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Posts Tagged ‘RESPECT Act’

#IRespectMusic: California Court Rules for The Turtles, Deals Crushing Blow to Sirius in Victory for Artist Rights on pre-72

September 23, 2014 3 comments

Score Round One for the Duke, the Count and Satchmo–Flo & Eddie pka The Turtles have won a crushing victory over Sirius XM requiring Sirius to license and pay royalties for Flo & Eddie’s recordings published before 1972.  Sirius had taken the position that because the Congress did not expressly include pre-1972 recordings when it established the performance right for sound recordings in 1995, Sirius did not have to pay royalties on pre-72 recordings it used on its service.  This is a position held by Pandora and the Digital Media Association which includes Google among its membership.  More about that later.

The case was brilliantly argued for Flo & Eddie by Henry Gradstein and Harvey Geller, two long time artist advocates (the firm is also representing Aimee Mann in her lawsuit against MediaNet).  The theory is actually very simple, even biblical–thou shalt not steal.  But then I’m an Old Testament kind of guy.

However, the case is based on a complex set of legal principles that need to be mastered and presented just so in order to prevail.  Because Flo & Eddie managed to get back ownership of their masters years ago, they were able to bring the case themselves without any record company involvement.  (After the artists led the way, the major labels also sued Sirius.)  And Gradstein and Geller made a very effective and compelling argument to the Court that resulted in victory, a victory that will be available to artists and copyright owners everywhere seeking to correct the “Pandora loophole.”

Not only will this defeat for Sirius, Pandora and DiMA be encouraging to artists wishing to take action, it also provides what must be a tremendous sense of satisfaction to the sponsors of the RESPECT Act (HR 4772), introduced by Rep. George Holding and Rep. John Conyers.  The cosponsors are a bipartisan group seeking to right the wrong of the Pandora loophole: Reps. Coble, Blackburn, Chu, Cooper, Deutch, Gohmert, Jeffries, Peterson, Rangel, Lowenthal, Collins, Rooney and Fincher.

The Pandora loophole is an effort to justify denying artists their right to satellite radio and webcasting royalties by playing with dates.  Those dates are 1972, 1995 and 1998.  (In Flo and Eddie’s California case, another date was 1982.)  1972 is important because that was the first year that Congress extended the federal copyright law to sound recordings.  Before 1972, sound recordings are governed by state common law, sometimes included statutes as is the case in California that has an extensive state copyright act directly on point as one might expect.  1995 is important because that was the year that Congress established a limited public performance right in sound recordings transmitted digitally (including satellite radio and webcasting) and 1998 is important because that was the year that Congress fleshed out the law that established the compulsory license under Section 114(g), the royalty rate setting and put the finishing touches on establishing SoundExchange.

The Pandora loophole is some version of this argument:  Because state law applies to pre-72 sound recordings and because Congress did not intend to extend the performance right to sound recordings in 1995, pre-72 artists and copyright owners (as well as the non featured singers and musicians) get none of the royalties established in 1998 under the compulsory license.  But here’s the truly weird part:  Sirius rejected the safety of the compulsory license established in 1998 to commercialize the limited performance rights established in 1995 in favor of no license at all under state law.

Yes, that’s right:  Grown men thought this was a good idea.

The case boils down to a very simple concept:  California has a carefully crafted state copyright law that the Court ruled includes the public performance right (and does not exclude it):

The Court finds that copyright ownership of a sound recording under § 980(a)(2) [the California copyright statute] includes the exclusive right to publicly perform that recording. See Cal. Civ. Code § 980(a)(2).  Accordingly, the Court GRANTS summary judgment on copyright infringement in violation of §980(a)(2) in favor of Flo & Eddie.

The point–and one made recently by David Lowery–is that there is no language in either the California state law or in the 1995 amendment to the federal Copyright Law that excludes public performance royalties for pre72 recordings.  So the RESPECT Act can be thought of as almost a technical amendment to fix this Pandora loophole.

Neither Pandora nor Sirius exactly trumpet to their users the fact that these companies are using the pre-72 recordings in multiple channels to their profit–but none of the fees paid by fans ever gets to the artists.  Pandora even misappropriates the artist’s name in the music genome and uses association with artists by name in order to sell their service–and that’s not covered by the compulsory license, either.  (And neither is the derivative work created by the music genome–but that’s another lawsuit.)

So you have to ask yourself–what were they thinking?  Wouldn’t it have been better if Sirius really wanted to stiff old guys and dead cats that they paid the royalties and sought declaratory relief before cutting off America’s musical treasures?

