Bob Lefsetz, a former entertainment lawyer, has been writing the Lefsetz Letter for over a decade now. Typically a pretty inside-baseball view of the music industry with analysis, reviews, and awards show chatter, the Lefsetz Letter has gotten considerably more exposure in recent months because of how many women and men are submitting anonymous allegations of harassment to it.
In January, Lefsetz circulated a link to an open letter directed at Republic Records executive Charlie Walk written by Tristan Coopersmith, a former coworker who alleged sexual misconduct. Walk was placed on leave by Republic and Lefsetz is now facing legal threats for passing along the link to his readers. Readers continued to send Lefsetz emails alleging other misconduct from Walk as well as other anecdotes, anonymous or not, of sexual harassment in the industry, which Lefsetz then circulated through the newsletter.
In response, The Daily Beast published a glowing piece on Lefsetz’s work exposing sexual misconduct in the industry. It frames Lefsetz’s letter as the “first place” for women in the music industry to share their stories (despite the fact that several otheroutlets have also been covering the topic). “Bob is like an accidental hero,” guitarist Paula Franceschi tells the outlet. “He’s the kind of example we need out there, men stepping up for women.” But there’s no mention in the piece of the fact that, for years, Lefsetz has frequently written sexist statements about women’s bodies in ways that certainly contradict the depiction of him as “an accidental hero.”
[Editor Charlie sez: This tinkering with the board seats changes the songwriter vote from 2/10 to 4/14, a change from 20% to 28% on the new collective created by the MMA, aka the self-licking ice cream cone. This board structure is still wildly out of sync with every other creator collective in the world and will no doubt be opposed by ex-US writers. Remember–the MMA covers all songs ever written or that ever will be written, including both US and ex-US works exploited in the US. If the last compulsory license is a guide, the MMA will last 100 years after the Spotify IPO. And still does nothing to police the mass NOIs that are filed every day. But good news about extracting support for Google-opposed Copyright Small Claims Court.]
What the law ultimately says is up to members of the House and Senate, who will write the legislation and the subsequent regulations, but in the meantime, negotiations…have resulted in a proposal that allows songwriters and composers to have four seats on the now-expanded 14-seat board of directors, instead of the initially allotted two seats for songwriters on a smaller 10-seat board; while the unclaimed royalties oversight committee will now be evenly divided between publishers and songwriters. It also has resulted in additional clarifications to how payouts from unclaimed funds are distributed.
While the…the NSAI and SONA…had already come out in favor of the proposed legislation, the Songwriters Guild Of America initially withheld endorsing the legislation, saying it had some reservations about elements of it. But now SGA president Rick Carnes says his group is on board….
As part of the proposed changes, Carnes says that exclusionary clauses in older songwriter/publishers contracts sometimes prevent songwriters from collecting royalties because that clause allows publishers to take the stance that they don’t have to share the money with songwriters if it comes in unattributed to a song. “We tried to clarify that language so songwriters can get their fair share,” Carnes says.
In another move, as part of the negotiations with songwriters, the publishing community has “pledged to lend its full support on Capitol Hill to secure quick passage” of the pending Copyright Alternative In Small-Claims Enforcement (CASE) Act of 2017, which will provide music creators with an alternative to a full blown copyright infringement actions against unlicensed users of music.
[Editor Charlie sez: The consensus behind the CLASSICS Act demonstrates just how unready for prime time is the Music Modernization Act. If we’re not going to stand behaind Chairman Nadler’s Fair Play Fair Pay, the CLASSICS Act deserves a chance to stand alone and not be tied to the punitive and controversial Music Modernization Act.]
The 1976 copyright act federalized copyrights for post 1972 sound recordings. Sound recordings made pre-1972 were covered and remain covered by state copyright laws. The 1976 act did not strip the works of copyright protection. Several years ago digital broadcasters and non-interactive streaming services all decided (simultaneously) that the Digital Performance Right in Sound Recordings Act […]
[Editor Charlie sez: Songwriters should note the increase in digital and physical sales and remember that the last rate hearing continued to freeze mechanical royalties on physical and permanent downloads at 9.1 cents minimum statutory–where it has been set since 2009 and will remain until 2022. Inflation alone would peg that rate at 11 cents today, if it hadn’t been frozen and increases for inflation just keeps the rate the same. So what that really means is by freezing the rate at 9.1 cents in 2009, the rate has actually decreased for inflation. That means that the mechanical rate has actually decreased by approximately 20% since 2009.]
Bandcamp is reporting a record year for 2017. Here are some highlights:
- Digital album sales were up 16% vs. a 20% industry decline)
- Track sales up 33% vs. a 23% industry decline
- Merch sales up 36%.
