MUSICFIRST Executive Director CHRIS ISRAEL commented yesterday regarding current copyright laws on pre-1972 music.
He said, “Consumers’ preferences for how they access music have changed dramatically in recent years. Sadly, our copyright system hasn’t kept pace. Our antiquated laws treat artists’ works differently depending on the platform we’re using to listen to their recordings. While the inadequacies of our system are evident every day, TODAY (2/15) marks the 44th anniversary of one of our system’s most egregious flaws.
Thanks to a quirk in U.S. law, songs recorded before this date in 1972 do not have federal copyright protection, and that is a huge problem. Up to 15% of all the music on some digital radio services was recorded before FEBRUARY 15, 1972. Streaming, satellite and FM radio have entire channels dedicated to this iconic music, yet this anomaly in U.S. law allows them to use pre-72 music without requiring them to compensate the artists whose recordings they play on the air.
Many older artists have been forced to pursue fair compensation in a variety of state courts. This is extremely inefficient, unfair and unnecessary. Simple legislation will address this clear problem.
[Editor Charlie sez: Insightful must-read artist rights interview with Mike Huppe, the CEO of SoundExchange.]
During the following interview, held at the Omni Hotel in Nashville, we covered a variety of topics such as what Huppe calls the AM/FM Artist Loophole, the DMCA Safe “Ocean,” internet enabled auto dashboards and the organization’s new ISRC online searchable database. Read On…
NEKST: Do you expect SoundExchange’s distribution growth will continue? Mike Huppe: We’ve had unbelievable double digit growth for the past 7 or 8 years which won’t continue forever, but we are on track to have another up year in 2016. We paid out about $803 million last year and should be in the mid-$800s this year. It will naturally level out as we get bigger and the market matures.
Why are a handful of musicians — a substrata of society generally predisposed to fall on the left side of the political spectrum — ticked off at Zephyr Teachout, the progressive Democratic candidate in the 19th Congressional District?
Blame it on the internet. To be more precise, blame it on Teachout’s former work for Fight For The Future, a nonprofit “dedicated to protecting and expanding the Internet’s transformative power,” according to its own website.
In online postings and outreach to the media, several artists have denounced FFF as having an “anti-artist, anti-copyright agenda” — an allegation the group denies vociferously. Teachout served on the board of the group’s education fund, but stepped down earlier this year after announcing her candidacy.
Those calling for Teachout to respond include the jazz great Jack DeJohnette, a resident of the Catskills who, in a recent letter, told the candidate, “It disturbs me that someone who seems to be running in support of the people is not further tuned in to the needs of us artists, who ultimately might be your constituents.”
DeJohnette said in his letter that since the advent of the digital age, his royalties from recorded music have declined 90 percent. “I am all over YouTube,” he wrote, and “everyone but me gets an income from this.”
The most immediate bone of contention for those hammering Teachout on this issue — a list that also includes guitarist Marc Ribot and Red Hook author and filmmaker David Newhoff — appears to be proposed changes to the 1998 Digital Millennium Copyright Act, in particular a toughening of provisions that aim to prevent websites from hosting copyrighted material without the consent of the copyright holder. Currently, online service providers are generally protected from liability under the so-called “Safe Harbor” provision of the DMCA, which aims to balance the interests of internet users and copyright holders.
[Editor Charlie sez: Update on this June 29 post from MTP–it appears that Zephyr Teachout’s organization Fight for the Future made unsubstantiated claims in a fund raising email puffing up something that may not have happened at all, but certainly doesn’t appear to have happened the way they said. Remember that Fight for the Future made this statement in an April 6 fund raising email about the curious timing of their campaign against DMCA reform sent while Teachout apparently was on their education fund’s board of directors):
The Copyright Office has confirmed that (1) the DMCA reform comment page was hosted by regulations.gov so there was no “Copyright Office website”; (2) there were no “Copyright Office website servers”; (3) there was no “crash” (temporary or otherwise) since there were no Copyright Office servers; (4) the Copyright Office received no report from regulations.gov that its cloud based system had “crashed”; and (5) nobody from the Copyright Office “worked with” Fight for the Future to do anything.
There is also an open question of whether bots were used or some sort of batch submission API–batch submissions are evidently not permitted by regulations.gov. We also reached out to regulations.gov but they are not responsive.
Zephyr Teachout faced the voters yesterday in the Democratic Party primary for the 19th Congressional District to replace the retiring Chris Gibson (a former combat veteran bird colonel, Airborne Ranger with the CIB, Purple Heart, and other distinctions). In a weak start to her general election campaign, she seems to have tried to quietly resigned from a public association with a controversial anti-artist lobby shop rather than face legitimate questions from her artist constituents
While Progressives may be drawn to this former operator of the failed Lessig Super PAC (see Zephyr Teachout takes over Larry Lessig’s PAC), several musicians including Jack DeJohnette and Marc Ribot have publicly asked Candidate Teachout to publicly state her positions on protecting artist rights.
