Guest Post: Taylor’s Guitar

By Charles J. Sanders

Recently, a viral video originating from Waxahachie, Texas made the social media rounds featuring the winning bidder of a Taylor Swift guitar immediately, publicly destroying it with the auctioneer’s hammer.  The perpetrator claims the stunt was intended as a light-hearted act of political satire protesting celebrity endorsements of a presidential candidate he does not support.  Most folks of a similar political bent cheered gleefully, while members of the other camp generally eye-rolled and shrugged their way through what appeared to be a somewhat more mean-spirited statement than the disgruntled, new owner was willing to acknowledge.  It’s tough to tell, but hey, free speech is free speech.

I suppose that in a world in which the legendary, guitar-smashing prowess of a Pete Townshend or Jimi Hendrix has long been celebrated, and in a country where Stan Laurel and Oliver Hardy turned the dismantling of upright pianos into an art form, perhaps the nonchalant reactions over the sad end to the icon’s former axe are understandable.  We are surely a country and a music community with bigger issues on our plate.  That reality, combined with the dangers of crying wolf being what they are, would ordinarily render the engagement in a humorless, long-winded diatribe against a gavel wielding, wannabe cowboy defacing a guitar a meaningless exercise. 

But in my role as chair of the National Music Council of the United States, the Congressionally-chartered umbrella organization of American music groups advocating for the advancement of musical culture and education, I feel obliged to at least offer reflections on what some may consider to be the far less-benign overtones of this seemingly trivial event. In simplest terms, the alternative of silence is made unacceptable by the ghastly results that such a non-response has produced in the past, particularly when it comes to the long, grim, global history of political violence against music creators and musical culture.  Shining a light just seems the better course.

Last year, it was NMC’s honor to host a series of discussions with several incredibly brave members of the international music community fighting to keep creators and their works safe from political harm.  One such hero of musical culture is Dr. Ahmad Sarmast, founder of the Afghanistan National Institute of Music currently in exile under the protection of the Government of Portugal.  Dr. Sarmast, who had nearly been beaten to death in previous run-ins with the ultra-rightist Taliban movement over his audacious teaching of young, female Afghani music students how to play musical instruments, was unsurprised that one of the first targets of the resurgent Taliban in 2021 was his world-renown music program. 

The group’s initial act in its renewed crackdown on infidelity was the burning not only the school’s instruments, but also of a large percentage of musical instruments throughout the entire country.  The teacher, his students and their families fled for their lives to Qatar and then Lisbon, where they remain two years later in defiant pursuit of musical creativity and freedom.  This week, meanwhile, the Taliban announced its intention to bar the artistic depiction “of any living thing” throughout Afghanistan pursuant to Sharia law.

The experiences of another international champion of artistic freedom NMC interviewed, Cambodian Living Arts organizational founder Arn Chorn Pond, serve as an even more fraught example of violent, music-related suppression and its horrific results.  Professor Pond, whose parents’ national opera company in Phenom Penh was one of the great gems of Southeast Asian musical culture, was a ten-year old flautist when ultra-leftist Khmer Rouge terrorists seized power in Cambodia during the mid-1970s.  The party’s first acts of cultural cleansing included the summary execution of most musicians and composers (including his parents and family), the destruction of virtually every traditional and modern musical instrument in the country, and the banning of all unapproved music on threat of death. 

The details of young Arn’s enslavement and unspeakable torture, even as he was relied upon as a resource for the creation and performance of new and “acceptable” Khmer musical works, are far too graphic to repeat here.  It has taken him a half-century following the defeat of the Khmer to rekindle the light of traditional Cambodian musical culture throughout his nation, all the while carrying scars that cannot possibly be fully healed even after a lifetime of fighting for greater protections for others.    

Other historical examples are legion.  In 1973, one of the first acts of the Pinochet military junta following its coup in Chile was the arrest of progressive singer-songwriter and nationally celebrated guitarist Victor Jara.  Rather than merely destroying his confiscated guitars, the regime mutilated both his hands prior to executing him at the National Soccer Stadium as a warning to others who might be contemplating musical protest.  Days later, the great Chilean poet Pablo Neruda was dead, as well.

