[This 2018 MusicAlly post by the great Stuart Dredge summarizes my “Ethical Pool” strategy as an intermediate step toward solving the unsustainable streaming artist royalty issue. The Ethical Pool can be implemented immediately–SoundCloud’s “Fan Powered Royalty” version demonstrates the immediate application potential while further engaging fans. It also blows past the complexity objection from streaming services which is the threshold rejection when user-centric (or what I call “artist centric”) is presented because the Ethical Pool is essentially bolted on to the existing royalty system so that services run both simultaneously. That’s what SoundCloud has done with FPR and that’s why it is an intermediate step. You would have to make some decisions about what business rules would allow the two systems to operate side by side, but because all participants in the Ethical Pool would be opt-in you would not have to amend any existing contracts, pass any laws, or change any existing royalty accounting systems. The “Big Pool” stays as is, the Ethical Pool is a new and separate license. The market will tell us if it flies or crashes and burns. It must also be said that there is a tremendous amount of fraud in streaming services–naturally, it’s on the Internet after all–and any royalty system like the Ethical Pool that encourages the existence of actual fans is likely to create natural barriers to fraud.
But know this–the status quo is not sustainable (as Professor Claudio Feijoo and I wrote in our WIPO study on streaming remuneration). Stuart returns to this topic in a recent MusicAlly post in light of Sir Lucian Grainge’s recent statements about sustainability.]
Industry blog Music Tech Solutions has been thinking about the debate around ‘user-centric’ streaming royalties. That’s where the royalties from every paying streamer’s monthly subscription are divided only between the artists they listen to, rather than going into a bigger pool divided by overall listening share on the entire service.
MTS’ new idea: let fans choose if they want their subscriptions to be divided up in this new way. “When the fan signs up for a service, let the fan check a box that says ‘Ethical Pool.’ That would inform the service that the fan wants their subscription fee to go solely to the artists they listen to,” it explains, suggesting that this would ensure streaming services don’t fall foul of contracts that require them to treat royalties in the traditional ‘Big Pool’ way. “Artists also would be able to opt into this method by checking a corresponding box indicating that they only want their recordings made available to fans electing the Ethical Pool. The artist gets to make that decision. Of course, the artist would then have to give up any claim to a share of the ‘Big Pool.’ Existing subscribers could be informed in track metadata that an artist they wanted to listen to had elected the Ethical Pool. A fan who is already a subscriber could have to switch to the Ethical Pool method in order to listen to the track.”
[Editor Charlie sez: The more interesting claim is against Spotify for inducing a breach and discriminating against all the artists who didn’t get stock, RSUs or something that represented the value of the stock. But the really interesting case is against the publishers for conspiring to keep streaming mechanicals at a “less than zero” rate while braying about how great a job they’d done in negotiating at the CRB with streaming and freezing the mechanical rate for physical over the same period that just happened to correspond to Spotify’s launch.]
Black Sheep have filed a class-action lawsuit against Universal Music Group, Rolling Stone reports and Pitchfork can confirm. The 1990s hip-hop duo allege that the label owes more than $750 million in royalties to numerous Universal artists due to an early “sweetheart” arrangement with Spotify, which allowed the streaming company to pay less in royalties in exchange for Spotify stock. The artists are suing Universal for breach of contract, breach of duty of good faith and fair dealing, and unjust enrichment.
In the lawsuit, plaintiffs Andres “Dres” Vargas Titus and William “Mista Lawnge” McLean allege that Universal “is withholding hundreds of millions of dollars in royalties” due to a “previously undisclosed” agreement with Spotify. This “sweetheart” arrangement allowed Spotify to license music from the label at a discounted rate “in exchange for Spotify stock and lower royalty payments.”
David explains how “OpenAI” is just another example of Silicon Valley’s loophole arbitrage.@davidclowery: Silicon Valley’s Loophole Arbitrage on Display Yet Again with OpenAI — The Trichordist
[Editor Charlie sez: In this comment to the Copyright Office, Abby North (independent publisher and Artist Rights Symposium III Moderator) calls on the Copyright Office to stop the MLC quango from unilaterally establishing “business rules” that hurt songwriters and their heirs and protect working families from these arbitrary actions of The MLC. Read the original comment here on Regulations.gov)
January 5, 2023
Via Electronic Delivery
Comments of Abby North
Docket No. 2022-5
Re: Termination Rights and the Music Modernization Act’s Blanket License
To the United States Copyright Office:
My name is Abby North. I am a music publishing administrator based in Los Angeles. My views expressed in this letter are solely my own.