Good news: There are two bills currently pending in the House of Representatives to which Candidate Teachout seeks election that sum this up nicely but that are both opposed by the kind of people who gave money to the Lessig Super PAC she once ran. If elected, will Candidate Teachout endorse the Songwriter Equity Act and the Fair Play Fair Pay Act should these bills not pass in the current Congress and be reintroduced?
In particular, while being transparent, she could also explain why she was in the vanguard of one of the premier anti-artist operations and why that’s good for NY-19, an area that prides itself on having the highest per capita number of artists than anywhere in the United States.
She’s done neither–but appears to have quietly resigned from her controversial position with Fight for the Future “Education Fund”.
Now why do you suppose that happened and happened that way?
Transparency for Thee But Not for Me
If you’ve followed local politics in the 19th, you’ll know two things: First, Woodstock is in the district. Remember Woodstock? The defining musical moment for a generation? Remember Albert Grossman, Bearsville Studios, Big Pink, Bob Dylan and The Band? Levon Helm’s Midnight Ramble? All in Woodstock. In fact, I was able to attend a Ramble when Levon performed even though he was too sick to sing. Dying on the bandstand is rather emblematic of the credibility problem facing Candidate Teachout.
And nowhere is her problem more highlighted than in her governance position with the Fight for the Future Education Fund. You may not be aware that Candidate Teachout is–or maybe was–on the board directors of Fight for the Future Education Fund (right next to a self-described Google consultant).
The lobbying group is backed by the Consumer Electronics Association and the Center for Democracy and Technology, among others, including the usual “dark pool” foundations that appear in my view to potentially launder money for corporations who want to keep up appearances–such as Google. (Corporation gives to foundation which then gives to lobbying group or “public interest” group that furthers corporations agenda with public messaging–dark pool foundations.)
Four Questions for Zephyr Teachout Candidate US House of Representatives Democratic Primary NY-19
Do you personally support the anti-artist, anti-copyright agenda of Fight For The Future, where you served as Director of the Education Fund? If so, please explain why you hold that position. If not, please explain how your views differ from the messages of that organization.
Do you recognize that mass, online copyright infringement causes direct harm to people like me? As my prospective representative, will you fight for my ability to support myself and my family with my creative work?
You’re running on a message that is very important to democrats – holding corporations accountable and getting big money out of politics. Can you say without equivocation that Fight For The Future reflects these values?
Do you support Jerrold Nadler’s Fair Play Fair Pay bill, which would bring the US into conformity with the rest of the free industrialized world by paying artists for the commercial, terrestrial radio broadcast of their work (and put tens of millions in foreign royalties now being withheld due to the lack of US reciprocity into the pockets of US working artists)?
Now the question should be did she resign her post and if so, why? But the question remains, will she support Fair Play Fair Pay, a bill that would pay artists for radio play for the first time in U.S. history? A bill that is opposed by the MIC Coalition that counts among its members some of the biggest Washington spenders like Google and the National Association of Broadcasters?
A bill that would have direct impact on her constituents. Or is she going to side with the Silicon Valley billionaires and millionaires who backed her former Super PAC?
It’s a yes or no question. What’s the answer for Candidate Teachout?
[Editor Charlie sez: Karoline Kramer-Gould is the bravest person we know. Karoline was the long time Music Director of Cleveland’s tastemaker college AAA station WJCU who spoke out about her views on the issue and the tactics of the all-powerful National Association of Broadcasters in the NAB’s opposition to paying artist royalties for the sound recordings they built their business on. Karoline became a vocal advocate for the bi-partisan Fair Play Fair Pay Act and to date is the only person who actually put their job on the line for artists which is what can happen when you speak truth to power.
Karoline left WJCU shortly after speaking out, and was invited to meet with many Members of Congress about the bi-partisan Fair Play Fair Pay act in support of artist pay for radio play. She now reflects on her experience in a blog post we reproduce with Karoline’s permission from her blog at karolinekramer.com. And don’t forget to sign the petition at IRespectMusic.org!]
1. a dramatic change in the paradigm of a scientific community, or a change from one scientific paradigm to another.
A friend who works as a radio promoter called me last week to catch up. During the conversation, he asked me if I’m still looking for work in radio. I told him I didn’t think so. He was sad and tried to encourage me to continue to look for work in that field. He said he misses me. That a lot of promoters miss me. That I have so much to offer to radio.
