Show Me the Splits: Tiffany Red Illuminates Stealing Publishing

By Chris Castle
(A version of this post appeared on MusicTechPolicy and on Hypebot)

It’s unfortunately an old story, but that doesn’t make it right.

One of the most underpaid creatives in our business are songwriters who “just” write songs. “Just” is an odd word to use but it’s a common way to refer to those who give artists a voice because it really does all start with the song. And as Tiffany Red says in her video, the system is simply unjust.

“The system” is what has always been called “stealing publishing”. This is when an artist or a producer (and it happens with producers but for different reasons) threatens songwriters who created a song the artist may record with not covering that song unless the artist gets a chunk of the publishing. The amount can range all over the place, but often is at least 25% of the copyright. So not only are they not entitled to song’s earnings as a financial interest, they are definitely not entitled to the copyright because they created nothing.

On top of it, songwriters often have to eat many costs in order to get the song written, demoed and pitched. (I can’t tell you the number of times the songwriter demo essentially becomes the arrangement of the final recording, so “demo” is relative.). There’s a bunch of opportunities along the way for people to write themselves into the song when all they did was a job that they were probably being paid to do anyway. I have even encountered producers whose managers demanded a piece of publishing for the producer to even listen to an artist’s demos. 

On the producer side, some producers want a piece of all publishing on the record and if they actually write they want their contributor share as a writer ON TOP of the publishing they are already stealing. Why? What possesses anyone to think they are entitled to do this? And “entitled” is exactly the right word. 

One reason they steal publishing is because the producer royalty is unlikely to even recoup the producer advance in a streaming reality unless the track is a huge hit. (Remember that a producer gets a percentage of what the artist gets, say 30%ish, and the artist gets somewhere around 50% of the fraction of a penny per stream.) This is especially true of producers who enjoyed a lifestyle in the pre-streaming era and are trying to keep it going. It’s understandable, but that doesn’t make it right. 

And remember, the songwriter isn’t getting an advance. On top of the insult of stealing publishing, the artist has no intention of paying for it because the songwriter should consider themselves lucky to get the cover–which often is a career making record for the artist opening up income streams the songwriter never participates in.

When faced with these overreaching demands, songwriters have to make some hard choices. Occasionally I get to tell the artist’s team to fuck off. More often though–as Tiffany says–songwriters acquiesce.

I think Tiffany is also hitting at a point that Merck Mercuriadis made at the last Artist Rights Symposium that David hosts at the University of Georgia:

Let’s face it—this is insulting.  If I sat down and explained to my decent Greek working class parents that this is how songwriters get paid, they’d be shocked.  If you went to your bank manager and explained how songwriters get paid, they’d be shocked.  Doctors, lawyers, everyone who has some understanding of the economics of the world or what drives an industry and what creates value for an industry would be shocked by how songwriters are paid. 

But nobody can bring the frustration home like a songwriter on the receiving end of this injustice. Watch Tiffany’s video. Take 15 minutes out of your life and watch it from beginning to end with no distractions. She’s absolutely correct that until the artists stop, until they let their team know that stealing publishing is not acceptable and if they do it they are not only not helping the artist, but they’ll be fired–then it will start to change. 

She’s right about something else, too. A songwriter shouldn’t need a gatekeeper to protect them in a situation that should not be happening in the first place. There’s a line that we all learn from parents, teachers, coaches, mentors, the line between acceptable and unacceptable treatment of other humans, right and wrong if you like although that’s a bit simplistic. Stealing publishing is wrong, stealing publishing is on the wrong side of that line. This is what I think whenever I have to deal with the situation–how do you sleep at night?

Watch the video. it’s not a rant, it’s the truth.

by theinvisiblestagehand

The Broadcasters are Still Free Riding on Artists #IRespectMusic

Broadcasters set the example followed by Google, YouTube, Spotify and now TikTok. Let’s tell Congress broadcasters have to pay reasonable royalties in the bi-partisan American Music Fairness Act.

Please join the fight and sign the petition at the MusicFirst Coalition!

by Trichordist Editor

Better than Cats: The Copyright Office Seeks Public Comment on Periodic Review of the Designations of the Mechanical Licensing Collective and Digital Licensee Coordinator aka #TheReup

In case you missed it, the MLC, Inc. was handed a five year contract in 2019 to operate the mechanical licensing collective. This contract was worth millions and millons of dollars, but more importantly guaranteed that the Harry Fox Agency would have a job for at least another five years. The salty arrangement was the brainchild of the lobbyists, the controlled opposition and the Copyright Office–and has resulted in The MLC, Inc. sitting on hundreds of millions of other peoples money. 