With my husband, I am a copyright owner of the classic song “Unchained Melody,” among other copyrights. I also administer musical works and sound recordings on behalf of songwriters, their families and heirs. In many instances, I assist my clients in identifying their termination windows, assist in the research required, and interface with the attorneys who process termination filings.
I’m thankful for the opportunity to submit comments in support of the Copyright Office’s proposed rule.
The ability to recapture rights via the United States copyright termination system truly provides composers, songwriters and recording artists and their heirs, a “second bite of the apple.” Many of my clients exercise this right, and in doing so grow their family’s revenue, which, given today’s inflation and very high interest rates, coupled with a depleted stock market, is absolutely necessary.
Allyn Ferguson was a successful composer of film/television scores including “Little Lord Fauntleroy,” “Les Miserables,” “Charlie’s Angels,” and “Barney Miller.” According to Variety in its June 27, 2010 obituary, Ferguson was “among the most prolific composers of TV in the past 40 years.” My company North Music Group administers works controlled by Ferguson’s family.
In addition to his scores, Ferguson wrote songs performed by artists including Johnny Mathis, Count Basie Band and Freddie Hubbard. While the bulk of his film and television scores were created on a work for hire basis, and therefore are not eligible for termination under US copyright law, Ferguson’s commercial compositions and songs were not created as works for hire. Ferguson’s family has been able to exercise its termination rights in various musical works,
thereby increasing its earnings as it now collects the publisher share of United States royalties generated by the terminated works. Individual songwriters and composers and their heirs are not copyright aggregators. Every musical work, and every penny generated is very necessary to these families.
The Music Modernization Act created the blanket digital mechanical license. This move from one-off copyright licenses to a blanket license was a dramatic improvement in US mechanical licensing. However, the suggestion that rights held at the inception of this blanket license might remain, in perpetuity, with the original copyright grantee was frightening. I concur with the Office’s proposed rule and legal analysis of the relevant statutes and authorities.
I appreciate the Office requesting comments on the mechanics of solving the payment issues, because for the independent publishers I speak with and for me personally, many operational questions arise regularly regarding The MLC’s uncharted territories.
As one of The MLC’s statutory goals is to provide transparency to songwriters and copyrightowners, I would ask that the Office require The MLC to notify copyright owners (1) if The MLC’s unilateral termination policy has already been imposed on payments previously paid or that are being held in the historical or current black box, and (2) when the adjusting payment required by the proposed rule had been made.
To be clear, this rule must absolutely be retroactive to inception date of The MLC. Beyond the simple, clarifying amendment to the MMA, I believe there are additional, related issues that must be resolved:
1) What is The MLC’s “business rule” regarding the MLC/HFA Song Code for the terminated work? Prior to the inception of The MLC, the Harry Fox Agency would assign one HFA Song Code fr the work and its pre-termination parties, and a different HFA Song Code for the work with the post-termination parties.
What happens now? Do these multiple HFA Song Codes remain in The MLC’s database? Will there continue to be two separate MLC/HFA Song Codes, particularly given the Harry Fox Agency continues to license physical and download mechanicals on behalf of many publishers? Is it reasonable for the HFA Song Code to be the same as The MLC Song Code, when there is no derivative works exception in Section 115?
2) Which party is entitled to the Unmatched (Black Box) royalties, the related interest fees and to The MLC’s investment proceeds for a terminated work?
Finally, it should be noted that the initial concept proposed by The MLC Board (that the server fixation date should impact termination dates) most likely would have served large publishers, not songwriters.
It is crucial that the Copyright Office exercise vigilant oversight and governance of The MLC’s reporting regarding any payment obligations to copyright owners. Specifically, composers, songwriters and their heirs must have as significant a voice as the largest publishers and copyright aggregators.
Additionally, in the spirit of full transparency, I request full disclosure of board or committee votes, minutes of meetings or other documentation of process. For me and others like me, this would tremendously enhance our understanding of The MLC.
Decisions are being made by The MLC’s board and committee members, while the general MLC member or songwriters have no mechanism to gain information regarding the discussions, the decisions and the implementations thereof. Access to minutes and notes would provide valuable insights to the general membership.
I applaud the Copyright Office for moving swiftly to create this rule and clarify and codify how The MLC must treat copyright terminations. It is important that this rule be dictated by the Office as it is absolutely not The MLC’s job todecide who controls rights and is entitled to collect royalties.
That said, a “business rule” established by The MLC could have the effect of law absent vigilance by the Copyright Office.
On behalf of my family and clients, I wholeheartedly support this proposed regulation, and I truly appreciate the Copyright Office’s consideration of my comments.
North Music Group LLC