- Growth in physical sales was led by vinyl (up 54%) and CD sales up 18%
“Meanwhile, standalone music streaming companies continued to lose money in 2017,” the company wrote in a blog post chronicling its “stellar” year. ” The seemingly inevitable upshot of these two trends is that the majority of music consumption will eventually take place within the subscription rental services of two or three enormous corporations, who can afford to lose money on music because it attracts customers to the parts of their businesses that are profitable.”
[Editor Charlie sez: Professor Taplin gave a thought provoking keynote for the Artist Rights Symposium hosted by David Lowery at the Terry College of Business January 23. Based on his book Move Fast and Break Things, many in attendance got a new perspective on the influence of Big Tech and particularly Facebook and Google in our lives and in the careers of artists. ]
With a new focus on acquiring content that was previously relegated to pay TV services, social media and tech giants like Facebook, Amazon and Google are focusing more on disrupting traditional pay TV, director of USC’s Annenberg School of Media Innovation Lab and author Jonathan Taplin told an audience at theopening keynote of the NCTC Winter Educational Conference here.
Taplin, whose book Move Fast and Break Things traced the monopolization of the internet by Google Facebook and Amazon, noted that while over the years those three companies focused on other business segments, they are increasingly honing in on the video business. Facebook’s $610 million bid for streaming rights to Indian Cricket matches – it lost out to Fox – is just one example of how serious the tech giants are becoming about video.
The largest corporations of the world — Google, Amazon and Facebook — are going to be the new gatekeepers, Taplin said.
In addition to Cricket rights, Facebook has tried to incorporate its GUI into set-top boxes as part of the Federal Communications Commission’s “Unlock the Box” initiative back in 2016, which has since fizzled in the new administration but could surface again. Taplin said giving Facebook access to set-tops cold decimate pay TV’s local ad business.
“They’ll keep trying that,” Taplin said. “So, you’ve got to be careful.”
Adding to the pressure is that the next generation of TV viewers have grown up with 100-Mbps broadband connections, creating their own media systems without cable.
“You have to be aware that this notion of cord-cutting is real,” Taplin said. “These companies are coming for your business.”
Taplin said operators can fight back in several ways, offering skinnier programming bundles in response to competition and reliable, high-speed data connections. He added that the traditional method of delivering and buying programming also will change in the future.
The current ecosystem where distributors are forced to buy large bundles of programming from content providers, even those shows that have little viewership, has to change, he added.
“A lot of those channels don’t pass the ‘who cares’ test,” Taplin said. “You have to stand up to the channels that nobody is watching.”
[Editor Charlie sez: The Songwriters Guild of America was not included in the closed door negotiations of the controversial Music Modernization Act but has been able to negotiate key concessions since the MMA’s introduction. Rick Carnes and the Songwriters Guild deserve huge props for sticking up for songwriters. It’s not over, so stay tuned for further improvements as songwriters find out what’s in store for them.]
SONGWRITERS GUILD OF AMERICA ANNOUNCES THAT NEGOTIATED CHANGES TO MUSIC MODERNIZATION ACT ENABLE ENDORSEMENT OF BILL’S PASSAGE
Music Publishing Industry Support for Small Claims Act Also Secured
WASHINGTON — The Songwriters Guild of America, the largest and longest-established music creator advocacy organization in the United States, today announced it has negotiated changes to the pending Music Modernization Act (HR 4706) that will enable it to support passage of the legislation. Among the agreed-upon amendments to the bill are:
- the doubling of songwriter and composer representation on the board of directors of the Mechanical Licensing Collective established by the Act;
- the re-alignment of an Unclaimed Royalties Oversight Committee that will now have a 50/50 music creator and music publisher balance; and
- clarifications to the payments sections that will make it easier for music creators to get the full benefits of their negotiated publishing agreements as applied to the distribution of what the bill refers to as “unclaimed” funds by music publishers.
As part of the discussions leading to changes in the Music Modernization Act, the US music publisher community has also pledged to lend its full support on Capitol Hill to SGA’s efforts to secure quick passage of the pending Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017 (HR 3945). CASE will provide music creators with a much needed, opt-in alternative to expensive, full blown copyright infringement actions against unlicensed users of their music.
