There are some decades in which nothing happens and some weeks in which decades happen. This was one of those weeks. You no doubt have seen that the Copyright Royalty Judges offered a breath of fresh air in the contentious and labyrinthine Phonorecords III and IV proceedings by refusing to accept the insider “settlement”…but if mechanical royalties have been understated, what does it mean for catalog valuations in the past and in the future? Looking at you, Bob Dylan!Unfrozen: What will the new physical mechanical rates do to or do for valuations? — Music Tech Solutions
This is the third of a three part post on Spotify’s failure to qualify as an “ESG” stock.
[This is an extension of Spotify’s ESG Fail: Environment and Spotify’s ESG Fail: Social. “ESG” is a Wall Street acronym often attributed to Larry Finkat Blackrock that designates a company as suitable for socially conscious investing based on its “Environmental, Social and Governance” business practices. See the Upright Net Impact data model on Spotify’s sustainability score. As of this writing, the last update of Spotify’s Net Impact score was before the Neil Young scandal.]
Spotify has one big governance problem that permeates its governance like a putrid miasma in the abattoir: “Dual-class stock” sometimes referred to as “supervoting” stock. If you’ve never heard the term, buckle up. I wrote an extensive post on this subject for the New York Daily News that you may find interesting.
Dual class stock allows the holders of those shares–invariably the founders of the public company when it was a private company–to control all votes and control all board seats. Frequently this is accomplished by giving the founders a special class of stock that provides 10 votes for every share or something along those lines. The intention is to give the founders dead hand control over their startup in a kind of corporate reproductive right so that no one can interfere with their vision as envoys of innovation sent by the Gods of the Transhuman Singularity. You know, because technology.
Google was one of the first Silicon Valley startups to adopt this capitalization structure and it is consistent with the Silicon Valley venture capital investor belief in infitilism and the Peter Pan syndrome so that the little children may guide us. The problem is that supervoting stock is forever, well after the founders are bald and porky despite their at-home beach volleyball courts and warmed bidets.
Spotify, Facebook and Google each have a problem with “dual class” stock capitalizations. Because regulators allow these companies to operate with this structure favoring insiders, the already concentrated streaming music industry is largely controlled by Daniel Ek, Sergey Brin, Larry Page and Mark Zuckerberg. (While Amazon and Apple lack the dual class stock structure, Jeff Bezos has an outsized influence over both streaming and physical carriers. Apple’s influence is far more muted given their refusal to implement payola-driven algorithmic enterprise playlist placement for selection and rotation of music and their concentration on music playback hardware.)
The voting power of Ek, Brin, Page and Zuckerberg in their respective companies makes shareholder votes candidates for the least suspenseful events in commercial history. However, based on market share, Spotify essentially controls the music streaming business. Let’s consider some of the implications for competition of this disfavored capitalization technique.
Commissioner Robert Jackson, formerly of the U.S. Securities and Exchange Commission, summed up the problem:
“[D]ual class” voting typically involves capitalization structures that contain two or more classes of shares—one of which has significantly more voting power than the other. That’s distinct from the more common single-class structure, which gives shareholders equal equity and voting power. In a dual-class structure, public shareholders receive shares with one vote per share, while insiders receive shares that empower them with multiple votes. And some firms [Snap, Inc. and Google Class B shares] have recently issued shares that give ordinary public investors no vote at all.
For most of the modern history of American equity markets, the New York Stock Exchange did not list companies with dual-class voting. That’s because the Exchange’s commitment to corporate democracy and accountability dates back to before the Great Depression. But in the midst of the takeover battles of the 1980s, corporate insiders “who saw their firms as being vulnerable to takeovers began lobbying [the exchanges] to liberalize their rules on shareholder voting rights.” Facing pressure from corporate management and fellow exchanges, the NYSE reversed course, and today permits firms to go public with structures that were once prohibited.
Spotify is the dominant streaming firm and the voting power of Spotify stockholders is concentrated in two men: Daniel Ek and Martin Lorentzon. Transitively, those two men literally control the music streaming sector through their voting shares, are extending their horizontal reach into the rapidly consolidating podcasting business and aspire soon to enter the audiobooks vertical. Where do they get the money is a question on every artists lips after hearing the Spotify poormouthing and seeing their royalty statements.
The effects of that control may be subtle; for example, Spotify engages in multi-billion dollar stock buybacks and debt offerings, but has yet makes ever more spectacular losses while refusing to exercise pricing power.
So yes, Spotify is starting to look like the kind of Potemkin Village that investment bankers love because they see oodles of the one thing that matters: Fees.