Soviet dictator Joseph Stalin terrorized the towering composer Dimitri Shostakovich into an emotional wreck through political manipulation and death threats starting in the 1930s. Nazi Fuhrer Adolph Hitler launched an immediate program of terror against “degenerate art and artists” upon rising to power in 1933, culminating in the forced expatriation and eventually the execution of Germany’s greatest composers, conductors and performers (many of them Jewish victims of the Holocaust).  One such target, the poet and songwriter Ilse Weber, actually composed the famous lullaby “Wiegala” while imprisoned at Prague’s Terezin concentration to comfort the children in her care.  She later volunteered to accompany her physician-husband and those children to Auschwitz, where they were murdered in 1944 just as she expected they would be.  Only her music miraculously survived, attributable to the panic of the fleeing killers at war’s end.

And finally, in our own country the great jazz singer Billie Holiday was one among many American creators and artists with more than just a passing acquaintance with the travails of brutal, sometimes fatal repression.  Intimidation of music creators knows no geographical or political boundaries. 

As desperately uncomfortable as these past and continuing events may be to contemplate, the crucial reason to educate ourselves about them is their value as examples of exactly what must be avoided at all costs in the future.  Clearly throughout history, music creators and performers have not only been frequently subject to pressure to conform, or to participate in propaganda efforts by governments and extremist groups, but also victimized by repressive actions up to and including murder to enforce their silence. 

This depraved strategy often eliminates the most persuasive voices of protest, while at the same time setting an example of what happens to those less-visible citizens who choose dissent.  The threatening or carrying out of violent repression against outspoken music creators, performers and educators is simply one of the preferred means of warning everyday people in the bluntest possible terms, “if this is what we’ll do to them, imagine what we’ll do to you.” 

Nevertheless, even armed with such knowledge one might still legitimately ask in the current instance, “what has any of this really got to do with a laughing man in a cowboy hat destroying a celebrity’s former musical instrument?”  Well, probably nothing.  But potentially everything.

Visitors today to Berlin often wander over to the enormous square fronting the library at Humboldt University, a revered institution of learning whose alumnae include some of the greatest thinkers and artists in western history, from Mendelssohn and Heine to Planck and Einstein.  The empty cobblestoned plaza, restored after repeated wartime bombings some 80 years ago, remains completely devoid of any structures whatsoever.  There is only a barely discernable, rectangular glass plate embedded into the pavement in front of the library, allowing viewers to gaze downward into a room of empty bookshelves two stories below, and an equally flat plaque sunk into the ground next to it.  That view, gazing through the glass darkly into history, is why most visitors come. 

This is the very spot on which Joseph Goebbels lit the bonfire of books written by many of Humboldt’s most illustrious graduates, and where the people laughed and cheered as those works burned in 1933.  The empty shelves are self-explanatory, and the plaque has only one simple quote, written by Heinrich Heine fully one hundred years prior to the day that the Nazis struck their match. “Where they burn books,” it reads in German with extraordinary prescience, “they will eventually burn human beings.” 

As our own Mr. Twain was fond of reminding us, while history doesn’t actually repeat, it surely does rhyme.  Is a private citizen smacking a recently acquired guitar with a hammer for political effect the same as a government or terrorist group burning a book, banning a musical work for its content, or assaulting a creator?  No, probably not.  Was the destruction of the Waxahachie guitar a symbolic, political warning issued by an individual or group seeking power through intimidation, intended to be interpreted as a threat of actual violence to any one or all of us in the music community? 

That’s a harder question to answer.  We simply do not and cannot know the intent, effect, or seriousness of the action at this time, nor do we possess Heine’s cursed gift of farsighted genius. 

As a result, on the advice of the American bard of Hannibal, Missouri, we less-gifted prognosticators are left with just one inquiry that absolutely must be asked under this circumstance –and in every other instance like it– for the safety, security and freedom of everyone in our music community and in this country:

“Does the Waxahachie event, or any subsequent one, rhyme?” 

Whether it does or not, now or in the future, will in large part depend on us– not just on the folks with the hammers and the matches.

About the author: Attorney, historian and author Charles J. Sanders is outside counsel to the Songwriters Guild of America, chair of the National Music Council of the United States, and an adjunct professor of music business and its history at New York University.  For more information, visit https://www.musiccouncil.org/. All opinions are his own.