The Copyright Office has posted a notice letting us know that the time has come for the circular admiration society also known as the 5 year review of the MLC and the DLC as required by Title I of the oh so modern Music Modernization Act (yet we keep comeing back to these age-old problems that are not modern at all). This is all conducted by the Copyright Office which in a meaningful way is simply reviewing how well the Copyright Office did with the designation of the MLC, Inc. as much as how well the MLC met expectations.

After suffering through establishing some regulations for the MLC that largely favored the services, the head lawyer at the Copyright Office threw down the pretenses and became employed as a lobbyist for Spotify. Another went to work for the National Association of Broadcasters to screw artists our of a performance right for sound recordings. Can’t wait to congratulate current Copyright Office staff on their employment futures after we get through this important reup for the MLC, Inc. and the lobbyists. I hear the chief butterfly killers have openings for copyright lawyers trained on the public purse.

The comment period in this vitally important review is divided into at least two parts: The special people, i.e., The MLC, Inc. quango and the DLC get to go first, and then the hoi polloi (that’s you and me). You’ll find this language buried at the very bottom of the Reup notice:

Interested members of the public are encouraged to comment on the topics addressed in the designees’ [i.e., the DLC or the MLC’s] submissions or raised by the Office in this notification of inquiry. Commenters may also address any topics relevant to this periodic review of the MLC and DLC designations. Without prejudice to its review of the current designations, the Office hopes that this proceeding will serve as an opportunity for any songwriter, publisher, or DMP who wishes to express concerns, satisfaction, or priorities with respect to the administration of the MMA’s blanket licensing regime to do so, and that any designated MLC or DLC will use that feedback to continually improve its services.

Bite your tongue now.

The Reup Copyright Office MLCDownload
by Trichordist

MTP Interview: We ask @Creators_ECSA President @Helienne Lindvall to Explain the European Parliament’s Streaming Economy Report from the Committee on Culture and Education

This post first appeared on MusicTechPolicy by Chris Castle.

The Culture and Education of the European Parliament issued an important report on the state of the creative economy. Our friend Helienne Lindvall, President of the European Composer and Songwriter Alliance, gives us some insights into the report and the context.

I know ECSA was involved in testifying for the EU cultural diversity report, can you tell us a little about the report, what prompted it and how does it help or hurt?

Streaming and the amount of issues it brought with it has been at the top of the agenda for European songwriters since the launch of Spotify. As an Ivors Academy Board Director, I was part of the inception of the UK #FixStreaming campaign which resulted in the UK Government calling for a complete overhaul of music streaming, and for the creation of music industry working groups to fix these problems. Meanwhile, similar lobbying efforts have been applied in Brussels by music creators across Europe. The EU has a fine history of promoting, supporting and protecting culture – in 2019, legislators proved it by adopting the DSM Copyright Directive. Now we need it to step up to help create a sustainable streaming environment. 

Rapporteur Iban Garcia del Blanco and his fellow CULT MEPs took their time to really listen to and understand the reality that music authors (ie songwriters and composers) face, and our proposed remedies, and I think the report reflects that.

Is the report designed to shape future legislation or rulemaking in the EU?

We look forward to seeing the European Commission work on such a strategy and take concrete actions to build a fair and sustainable music streaming ecosystem for all music creators.. 

MEP Garcia del Blanco said at the press conference that he would prefer if the industry stakeholders could sit down and fix these problems without further legislation, but judging from our experience in the UK, certain areas are easier to get a consensus on than others. The UK metadata working group has set parameters for improvements, which I believe can easily be adopted across Europe and beyond. However, when it comes to remuneration and making it fairer for songwriters and performers, we have met with resistance from labels and platforms – unsurprisingly, perhaps. Getting increased transparency has also proved more difficult. If this resistance remains we will keep pushing for Government intervention and legislation. 

The report calls for a comprehensive and ambitious strategy based on independent data and a structured dialogue with all stakeholders, and we stand ready to work with the entire music value chain towards a fairer distribution of revenues, and we support the establishment of a European Music Observatory to collect and analyse data.

I noticed this language in the report calling on EU parliament:  “Calls for action to be taken at the European Union level to guarantee the visibility and accessibility of European musical works, considering the overwhelming amount of content constantly growing on music streaming platforms and the lack of Union rules to regulate them in a harmonised manner”.  and algorithmic dominance? 