Pandora and Sirius have a chance now to openly reject the bad advice they got (apparently from DiMA) and start paying on pre-72 IMMEDIATELY.  Throw their support behind the RESPECT Act.  Disassociate themselves from DiMA, CCIA, CES or whoever is giving them this horrible advice that it’s worth the downside liability risk and yet more bad PR to “save” a few bucks and stiff Miles Davis, Duke Ellington, Neil Young and so many greats who are responsible for putting American music on the map.

But if past behavior is any prediction of future action, they won’t.  You get into these scrapes by being pig-headed, and you can’t waive a magic wand and make a pig into something else.  You can fire them, however.

And when Wall Street gets a load of the level of liability that these companies have taken on without a care in the world, the reaction will be interesting.

Apparently Pandora’s CFO would like Pandora to be a better partner to artists.  That’s easy.

All he has to do is act like it.

 Register in September.  Vote in November.

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The MTP Interview: Janita and #irespectmusic: Washington from an artist’s perspective

July 1, 2014 1 comment

[This interview first appeared in the June edition of Music Tech Policy Monthly.  Janita’s story was specifically noted by Representative Judy Chu in the House IP Subcommittee.]

The #irespect music team returned to Washington, DC last week for more meetings on Capitol Hill about artist pay for radio play.

We interviewed Janita about the trip and discussions with Members of Congress about the importance of passing legislation to create a performance right in sound recordings on terrestrial broadcast radio.

MTP:  Tell us a little about your creative arc, who are your musical influences, what’s your background and how did you get to where you are today musically speaking?

Janita:  I’ve been an artist for over 20 years; I was originally a child-star in my home country Finland. I have gone through many phases in those years, but the phase that I’m most excited about is the one that I’m going through right now. My musical style these days is a mixture of all of my influences, which include alternative artists like Radiohead and Blonde Redhead, soul artists like Meshell Ndegeocello and Bill Withers, and many artists that I find it harder to categorize like Tom Waits and Crosby, Stills and Nash. I’m an omnivore when it comes to music though. My favorite kind of music is great music.

I took a few detours in my musical career, having started at the tender age of 13. Being so young and pliable I got used to being maneuvered by record label executives and such, without realizing that their will wasn’t actually my will. It took me a long time to wake up, grow up and gather the courage to say: “No, man. I’m gonna do it my way. On my own terms.” Now I write all my own music, I play guitar and piano, and I’m very hands on in terms of production. I’m in charge of my music and my career and I love it! I think that that same defiance informs my current role in #irespectmusic.

nadler

L-R:  Tommy Merrill, Rep. Jerry Nadler, Blake Morgan, Janita

MTP:  What is your perspective on the lack of artist pay for radio play in the US?

Janita:  As a Finnish artist I have always been paid for my performances whenever my music has been played on the radio. I have gotten used to this right, and thus the absence of it is distinctly noticeable. In the beginning of my career I didn’t write my songs, so I relied on my performance royalties for part of my income. I would estimate that at times those royalties have been about a third of my overall income.

It was shocking to me initially, when upon moving to the States I heard that the US doesn’t pay performance royalty at all. But at the time I assumed that Finland was the exception in paying those royalties. It only dawned on me much later that instead the US is the exception in this particular area. Every other democratic country in the world pays this royalty. It’s a right, not a privilege.

MTP:  When you became a US citizen, did you continue to get paid for performances in Finland?

Janita:  I became a US citizen last summer, so this is all quite new. Royalties get paid retroactively, and up until some months ago I was still receiving payments for my performances on the radio from last year. I am lucky in that Finland allows dual citizenship with the US (for example Denmark, Japan and Netherlands don’t), which means that if I register my dual citizenship, I will not lose these royalties. However, if I was to decide to become solely a US citizen (which is what the US would actually prefer), I would lose my performance royalties from all over the world. The reverse of the American Dream! As it is, it doesn’t make sense for any recording artist from any democratic country in the world to become solely a U.S. citizen, for loss of a significant source of income.

marsha blackburn sm

L-R  Janita, Rep. Marsha Blackburn, Blake Morgan, Tommy Merrill

MTP:  How did you get involved with the #irespectmusic campaign?  Were you worried about getting the Lars Ulrich treatment?

Janita:  Blake Morgan is both the owner of, and a labelmate of mine on ECR Music Group. In addition to that he is the producer of my upcoming album. I followed the back and forth communication between Tim Westergren and Blake very closely last year, and I realized then that I could have been totally duped by that misleading IRFA-email that Westergren sent to a multitude of musicians. Learning the facts through Blake’s whistle-blowing roused my anger, and it was then that I realized that I wasn’t as informed as I wanted and needed to be about issues regarding my profession.