MIC Coalition Letter to @CopyrightOffice about @GMRO_PRO

Remember the “MIC Coaltion”? We haven’t heard from them in a while but they suddenly surfaced with a vengeance in the form of this letter to the Copyright Office under the guise of “PRO proliferation.”

This is the MIC Coalition membership. The MIC Coalition is dedicated to one thing and one thing only–screwing songwriters as hard as they can. And frankly, anyone else who gets in their way. If you’re good with zeros, you can add up the total market capitalization of all the companies that these trade associations represent and you will be into the $50,000,000,000,000 range.

That’s right, $50 trillion–and all these companies are protected by the government through the longest running antitrust consent decrees in the history of the United States. And who are they protected against? Songwriters. Pullllleeeeeeze.

With one exception: Global Music Rights or “GMR”. And while the letter to the Copyright Office doesn’t come right out and say it, what these people hate the most about GMR is that these behemoths have to actually negotiate directly with GMR rather than hiding behind the government in the rate courts. That’s right, they truly hate that free market. While the MIC Coaltion’s letter raises issues about multiple PROs, the one they really have the wood for is GMR because GMR has an extremely valuable catalog. In fact, if you can judge by comparing private equity placements, GMR–based on true free market licensing–is about 3x more valuable than BMI–based on the government’s crap deals. Which also pisses them off.

You also have to understand that these MIC Coalition people are hugely pissed off about a recent BMI rate court case that applied GMR benchmarks–free market negotiations–to set the government’s consent decree rates. Rates that are supposed to approximate what a willing buyer would pay a willing seller in the government’s version of free enterprise. That case is on appeal right now. You can get a flavor of just how silly this argument is from a post on Artist Rights Watch that discusses the case in detail or read this revealing friend of the court brief from the BMI rate court appeal.

The reason the trillionaires hate GMR so much is because songwriters got together and started their own PRO. Freedom of association, freedom of contract and free to bargain collectively, all quintessentially American values protected by the Constitution. Even though many radio stations settled an antitrust case with GMR resulting in a long-term license, they obviously haven’t given up sniping at the startup.

Unfortunately, the trillion-dollar soul crushers seem to have conned Congress into believing that Big Government is the way to go instead of protecting the free market. The plot sickens.

Are You Better Off Today Than You Were Five Years Ago? Selected comments on the MLC Redesignation: Abby North, North Music Group

The Copyright Office is soliciting public comments about how things are going with the MLC to help the Office decide whether to permit The MLC, Inc. to continue to operate the Collective (see this post for more details on the “redesignation” requirement). We are impressed with the quality of many of the comments filed in the “Initial Comments” at the Copyright Office. As there will be an opportunity to comment again, including to comment on the comments, we will be posting selected Initial Comments to call to your attention. You can read all the comments at this link. If you are hearing about this for the first time, you have until June 28 to file a “reply comment” with the Copyright Office at this link.

You will see that there is a recurring theme with the comments. Many commenters say that they wish for The MLC, Inc. to be redesignated BUT…. They then list a number of items that they object to about the way the Collective has been managed by The MLC, Inc. usually accompanied by a request the The MLC, Inc. change the way it operates.

That structure seems to be inconsistent with a blanket ask for redesignation. Rather, the commenters seem to be making an “if/then” proposal that if The MLC, Inc. improves its operations, including in some cases operating in an opposite manner to its current policies and practices, then The MLC, Inc. should be redesignated. Not wishing to speak for any commenter, let it just be said that this appears to be a conditional proposal for redesignation. Maybe that is not what the commenters were thinking, but it does appear to be what many of them are saying. Perhaps this conditional aspect will be refined in the Reply Comments.

For purposes of these posts, we may quote sections of comments out of sequence but in context. We recommend that you read the comments in their entirety. Today’s featured comment is by Abby North, who owns the independent music publisher and administrator North Music Group. Abby was kind enough to participate as a panelist at the 3rd Annual Artist Rights Symposium that David hosts at the University of Georgia Terry College of Business, and also testified at the House Judiciary Committee IP Subcommittee hearing held in Nashville to grade the MLC, Inc. (read Emmanuel Legrand’s reporting on that hearing at this link).