It may come as no surprise that American and major label records still dominate on streaming platforms.

Is this designed to keep local language artists from being overwhelmed by English language tracks due to algorithmic bias or Spotify’s stream discrimination plans?

The short answer is: yes. During our stakeholder testimonials in the EU Parliament, Spotify claimed that streaming has increased diversity. And, yes, it may be true that some European countries have seen plenty of local acts in their local charts, though by no means all countries have experienced this, but on an international level there’s still a huge dominance of Anglo-American repertoire. Then we have the issue of the dominance of legacy artists and catalogue albums, such as ABBA, Fleetwood Mac and Elton John. 

In a post-Brexit reality, does the report have any effect on the UK?

The EU doesn’t have any legislative powers when it comes to the UK, due to Brexit, but as streaming is cross-border, as is the music industry, an improvement in either would have an impact on both. Some EU members have already implemented their own versions of equitable remuneration, such as Belgium and Spain – and France is establishing a streaming tax to support local music – but we would like to see solutions and changes that help ALL music creators, in particular songwriters, who currently are at the bottom when it comes to their share of the streaming royalty “pie”, and are finding it next to impossible to survive on their music, despite getting millions of streams. 

Given the attention that the Bad Dog story is getting, would the metadata accuracy proposals in the report help to stop outright fraud and impersonation? 

Yes, it would. Overall, we need more transparency, accountability and accuracy to deal with fraud. These are all words that get thrown around the industry willy-nilly but are rarely truly abided by. In this industry, companies rarely make an effort when it comes to accuracy unless there is an incentive for them to do so. What is the incentive for distributors and platforms to clean up their act and make an effort to prevent bad actors from profiting from fraudulent streams when they still get a share of those streams? I make the comparison to physical stores: If a supermarket sold counterfeit products, they’d be in trouble with the law. Why not these platforms and distributors? And this is before we even get into what’s happening on TikTok, which is the wild west when it comes to unlicensed usage. 

Does the metadata accuracy help to enforce “know your customer” type minimum indentifiable data requirements?

Accurate metadata is vital for so many reasons. Not only because more than 20% of all song revenue is unallocable and won’t go to the rightful recipient, but it will help in the fight against fraud. The way I put it to legislators is: You wouldn’t be able to buy a tuna sandwich in the supermarket without being able to read EXACTLY what is in it on the package, or the trader knowing who to pay for those ingredients. So how can it be legal for streaming services to accept, display and charge for recordings without knowing who created the underlying composition? How can they collect money without having any information on who to pay it to? And, as we’ve discovered with cases such as the Bad Dog story and Swedish criminal gangs using Spotify streams to launder money, that money could even be funding drug and weapons trafficking. 

Anything else you think is important about the report? 

The report calls for action when it comes competition issues and the dominance of a handful of labels and platforms, issues that we believe suppresses our bargaining power. It also stresses that authors, performers and other rights holders should be allowed to reserve and license the rights for the use of their work for AI training, and it acknowledges that this requires transparency. Overall it’s an important report that aims to correct the imbalances that have led to the unsustainable situation music creators find themselves in, and to build a sustainable, thriving and diverse cultural future. It couldn’t come soon enough. 

by Trichordist

In the fight for AI Justice, “The music industry is the tip of the spear” @MikeHuppe #IRespectMusic

Get smart about the NO AI Fraud Act with this MTP Mini Brief on the NO AI Fraud Act.

by Trichordist Editor

@RepMariaSalazar and @RepDean Introduce No AI Fraud Act to protect artists against AI Fakes #irespectmusic @human_artistry

Press Release

SUPPORT THE No AI FRAUD ACT

AI-Generated Fakes Threaten All Americans

New personalized generative artificial intelligence (AI) cloning models and services have enabled human impersonation and allow users to make unauthorized fakes using the images and voices of others. The abuse of this quickly advancing technology has affected everyone from musical artists to high school students whose personal rights have been violated.

AI-generated fakes and forgeries are everywhere. While AI holds incredible promise, Americans deserve common sense rules to ensure that a person’s voice and likeness cannot be exploited without their permission.

The Threat Is Here

Protection from AI fakes is needed now. We have already seen the kinds of harm these cloning models can inflict, and the problem won’t resolve itself.