On the political side, let’s see what the company’s campaign contributions tell us:
Spotify has also made a habit out of hiring away government regulators like Regan Smith, the former General Counsel and Associate Register of the US Copyright Office who joined Spotify as head of US public policy (a euphemism for bag person) after drafting all of the regulations for the Mechanical Licensing Collective;
Whether this is enough to trip Spotify up on the abuse of political contributions I don’t know, but the revolving door part certainly does call into question Spotify’s ethics.
It does seem that these are the kinds of facts that should be taken into account when determining Spotify’s ESG score. At this point, it looks like Spotify is an ESG fail–which may require divesting by some of the over 600 mutual funds that hold shares.
By Chris Castle
[This post first appeared on MusicTechPolicy.]
If you’ve been pitched to lend your name to an NFT platform or promotion, or if you are an NFT promoter who wants to attract artists to your program, there are some issues that should get addressed. Obviously, discuss all this with your lawyers since this isn’t legal advice, but the following are some issues that you may want to consider before you commit to anything.
As NFTs are priced in cryptocurrencies, a word about that. You should understand that cryptocurrencies use a huge amount of energy due to “mining” (See the Cambridge University bitcoin energy consumption index) and the current spike in the cost of energy is going to have an effect. Also realize that when someone tells you that an crypto enterprise is “green” you have to ask them what they mean exactly–for example, Google tells you that their data centers are “green” because they buy carbon offsets or use hydroelectric power from Oregon or wind farms in Nebraska (just ask Senators Ron Wyden and Ben Sasse), but that doesn’t mean that it doesn’t still take enough electricity to power Cincinnati in order to operate YouTube. There are no magic elves on golden flywheels producing electricity as if by magic. They still plug into the wall like everyone else.
1. What artist rights are being granted and to whom?
2. Does grant of rights match the project summary and are license agreement, smart contract, marketplace/auction TOS and cryptocurrency rules all consistent? Has a subject matter expert been engaged to produce a report stating and certifying that the smart contract code implements the actual deal or needs to be revised?
3. What royalty is paid and to whom and when? Does artist, previous owner or charity participate in resale revenue after initial sale? Are any state or federal relevant tax rules implicated? What have you done to keep NFT revenue as far away from MLC as possible? (Remember that Etherium vehicle Consensys is somehow involved with the MLC.)
4. Are there exploitation or marketing restrictions on the NFT that would prevent the NFT and artist name being used in ways that are offensive to the artist, at least during the artist’s lifetime? Could heirs enforce these rights?
5. Are there any third party payments involved like producer payments, production company overrides, or any third party rights involved, re-recording restrictions. Will any letter of direction be required, e.g., for producers?
6. Are you being asked to clear publishing? If someone is telling you that they have cleared publishing, has the publisher confirmed the license and are individual songwriters actually receiving a share of revenue? The tendency is that the major publishers “settle” these kinds of cases for a lump sum and prospective royalty, which may or may not be received by individual songwriters after multiple commissions being siphoned off the top.
7. When does NFT terminate? (On resale, transfer by owner, term of years)
8. What is the governing law and venue? (And how to enforce)
9. Who maintains the blockchain and who is responsible for policing it? What happens if they fail to do so? (See my post with Alan Graham on this subject.)
10. Is artist asked to make representations, warranties and indemnity? Can the artist make such reps and warranties?
11. Is indemnity capped?
12. Are there any active disputes among anyone in the chain on the NFT promoters’ side? (“Disputes” is any disagreements, including, but not limited to, litigation or threatened litigation.) Who will cover artist’s costs of defense?
13. Is there insurance on chain of title, failure to enforce the smart contract, nonpayment, business risk?
14. Can license agreement or smart contract be revised unilaterally?
15. Is the NFT or NFT collection comprised of “generative art” or artwork created by machines, algorithms, artificial intelligence, and related technologies (i.e., potentially not capable of copyright protection)? What are implications for name and likeness rights.
16. What assurances have been given to identify purchasers of NFTs to enforce terms or prosecute breaches for first or subsequent sales?
17. Are any union rules implicated (e.g., SAG-AFTRA Basic Agreement Par. 22A)? See my post on NFT union payments.
18. Is NFT or any NFT cash flows implicated in any sanctions placed on persons related to the Russian Federation? Given the strong reaction to Russia’s invasion of Ukraine, consider any implications if China were to invade Taiwan and similar actions were taken against China or China-based companies.
19. Has NFT seller or marketplace obtained legal opinion regarding whether the NFT constitutes a “security” that would require sale by a registered securities broker-dealer or other regulatory oversight?
20. Are any state securities laws, tax laws or regulations, or “doing business” laws implicated or reporting obligations triggered?
Each NFT raises its own questions, so this checklist is just a starting point.