As the year went on, I started to get more and more passionate and involved in these issues. I was immediately on board with #irespectmusic when it launched. We as artists deal with so much injustice in the music industry, and often without our knowledge. I think that many of us are under the impression that there no longer is money in the music business, and settle into that reality. The truth is that there are billions of dollars changing hands in the music industry. It’s just that the artists aren’t getting their fair share of the pie. Us artists are making the industry’s only product and we’re not getting paid for it. It’s obvious that this has to change.

Regarding the Lars Ulrich-treatment… I didn’t much consider it. I was righteously, joyously angry and just went with it.

MTP:  You’ve been to Washington twice with Blake and Tommy to talk to Members of Congress and government officials about the #irespectmusic campaign.  What’s that experience been like for you?

Janita:  It’s been a transformative experience. The first time we went I actually felt emotional in the discussions. I realized that I was giving a face, a name and a voice to artists both in the US and abroad. These government officials regularly deal with the CEOs, directors and the lobbyists of large music organizations and companies. My guess is that it’s pretty rare for them to actually meet with middle-class rock stars: the people who are personally and directly affected by this particular legislation. We are the people to whom artists being paid for their performances on the radio means the difference between being able to keep our lights on or not. To me it’s both a responsibility and a privilege to tell my story to these people, now that I have the opportunity. It has been amazing to see how receptive, informed and motivated both the Members of Congress and other government officials have been.

 

copyright office

 Blake, Tommy and Janita with Associate Register of Copyrights

and General Counsel Jacqueline Charlesworth and Copyright Office Staff

 MTP:  Do you find your Washington meetings have been positive and are the government folks interested in what you have to say as an artist?

Janita:  Absolutely.   We have been greeted with much support everywhere we’ve gone so far. Blake Morgan is a brilliant and funny front-man for this campaign, and each meeting has been positive and inspiring.  Also, my story has been particularly interesting to the government folks that we’ve met, because it brings an international perspective to the issue. It’s pretty cool to state your case, when the injustice is so clear that only a fool would argue it. Artists deserve to get paid for their work! This is not a complicated issue in the end. A plumber, a farmer, a doctor and a lawyer get paid for their work. Why are artists expected to work for free? The government people that we have met with have all keenly understood this issue.

MTP: How have other artists you know reacted to the #irespectmusic campaign?  Have fans been supportive?

Janita:  This is #irespectmusic, with an emphasis on the “I.” It’s not about pushing others to act, it’s about personally reacting to the injustice and wanting to join the cause voluntarily. And so many have, which is wonderful. My fans are incredibly supportive, yes.

 

Judy Chu

L-R: Janita, Rep. Judy Chu, Blake Morgan and Tommy Merrill  

MTP:  What do you have planned in the future for #irespectmusic?

Janita:  I wouldn’t be surprised if we ended up going to Washington DC again quite soon. It’s been amazing to watch the momentum grow on the grassroots-level, on the political level and on the music industry side. Of course, right now we are waiting for Rep. Nadler’s upcoming bill, which is thrilling. Exciting plans are in the works!

IRM Team

RESPECT Act: SoundExchange Takes Steps to Protect Artists from Sirius XM and Pandora

May 29, 2014 1 comment

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):

Pandora Beatles

And a pie chart for Sirius showing the uses of Beatles music by channel, again from today:

The Beatles on Sirius 5/26-5/29 2014 http://www.dogstarradio.com/search_playlist.php?artist=the+beatles&title=&channel=&month=&date=&shour=&sampm=&stz=&ehour=&eampm=

The Beatles on Sirius 5/26-5/29 2014

 

And here’s Janis Joplin:

Janis Joplin on Sirius 5/26-5/29 2014

Janis Joplin on Sirius 5/26-5/29 2014

Jimi Hendrix:

Jimi Hendrix on Sirius 5/26-5/29 2014

Jimi Hendrix on Sirius 5/26-5/29 2014

Charlie Parker

Sirius Charlie Parker 5/26-5/29 2014

Sirius Charlie Parker 5/26-5/29 2014

Louis Armstrong

Sirius Louis Armstrong 5/26-5/29 2014

Sirius Louis Armstrong 5/26-5/29 2014

And Roy Orbison

Sirius Roy Orbison 5/26-5/29 2014

Sirius Roy Orbison 5/26-5/29 2014

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:

sirius music fee old 1

After December 2013:

sirius music fee 1

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

 

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