We’ve seen quite a bit of “new boss” activity this week: Google screwing indie labels, Amazon screwing authors and now yet another missed opportunity for Sirius and Pandora to demonstrate that they care about the artists who deliver them riches. Yes, it’s that old and unimproved digital radio, now with even more exploitation. Meet the new boss, worse than the old boss.
This time, however, Sirius and Pandora are behaving so badly that it requires passing new legislation just to get their noses up to the fair compensation line. SoundExchange is taking steps to protect “legacy” artists from the most recent attack on artist royalties from Sirius XM and Pandora. Why? Because Pandora and Sirius want to use recordings from pre-1972 without respecting the artists enough to pay them royalties, not to mention getting a license.
And pre-72 recordings are…well, how to say it? The entire legacy of contemporary music perhaps? Yes, that about sums it up.
Here’s a screen capture I took today from Pandora of The Beatles, pre-72 (Let It Be was released May 8, 1970):
And a pie chart for Sirius showing the uses of Beatles music by channel, again from today:
And here’s Janis Joplin:
And Roy Orbison
So you can see that Sirius (and I am confident that searches for Pandora channels would deliver similar results) wants to use the music but doesn’t respect the artists. (Pie charts are available from Dog Star Radio’s invaluable searchable database of Sirius playlists available at http://www.dogstarradio.com/search_playlist.php)
Somewhere around December 2013, both Sirius and Pandora decided to stop paying royalties on ALL pre-72 recordings. These litigious companies had to know that nobody would take this lying down. Particularly since you can see from these examples that both services are using the music and not paying for it.
Why is 1972 the date at issue?
One of the quirks of U.S. copyright law is that sound recordings did not get federal copyright protection until February 15, 1972. It’s not that the recordings didn’t have any protection before 1972, they did, but that protection was provided by state law. This is the center of the Turtles case against Sirius filed in 2013 in California, New York, and Florida.
Congress established the compulsory license and royalty for sound recordings online in the 1990s and the pre-72 issue was not addressed. The gist of the argument that Sirius and Pandora make is that because the compulsory license each service relies on is in the federal Copyright Act and because pre-72 recordings are not protected by federal copyright law, no royalty payment is required for pre-72 recordings under the federal Copyright Act’s compulsory licenses administered by SoundExchange.
SoundExchange is now essentially being forced to deal with this issue because Sirius and Pandora both have decided to stop paying on these recordings while continuing to play them. Or rather, while continuing to play the most popular ones.
Let’s be clear–this is not about feeling sorry for “legacy” artists. These are some of the best known artists of all time–which is why they are still getting played on Sirius and Pandora–in many cases 70 years after the records were released. The reason Sirius has “40s,” “50s,” “60s” and “70s” channels is because it profits them to do so.
And the artists should be paid because they deserve that respect.
Representatives George Holding and John Conyers are introducing a bill in the U.S. House of Representatives to handle this issue–the RESPECT Act. We haven’t seen the legislation yet, but I anticipate that it will be consistent with the SoundExchange filing in the Copyright Office Music Licensing Study request for comments. It is not necessary to go to full “federalization” of the pre-72 recordings in order to clarify that they are to be included in the royalty payment.
Whatever the result, what is not correct is what Pandora and Sirius are doing now–playing the music without paying the artists. This is yet another missed opportunity for these two public companies. They could very easily have said that they’d continue paying artists rather than rely on a loophole. They could easily have joined with artists to fix this ambiguity. But…they didn’t. More bad advice and lobbying malpractice.
And here’s some of the artists they could have joined with, all of whom are supporting the RESPECT Act: The Allman Brothers Band, The Beach Boys, Roseanne Cash, Melissa Etheridge, Al Green, B.B. King, The Moody Blues, Cyndi Lauper, Martha Reeves, members of Steely Dan, The Supremes, The Temptations and Three Dog Night.
So once again, the Congress has to put other pressing business on hold in order to deal with Sirius and Pandora, public companies who want to get something for nothing. And make no mistake, Sirius at least is making money on this deal. Here’s the before and after on their “music fees” as told to their customers:
Before December 2013:
After December 2013:
Do you get the impression from this advertising that Sirius is charging more but paying less? If you were a fan of the “decade” channels would you have any idea that Sirius was stiffing your favorite artists? This is verging on false advertising.
More on this as it evolves, you can get the latest from Project 72, the new effort from SoundExchange to make this right and #respectallmusic