By Alan Graham and Chris Castle
If you’ve followed any of the drama surrounding the NFT music infringement marketplace Hitpiece, you know it has deservedly received a lot of grief—and at least one pretty potent cease and desist letter–for its blatant attempt at profiting from allegedly scraped IP it didn’t own. But the interesting thing is that it actually gives us an opportunity to discuss some of the greater potential challenges surrounding NFTs, and how it may in fact be impossible to live up to their promise. Let’s start by picking apart Hitpiece, and see where we get with this teachable moment.
Blockchains or databases that represent ownership, must have one trait in common to provide value, and that is a consensus mechanic whereby each party that is allowed to write data is known to the system, therefore the data that is written is trusted, and then all copies (or nodes) can commit these changes. Ta-da. There is an inherent logic to the consenus mechanic. It’s what Shawn Fanning’s SNOCAP accomplished with its registry in sharp contrast to the Wild West of p2p and essentially lies at the heart of Hernando de Soto’s extensive work in macroeconomics. Good things can happen when people trust the system.
It’s also the starting point of what went wrong at Hitpiece. Instead of using a blockchain solution like Ethereum, we’re told Hitpiece operates some kind of a “private blockchain.”
So what does that actually mean? It should suggest a distributed ledger, hosted by multiple separate parties to keep everyone honest, with a method of cryptographic consensus (who can write data, how are they known to the system, how is it trusted). Remember, the definition of “good faith” is “honesty in fact” and it is an essential condition of contracts, all contracts be they smart or just human.
The novel bit Hitpiece was doing, from what we can read, is that they were using regular credit card payments, not crypto, to allow collectors to mint/purchase the NFTs, which is actually very clever. Seriously, there’s no reason you have to use a cryptocurrency to pay for something, if you are in fact also hosting the blockchain/database. A private blockchain doesn’t need a cryptocurrency, it just needs trusted parties, and there’s the rub. Cryptocurrency is a sufficient condition of a successful NFT platform, but a trusted consensus mechanic is a necessary condition.
Now while we could go on and on picking apart many of the flaws in the Hitpiece model, it opens up a broader discussion that we’d like to have as to how NFTs plan to offer their grand promised future of benefits and entitlements (buy my NFT and get xyz). Whenever you challenge someone in the crypto space about how they plan to handle this, they simply say “smart contracts”, when what they really mean is, “I have no idea how/if this is going to work”.
Terms of Service
First, in order to have a product or service that you sell or provide online, there has to be a series of terms as to what is being purchased, who is paid each successive purchase price, what is being provided to the purchaser, and for how long. That means, in the case of a platform that allows creators to mint/sell/auction NFTs, the party that is minting/selling the NFT has to provide a Terms of Service as to what can be expected, not the platform. The platform is simply a service provider. It’s buyer beware, because the seller doesn’t necessarily have any technical solutions for supporting future benefits. It’s also seller beware because if the initial seller specifies terms for the sale (and subsequent sales), there ought to be a believable and efficient way to enforce those future rights and post-sale conditions.
So if you are a creator promising this, you need to spell out what those might be, the term of that relationship, and be damn sure you can deliver on it. Likewise, if you are a creator being promised something will happen after the initial sale, you have to believe that your rights can be enforced in an efficient way (like the future sale can’t close without X being the case or $Y being paid to you). This is a concern for both featured and nonfeatured recording artists (as well as union signatory record companies with collective bargaining obligations), plus co-writers of songs and their publishers.
To pluck two examples from the headlines on The Trichordist, Neil Young might want to place conditions on future NFT sales that have nothing to do with money; elderly songwriters might want to be assured of a stream of future income from NFT sales that they can ill-afford to sue over. This is not hard—it happens with real estate every day of the week in practically every country of the world (and was at the heart of Hernando de Soto’s “Peruvian miracle” that started with land reform). If you don’t meet the sale conditions, you don’t close on the property and the title company won’t take money from the buyer or pay it to the seller.
Perhaps this is especially true of collectibles where resales may be part of the buying motivation. (See for example, the pending lawsuit over the Quantum NFT against Kevin McCoy and Sotheby’s regarding the Namecoin blockchain that is for “slander of title” among other things—a real estate concept.) The expectation most buyers will have is that the thing in question will live in perpetuity. For example, If you purchase a physical painting, you have the expectation of enjoying that painting as long as you possess it.
But what are your expectations regarding the NFT? This entire subject seems to be heavy on promises of future benefits and entitlements, but lacks any hard explanations of how that’s possible and for how long. That puts creators and collectors at great risk, because there’s no guarantee of being able to deliver on that promise—until there is. Technology practically assures us that whatever you buy today, will not necessarily work 10 years from now. How’s that WordPerfect program working out for you?
