. Unfortunately, the controversial Music Modernization Act creates a quasi-governmental organization with no oversight, and that has weak and punitive audit clauses for songwriters.   We are told that songwriters should appreciate what they’re given because they never had audit rights under the current statutory license.  Of course, if you run the risk of being financially punished if you exercise a right, that’s not much of a right at all.  So let’s not do the usual two steps forward, three steps back.

via How to Fix The Music Modernization Act’s Flawed “Audit” Clause — Music Tech Solutions

You Can’t Find What You Don’t Look For: Big Tech Can’t Find Austin Artists

March 11, 2018 Leave a comment

You may not know the names Shinyribs, Guy Forsyth, Ray Wylie Hubbard, Grupo Fantasma, Carolyn Wonderland, Sara Hickman or Jimmy LaFave, but we do here in Austin.  You probably know Willie Nelson and so do we.  We even have a street named after Willie.

What else do these artists have in common aside from being some of Austin’s most loved and respected artists and songwriters?  Spotify, Google, Amazon, iHeart can’t seem to find them and have sent “address unknown” NOIs for all of them.  (This issue involves mechanical royalties, not SoundExchange royalties or ASCAP/BMI/SESAC royalties.  For the background on mass NOI loophole see my article from the American Bar Association Entertainment & Sports Lawyer.)  The more we research this issue, the less anyone will believe that the Music Modernization Act is going to solve the problem of not finding what you don’t look for.  (You can search for yourself in the SX Works NOI Lookup database (account registration required) that indexes the 60,000,000 plus “address unknown” notices to the Copyright Office from companies like Spotify, Google, Amazon–although interestingly, not Apple.  Apple seems to be able to run their service on a loophole-free basis.)

Realize that this is not the fault of the songwriter–it’s easy to find these songwriters if you look for them.  The problem is that the only place these services are required to look is in the public records of the Copyright Office and the songs will only be there if the songwriter registered them which they are not obligated to do in order to be paid mechanical royalties.  Seems kind of confusing and circular?  That’s because it is and because it is a loophole that hardly anyone ever used since 1976–up until Big Tech found it in 2016.

It is particularly galling that these giant companies all come to SXSW with a big presence but can’t seem to manage to pay our top songwriters.  And remember–it’s not that there is a deferred royalty or retroactive royalty–until these songwriters either prove that they actually already registered their songs in the Copyright Office or do in the future, they don’t get a royalty at all courtesy of a loophole in the Copyright Act and the abject failure of the Congress to do anything about it.  And remember–there is nothing that requires them to register in order to enjoy all the rights of a copyright owner, including the right to make Spotify rich and Google richer.

That’s right–81 notices on the late Jimmy LaFave:

Jimmy LaFave

Ray Wylie Hubbard has 126:

Ray Wylie Hubbard

Shinyribs got 57:


Carolyn Wonderland racked up 189:


Sara Hickman has 111:

Sara Hickman

Grupo Fantasma gets 62:


Guy Forsyth has 103:

Guy Forsyth

And Willie Nelson has 2,897:

Willie Nelson

So when ya’ll tech bros are in Austin this week, make sure you drop by if any of the songwriters you are stiffing are playing a show.  You could even tip.  Maybe you can find them in the SXSW show listings.

And enjoy your visit.

@musicbizworld: Universal Commits to Sharing Stock Sale Proceeds with Artists

March 11, 2018 Leave a comment

According to Music Business Worldwide, Universal has committed to sharing profits from the sale of Spotify stock.  The exact quote is:


Sources close to Vivendi-owned UMG suggest it may have been corporately restricted from making a hypothetical public statement on the matter until Spotify officially confirmed its intention to float on the New York Stock Exchange.

This is great news and also is the right thing to do.  The trick is, of course, that someone has to buy Universal’s position in Spotify in the public market.

Selling large blocks of shares in the public markets is always a tricky business, but Spotify may have made it exponentially more difficult given the “direct public offering” structure of its IPO (more properly called a “DPO”).  I suspect that there will be a rush for the exits as holders of Spotify stock try to liquidate, and Universal could find itself selling alongside a fully-vested marketing consultant who left the company three years ago, artists who got shares, and of course all the other majors and Merlin.

If you believe as I do that the world of retail investing is not waiting for a Spotify IPO,  this kind of robust selling could cause the price to tank in the absence of buyers or result in the kind of volume patterns you see with some shares of preferred stock (which have the “z” designation after the share numbers on the day in the stock section).

The Vivendi and Universal treasury folk are very smart people, so I’m sure they will manage the sale of their stock with an eye to avoiding tanking the stock and maximizing profit, so their interests are aligned with their artists (and presumably songwriters, too).

The next problem that we will all have to deal with is the meme that Spotify is already promoting–the reason Spotify loses money is that royalties are too damn high.  I guess that means the royalties they’re not paying?  Followed closely behind (A) the reason they can’t pay songwriters is because songwriters hide from them (true story, read the F-1 at p. 20); (B) Spotify wants to eliminate the “middleman” (i.e., record companies) and good luck with that; and (C) if the music industry had just built a global rights database then, then everything would be fine so Spotify’s failure to pay royalties is really our fault.

And especially those pesky songwriters who hide from them.

Even if it may take a while to liquidate Universal’s position in Spotify, it is comforting that they’re committed to doing the right thing.

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