Speaking on behalf of SGA, multi-platinum songwriter and organization president, Rick Carnes, noted that, “the benefits of the pending Modernization law, with the changes SGA has successfully sought, have made the current bill deserving of our support. We continue to applaud the efforts of those members of the music creator and music publishing communities seeking further improvements and clarifications that would make the proposed legislation even more advantageous to American songwriters, composers and independent publishers. Still, the bill as it now stands would — on balance — benefit those creators we are sworn to protect significantly more than no bill at all. Our two-word mission statement is to ‘protect songwriters.’ After more than six months of hard work alongside our colleagues in the independent music creator community through Music Creators North America (MCNA), SGA feels, individually, that it succeeded insofar as possible in carrying out our mission.”
Under the agreed-upon changes, the Mechanical Licensing Collective board will now have four professional songwriter/composer voting members and ten voting music publishers. The Unclaimed Royalty Oversight Committee, whose role will be to oversee issues concerning ownership and distribution of so-called “unclaimed” royalties, will now have evenly balanced, “five and five” representation among ten voting members. As to clarifications regarding payment of music creator royalties received from the Collective by music publishers, the bill is now clearer in spelling out that such royalties are to be distributed on a title-by-title basis to songwriters under the percentages set forth in their publishing agreements. In other words, a songwriter or composer operating under an agreement that gives such creator the benefit of a 90%/10% split with its music publisher will have that same split applied in the distribution of “unclaimed” royalties that have been matched under the usage formula set forth in the legislation.
Other benefits of the legislation include establishment of a system that:
- is likely to substantially improve royalty payment compliance by digital distributors of music on a going-forward basis;
- changes in royalty rate determination formulas that will benefit both music creators and their copyright administrators; and
- the promotion of greater fairness for US performing rights societies in their negotiations with users.
“Among SGA’s important roles following the bill’s enactment,” continued Carnes, “will be to assist the songwriter and composer community in making sure that every music creator receives the full benefits intended under the Act. That includes publication of materials designed to inform and remind creators, in consultation with their legal and financial representatives, how best to ensure the maximum, accurate receipt of all royalties to which they are entitled.” Carnes also pledged that SGA will be in the forefront of efforts, along with its fellow MCNA music creator groups, to ensure that experienced, knowledgeable and — above all — independently-minded songwriters and composers are tapped to serve as board members of the Collective.
SGA, established in 1931, is the largest and longest-established advocacy organization run solely by and for songwriters and composers in North America. In addition to its role as a legislative advocate, SGA provides copyright administrative services and other informational and representation services to its national US membership upon request.
[Editor Charlie sez: A spectacular and detailed critique of the Music Modernization Act by Maria Schneider the five-time GRAMMY-winning composer and bandleader.]
When it comes to the newly introduced bill called the Music Modernization Act (the “MMA”), there’s good news and bad news.
First, I want to offer some good news. Many lawmakers from both sides of the aisle appear to be finally waking up to the fact that, in the absence of updated copyright laws, present-day technologies are destroying the livelihoods of music creators, especially workaday creators. Our elected leaders recognize that changes in the law need to be made. I think I speak for most music creators in saying, we are very grateful for that. We are grateful, because the big data companies (like Spotify and YouTube) and the big publishing/record companies (like Sony/Warner/Universal, who have equity in Spotify) have been systematically destroying the ability of most workaday music creators/musicians to make a living. So, there’s a new bill in the works, that on its face, might seem good – good enough that many are touting it. It would insure that a stream pays a mechanical. In theory, that would indeed be great news, and many of our lawmakers, and many in our industry have initially backed this bill.
But now, I need to report the bad news. The MMA was drafted primarily by lobbyists for the huge corporations that control the music industry. The MMA is over 100 pages long, and is “Exhibit A” for why people hate lobbyists and lawyers so much. When you dig into the carefully worded text (which I now have), it becomes very clear that the MMA is the result of cunning drafting that even further protects and insulates the all-powerful publishers and the big data companies. They’ve paved their own 4-lane highway to drive their Mack trucks over music creators yet again.
Let’s not forget that the copyright rights of all creators, workaday and hugely successful, are so important, that the drafters of the Constitution protected them right in the Constitution itself. But as I’ll explain in detail below, the MMA basically “outsources” the management of music copyright rights to two separate, “to-be-created” private corporations that will be entirely controlled by these very all-powerful industry players. That’s like outsourcing the environmental protection from oil spills to a private corporation controlled by BP and Exxon.
Here’s the outsourcing scheme the lobbyists driving the MMA have created: a newly-formed Corporation A will administer the payment of a streaming mechanical royalty that will be implemented, and Corporation B will essentially serve as the tax collector, seeking “assessments” from industry to pay for Corporation A’s activities. Even if it’s high time for a streaming mechanical, and if the outsourcing of something so important as the management of music copyright must be done, it should be done in a “bullet proof” manner, where the public’s interests, and music creators’ rights, are fully and carefully protected.