From an AI-generated Drake/The Weeknd duet, to Johnny Cash singing “Barbie Girl,” to “new” songs by Bad Bunny that he never recorded to a false dental plan endorsement featuring Tom Hanks, unscrupulous businesses and individuals are hijacking professionals’ voices and images, undermining the legitimate works and aspirations of essential contributors to American culture and commerce.

But AI fakes aren’t limited to famous icons. Last year, nonconsensual, intimate AI fakes of high school girls shook a New Jersey town. Such lewd and abusive AI fakes can be generated and disseminated with ease. And without prompt action, confusion will continue to grow about what is real, undermining public trust and risking harm to reputations, integrity, and human wellbeing.   

Inconsistent State Laws Aren’t Enough

The existing patchwork of state laws needs bolstering with a federal solution that provides baseline protections, offering meaningful recourse nationwide.

The No AI FRAUD Act Provides Needed Protection

The No AI Fake Replicas and Unauthorized Duplications (No AI FRAUD) Act of 2024 builds on effective elements of state and federal law to:

  • Reaffirm that everyone’s likeness and voice is protected, giving individuals the right to control the use of their identifying characteristics.
  • Empower individuals to enforce this right against those who facilitate, create, and spread AI frauds without their permission.
  • Balance the rights against the 1st Amendment to safeguard speech and innovation.

The No AI FRAUD Act is an important and necessary step to protect our valuable and unique personal identities.

by Trichordist Editor

What would Lars say? Artificial Intelligence: Nobel or RICO?

All the true promise of AI does not require violating writers, artists, photographers, voice actors etc copyrights and rights of publicity. You know, stuff like reading MRIs and X-rays, developing pharmaceuticals, advanced compounds, new industrial processes, etc.

All the shitty aspects of AI DO require intentional mass copyright infringement (a RICO predicate BTW). You know stuff like bots, deep fakes, autogenerated “yoga mat” music, SEO manipulation, autogenerated sports coverage, commercial chat bots, fake student papers, graphic artist knockoffs, robot voice actors etc. But that’s where the no-value-add-parasitic-free-rider-easy-money is to be made. That’s why the parasitic free-riding VCs and private equity want to get a “fair use” copyright exemption.

Policy makers should understand that if they want to reduce the potential harms of AI they need to protect and reinforce intellectual property rights of individuals. It is a natural (and already existing) brake on harmful AI. What we don’t need is legislative intervention that makes it easier to infringe IP rights and then try to mitigate (the easily predictable and obvious) harms with additional regulation.

This is what happened with Napster and internet 1.0. The DMCA copyright infringement safe harbor for platforms unleashed all sorts of negative externalities that were never fairly mitigated by subsequent regulation.

Why do songwriters get 0.0009 a stream on streaming platforms? Because the platforms used the threat of the DMCA copyright safe harbor by “bad actors” (often connected to the “good actors” via shared board members and investors*) to create a market failure that destroyed the value of songs. To “fix” the problem federal legislation tasks the Copyright Royalty Board in LOC to set royalty rates and forced songwriters to license to the digital platforms (songwriters can not opt out). The royalty setting process was inevitably captured by the tech companies and that’s how you end up with 0.0009 per stream.

TBF the DMCA safe harbor requires the platforms to set up “technical measures” to prevent unlicensed use of copyrights, but this part of the DMCA safe harbor were never implemented and the federal government never bothered to enforce this part of the law. This is the Napster playbook all over again.

1. Unleash a technology that you know will be exploited by bad actors**.

2. Ask for federal intervention that essentially legalizes the infringing behavior.

3. The federal legislation effectively creates private monopoly or duopoly.

4. Trillions of dollars in wealth transferred from creators to a tiny cabal of no-value-add-parasitic-free-rider-easy-money VCs in silicon valley.

5. Lots of handwringing about the plight of creators.

6. Bullshit legislation that claims to help creators but actually mandates a below market rate for creators.

The funny thing is Lars Ulrich was right about Napster. [See our 2012 post Lars Was First and Lars Was Right.] At the time he was vilified by what in reality was a coordinated DC communication firm (working for Silicon Valley VCs) that masqueraded as grassroots operation.

But go back and watch the Charlie Rose debate between Lars Ulrich and Chuck D, everything Lars Ulrich said was gonna happen happened.

If Lars Ulrich hadn’t been cowed by a coordinated campaign by no-value-add-parasitic-free-rider-easy-money Silicon Valley VCs, he’d probably say the same thing about AI.

And he’d be right again.

by Trichordist Editor