Abby has a number of ideas about meaningful changes that the MLC, Inc. ought to make to its operations and its approach to its fundamental job–timely and accurately accounting for all the money it receives.

Read Abby’s full comment at this link.

MLC BUSINESS RULES THAT CONTRADICT LAW
During the IP Subcommittee hearing held by Chairman Issa,6 the Chairman cautioned MLC, Inc. CEO Kris Ahrend, “…no question at all, what you’ve been making looks a lot like rules.”

The US copyright law permits authors or their heirs, under certain circumstances, to terminate the exclusive or non-exclusive grant of a transfer or license of an author’s copyright in a work. 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 subsequently become the original publisher in the United States.

The MLC had made a unilateral determination that rights held at the inception of the new blanket license might remain, in perpetuity, with the original copyright grantee. The MLC initially ignored that the derivative work exception does not apply in the context of the mechanical blanket license.

Fortunately, the US Copyright Office stepped in to clarify that the appropriate payee under the mechanical blanket license to whom the MLC must distribute royalties in connection with a statutory termination is the copyright owner at the time the work is used. When The MLC envisions a new policy, members should be provided a mechanism to provide input related to this policy, prior to it being adopted.

Members must be given a greater voice in business rules and operations of The MLC. Hands-on music publishing administrators have deep insights into workflows, efficiencies and UI/UX. Members need to be consulted with and given opportunities to drive the future of The MLC’s
website and technologies.

The MLC has made unilateral decisions regarding how it treats public domain works. It invoices the DSPs for streams of recordings that embody these public domain works, but no publisher is entitled to these royalties. That means the MLC may collect money it may not pay out. What rule gives The MLC the right to collect but not distribute?

COMMITMENT TO ISWC AS GLOBALLY UNIQUE IDENTIFIER FOR MUSICAL
WORK

Recently, the PRS (the UK-based Performance Rights Organization) completed a proof of concept that allowed record labels to request assignment of an ISWC to identify a musical work embedded in that label’s recording.

This proof of concept provides a necessary step in helping CMOs identify musical works, contributing parties and recordings of these works.

It also firmly demonstrates the global CMO ecosystem’s commitment to the ISWC as the globally unique identifier for the musical work. Every music publisher and every CMO…other than The MLC…relies on the ISWC to identify a musical work.

Instead, The MLC relies on the HFA Song Code, now also known as the MLC Song Code. The only societies in the world that use these codes are HFA and The MLC. Every other society identifies musical works with an ISWC, which unlike the HFA Song Code or MLC Song Code,
functionally acts as a bridge to the International Party Identifier (IPI) and now, the International Standard Recording Code (ISRC).


For The MLC to some day truly be the gold standard in CMOs, it must follow the rest of the world’s lead and require and include the ISWC whenever the ISWC exists. The MLC Song Code may be used as a disambiguator, but it must be used in conjunction with an ISWC. This is how the other societies work: they have their own proprietary identifier, which accompanies the ISWC to allow positive identification of works.

In addition to ISWC as the work identifier shared by the world’s music publishing and rights management community, IPI is the global identifier for the songwriter and publisher. The MLC must commit to including the IPI for any writer or publisher that has been assigned an IPI.

SPEED OF CLAIMING AND MATCHING
According to The MLC in its redesignation comments, “Finally, The MLC has already established itself as a leader in the industry, setting high standards for speed, volume, transparency, efficiency, outreach and member support.”

As of this writing, works I claimed manually in the claiming portal 73 days ago still have not been processed.

Unless I am misunderstanding the process, this means The MLC has already missed two distribution periods.

This is too much time. If there is an issue with the claims, there should be some human communication from The MLC explaining the issues.

If there are no issues, what could possibly be the cause of such a delay?

The oversight body must provide guidelines for The MLC regarding reasonable times from delivery of a match or claim by a member to processing by The MLC.

I also recommend the addition of an interface in the MLC portal for communication between The MLC and the member. For example, if every time I log in, I see a red flag in the interface indicating action is required on my part, I could potentially assist in speeding up the time The MLC takes to process my data. I also would be aware of any potential issues.