I’ve been thinking a lot about that conversation.
Two weeks ago I was offered the opportunity to create and program a new Internet radio station. I declined. There was one simple reason. I don’t want to work in radio again.
I miss discovering and sharing new music. I miss the weekly chats with label folks and indie promoters. I miss artist interviews and concerts.
I love the time I spent in radio. I learned a lot. I made wonderful lifelong friends.
I used to think I couldn’t really be happy if I wasn’t working in radio. Now I know that I can finally be happy because I’m NOT working in radio any longer.
Most folks who work in radio have always worked in radio, starting in college. I didn’t start working there until I was in my 30s. I was a business professional in love with IT.
When I first started in radio, I was amazed at a lot of things that seemed normal there – things that would never fly in any other field. Behaviors, ideas, hierarchies. Outdated methodology for charts and advertising. I thought that radio people lived in a bubble. I still do. I loved the bubble. But now that I’m no longer there I can look at it and once again see how out of touch the industry is.
When the letter supporting #FairPlayFairPay and subsequent Huffington Post article came out in October, 2015, it struck a chord with the general public and musicians all over the world. I received hundreds of tweets and messages of support and encouragement. That overwhelming support was balanced by the near silence from the radio industry.
I left the radio station I was working with and began applying for jobs in the radio field. I didn’t receive rejection letters, just silence. At first I thought I was overthinking it – that there was something else going on, it wasn’t the letter and article. I wasn’t that important. But the longer I’ve been confronted with that silence, the more it confirmed my fears that I closed the door on that career path by speaking out.
When that realization hit, I was angry. Strike that. I was livid. I was furious that those who worked for larger stations in bigger markets didn’t say anything or acknowledge what I did. Their silence, to me, spoke volumes about their being complicit in the attempt to deny artists their basic rights – to be paid fairly for their work.
I cursed those taste-maker programmers I knew. They had an opportunity to join me. To raise their voices and add to the strength of the musicians. What kept them silent? Fear of upsetting the status quo? Or was it the biggest trap of all – safety? Perhaps they are safe and comfortable where they are and can’t fathom losing it?
I don’t know the answer. I only know that their silence speaks volumes to me. The people who claim to love music and artists, yet continue to work in a field that denies artists fair compensation, are showing us whose side they are on: their own.
On. Their. Own.
I will never join them in that complicit silence again.
The Turtles are suing SiriusXM in a “putative” class action being heard in California, New York and in Florida for infringing pre-72 recordings under the laws of those states. Sirius and Pandora seem to be hell-bent on denying pre-72 artists and their heirs any revenues for the wide exploitation of recordings from this era for reasons known only to them.
The Florida case in federal court brought claims against SiriusXM relating to Florida state common law copyright for (1) common law copyright infringement, (2) common law misappropriation / unfair competition; (3) common law conversion; and (4) civil theft.
SiriusXM won its motion on summary judgement in the federal trial court and The Turtles (aka “Flo & Eddie”) appealed to the 11th Circuit. In order to grant the summary judgement motion for Sirius, the federal trial court had to make a number of assumptions about unsettled areas of Florida state law that the appeals court were not prepared to endorse.
Federal courts in this situation have the ability to “certify” certain questions to an appropriate authority. The 11th Circuit has certified certain questions about the interpretation of Florida state law to the Florida Supreme Court. Depending on how the Florida Supreme Court answers these certified questions, the 11th Circuit will then be able to rule on the Turtles appeal.
So–while the Turtles have not won the substantive issues in the appeal as yet, they have lived to fight another day on appeal. To the extent anyone can read the tea leaves on these things, it does seem that the 11th Circuit was at least very interested in being fair to the Turtles and the putative class.
The certified questions are:
1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?
2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?
3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?
4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft under FLA. STAT. 772.11 and FLA. STAT. 812.014?
One of the remarkable things about the fight that music makers and music lovers are waging (and waging together) is that it’s a fight that knows no allegiance to political party. Courageous Republicans and Democrats are standing together for once on these issues––just as we Americans hope and urge them to, on so many issues––and, they’re doing so to improve the current landscape for American music makers.
He’s also co-sponsored (with numerous Republicans) the #SongwriterEquityAct to ensure that songwriters receive royalties that reflect the fair market value of their intellectual property. This Tuesday June 28th, Rep. Nadler has an important primary, and as a proud constituent who lives in the 10th District of New York, I’m voting for him. I’m casting my vote for courage.
I’m casting my vote for music. I’m casting my vote for respect. Decisions are made by those who show up. And I’m going to. Courage deserves support. #IRespectMusic