SONGWRITER PORTAL
The MLC’s website says it has distributed to “publishers and songwriters.” However, it must be clarified that the only songwriters that directly receive royalties from The MLC are selfpublished, self-administered songwriters that a) are aware of The MLC; b) have become members; and c) have delivered data to The MLC regarding their works and recordings of their works.

Songwriters that are either published or administered by a publisher have no mechanism with which to deliver corrections or missing data regarding their works. Instead, a songwriter that may have had one or many previous deals typically has no relationship with the previous publishers. Even songwriters in current publishing deals may not be able to get their calls returned much less convince their publishers to add or correct data in a timely manner.

Consequently, as many advocates have suggested since the roundtables that occurred prior to the inception of The MLC, The MLC must provide a portal within its website for published and/or administered songwriters to deliver data regarding their works. This data must then be reviewed by The MLC for accuracy, and then The MLC must communicate with the publishers to confirm
accuracy and add the missing or corrected data to the public portal.

It is simply unfair that songwriters have no way to guarantee The MLC has the necessary data to pay these songwriters’ publishers if they are willing to do the matching work at their own expense.

According to the USCO’s website FAQs regarding Title 1 of The Musical Works Modernization Act, “Once established, the MLC will establish and administer a process by which copyright owners can claim ownership of musical works (and shares of such works).” In fact, even though an administered songwriter is the legal copyright owner of his/her musical works, The MLC provides no process by which that songwriter/copyright owner can claim ownership of musical
works.

OVERCLAIMS TOOL
The MLC recently added an Overclaims Tool – only for registrations made within the last 90 days. If you submit a registration and it conflicts with a work that’s older than 90 days, that conflict will not appear in your portal.

According to The MLC:

“Please note: A work can only go into overclaim if shares are added to the
work within 90 days of the work’s registration, based on the “Creation Date”
in the work details.

If you are attempting to claim shares over 100% on a work that was created
more than 90 days prior, you will need to reach out to The MLC Support
team here.”

As a publisher/administrator of works registered decades ago, how would I know if someone has attempted to claim my legacy work and created an overclaim?

I do not recall receiving any announcement seeking publishers to participate in working groups to provide input related to the Overclaims Tool. Experienced hands-on administrators should be given the opportunity to provide insights into functionalities of proposed additions to the MLC portal prior to development of the technology.

Are You Better Off Today Than You Were Five Years Ago? Selected comments on the MLC Redesignation: American Association of Independent Music (A2IM)

The Copyright Office is soliciting public comments about how things are going with the MLC to help the Office decide whether to permit The MLC, Inc. to continue to operate the Collective (see this post for more details on the “redesignation” requirement). We are impressed with the quality of many of the comments filed in the “Initial Comments” at the Copyright Office. As there will be an opportunity to comment again, including to comment on the comments, we will be posting selected Initial Comments to call to your attention. You can read all the comments at this link. If you are hearing about this for the first time, you have until June 28 to file a “reply comment” with the Copyright Office at this link.

You will see that there is a recurring theme with the comments. Many commenters say that they wish for The MLC, Inc. to be redesignated BUT…. They then list a number of items that they object to about the way the Collective has been managed by The MLC, Inc. usually accompanied by a request the The MLC, Inc. change the way it operates.

That structure seems to be inconsistent with a blanket ask for redesignation. Rather, the commenters seem to be making an “if/then” proposal that if The MLC, Inc. improves its operations, including in some cases operating in an opposite manner to its current policies and practices, then The MLC, Inc. should be redesignated. Not wishing to speak for any commenter, let it just be said that this appears to be a conditional proposal for redesignation. Maybe that is not what the commenters were thinking, but it does appear to be what many of them are saying. Perhaps this conditional aspect will be refined in the Reply Comments.

For purposes of these posts, we may quote sections of comments out of sequence but in context. We recommend that you read the comments in their entirety.

Today’s featured comment is from A2IM, the American Association of Independent Music. You can read the entire comment here. A2IM raises some good points including suggesting that the redesignation be conditioned on The MLC, Inc. meeting beneficial targets. We have emphasized parts of the quote for impact but that emphasis is not in the original.

Distribution of Unmatched Royalties
A2IM is deeply concerned with the processes around the so-called royalty “black box” and finds the present searchability of unmatched royalty data to be insufficient. The Copyright Office should consider conditioning MLC redesignation on further delay in the distribution of these funds, presently estimated at over $300 million, until the MLC fully implements improvements to the system that result from this periodic review.

Under the Act and subsequent regulation, if the MLC is unable to locate the rightful copyright owner of a particular work, the MLC will deposit accrued but undistributed royalties in the black box, and after three years, the funds may be released to music publishers based on market share. A2IM strongly supports all efforts to fully distribute digital audio mechanical royalties to rights holders, and commends the MLC for seeking to improve the enormous amounts of unmatched royalties present at the time of the Act because the DSPs were not able to match and pay to the respective copyright owners.

The distribution of unmatched royalties, however, currently follows a dubious formula.
This policy clearly benefits the major music publishers and penalizes smaller songwriters/publishers. Failure to match occurs for numerous reasons, but many are related to scale. Lesser-known songs from genres with less broad commercial appeal, songs with titles in foreign languages, and songs tied to digital files with less robust data all can lead to unmatched royalties, and all these factors are more likely to occur with musical works from the independent sector, and from publishers with smaller market share. At present, there remain too few options and too many hurdles for matching and claiming works, meaning that barriers to entry in freeing royalties from the black box pool persist to an unacceptable extent.

Furthermore, the current matching tool is not versatile enough to effectively match many titles, leaving a significant number of songs unmatched and contributing royalties to the black box. The present system fails to account well for partially matched songs, meaning instances of works authored by multiple songwriters represented by multiple publishers matched to one or more entities with royalty rights, but not to all such creators. The MLC often cites numbers of matched royalties without specifying the percentage of titles that are fully matched versus partially matched. It is crucial for the MLC to provide clear statistics on fully matched, partially matched, and unmatched titles to ensure transparency and build trust among rights holders.

There are also many instances of royalties being mismatched, and there is no easy recourse for rights holders to resolve these issues. The MLC must acknowledge this problem and establish a straightforward process for rights holders to report and correct mismatches. Moreso, the MLC must invest in improving the matching tool to enhance its accuracy, efficiency, and ease of use so that those most impacted (predominantly independent artists and writers) can claim their royalties.

Addressing unmatched royalties requires an all-hands-on-deck approach. Many legacy songwriters suffer because their publishers do not prioritize entering or updating relevant data. One easy improvement would be for the MLC to create a mechanism providing songwriters with recourse in this situation.

Dave Rowntree is Suing the UK Performing Rights Society Over Misallocation of Unmatched Royalties (Black Box)

According to press reports, Dave Rowntree of Blur filed the UK equivalent of a class action lawsuit against PRS (the UK version of ASCAP and BMI). The claim is a “collective proceeding” filed with the UK’s antitrust tribunal. The class action established a website to communicate about the claim with interested parties. The website says:

Collective Proceedings Against PRS for Music

If You Were a Writer Member of the Performing Right Society at Any Time Since 9 March 2017,
a Proposed Legal Claim Could Affect Your Rights

On 27 February 2024, the claim was brought against PRS that asks the Competition Appeal Tribunal for permission to go forward as an “opt-out collective action.”  The claim concerns the way in which PRS distributes, or permits to be distributed, certain royalty sums that are called in the PRS Rules and Regulations (“PRS Rules and Regulations”) and the PRS Distribution Policy Guide terms such as  “unmatchable” (including “copyright control”), “non-distributable”, and “unclaimed” and colloquially referred to within the music industry as “Black Box” royalties. The majority of Black Box royalties are royalties belonging to PRS writer members but when the Black Box royalties are distributed, the distribution is heavily skewed in favour of publishers who receive a large portion of the writer share. In other words, Black Box royalties are transferred from PRS writer members and given to PRS publisher members who have no right to those royalties.

David Rowntree seeks to represent the class of PRS writer members who have lost money arising from the proposed claim.

Of course, the Mechanical Licensing Collective is sitting on hundreds of millions of black box money for the US as well, and may end up being the defendant in a separate class action at some point in the future.