The second issue we never see talked about derives from the first. It seems common for promoters to promise benefits/entitlements in the future from owning NFTs, but how? Where’s the mechanic that makes this possible? Simply saying “smart contracts” is just procrastinating and hoping something will exist later. In order to provide a series of benefits, like exclusives, you have to also provide a structure to interpret these, and we’re dealing with potentially thousands of intermediaries, and millions/billions of NFTs. We don’t have any idea how anyone expects this to work with the existing NFT model.
Say you want to provide exclusive first access to concert tickets to anyone who has a particular NFT. The ticketing site or agency has to be able to recognize this NFT and be able to trust it. One way to do this is they can run native code that runs independently on the site that can say, “I know this collectible” by being able to recognize who cryptographically signed something with a known set of keys. Or they could run an embed from a third party that did the same thing. The most secure way to do any of this is likely having more than one party sign the NFT to prove it is real, but not really something trustless blockchain folks like.
The ability to trust the NFT sale and automatically enforce the terms of each sale is vital for creator-driven NFTs. If a creator places marketing restrictions on how the NFT can be used downstream, there ought to be a way to enforce those restrictions. Recording artists and songwriters commonly have such restrictions in their artist or songwriter agreements with record companies or music publishers. They have approval rights over how their works are used and they have blanket prohibitions. Approval rights means they are asked before a license is granted by their label or publisher and they can sue if that fails to happen. A blanket prohibition could, for example, prohibit the use of the work in a commercial promoting a product, say firearms, that the artist or songwriter doesn’t agree with, or a country whose laws the creator rejects, say Beastie Boys with China over Tibet, or a platform that distributes a podcaster the creator doesn’t want to be associated with.
The punchline there is why would a creator take, or allow their label or publisher to grant, lesser rights in an NFT than the creator has for the same work outside the NFT?
You Can Check Out Any Time You Like
Then we get into talking about serious security implications, as NFTs might have both a monetary value, and a potential “smart contract” that remunerates/rewards the purchaser, and has an ancillary connection to the collector’s wallet. Any compromise in this chain and you could not only put one creator or collector at risk, they could all be at risk including the seller (All apes, everywhere, stolen). A single errant smart contract or malicious developer, could put creators or downstream sellers at serious legal risk because they exposed the collector’s wallet to compromise. That means you’ll want to see that every NFT marketplace has serious security experience and precautions, but also as a collector, you’ll want to know that everything you purchase has an audit trail whereby you can verify the NFT is authentic and each link in the chain can be trusted.
That’s a whole lot of magical hand waving. And title insurance or the equivalent.
In any case, not only does someone need to build, service, and maintain this, but also has to maintain it forever, and it can never fail.
And forever is a long time.
[This post first appeared on MusicTechPolicy.]
By Chris Castle
I recently co-wrote with the noted international economist Professor Claudio Feijoo a paper for the World Intellectual Property Organization on a new “streaming remuneration” royalty to be paid to all musicians and vocalists by streaming services. Part of our justification for the new royalty is that these creators, especially “non-featured” musicians and vocalists are not paid at all for streaming which is rapidly replacing radio (for which they are paid through SoundExchange). The value that the streaming remuneration would try to capture is not just revenue based (which is how all streaming royalties are derived currently) but also derived from the market valuation conferred on companies like Spotify. Spotify remember is more like YouTube would be than say Google because it is essentially a “pure play” music stock, kind of like Pandora was.
Claudio has done considerable work on trying to capture and express this value, so for today let’s do some rough justice using one of the approaches from the paper. There are more bells and whistles to the calculation than I’m going to give you here, but you’ll get the idea that a stream is assigned a much, much lower value when calculated on the revenue side of loss-making organizations than when calculated on the extraordinary wealth-making side of the public markets valuation of Spotify. And if you want to make a causal connection between low royalties and high market value, who am I to stop you?
The formula is simple: Divide Spotify’s market capitalization by the number of royalty bearing streams in a month and you have a rough idea of how much value each stream confers on the monopoly streamer.
Spotify’s recent market capitalization is $41,056,000,000 give or take an Arsenal in the rounding. A recent number of monthly plays as reported by the MLC is 24,815,407,149.
Divide market capitalization by number of streams. The result is $1.65 per stream in market valuation. According to the last Trichordist streaming price bible, Spotify’s per-stream rate was $0.00348 and for songwriters, even less.
$1.65 versus $0.00348. Where oh where might that delta go? It goes somewhere and it’s not to the people who made them rich. Not a perfect metric, but you get the idea.
You might say how do they sleep at night? The answer? Sleeping very well on much nicer sheets than you, thank you, and for one reason–they do not give a flying hoot about your problems because Daniel Ek doesn’t think you’re working hard enough to make him and all his employees richer.
Nik Patel, David Lowery, and Chris Castle feature in this podcast where they discuss the current issues of artists’ rights in the music industry. Find the Artist Rights Watch on your favorite podcast platform here https://linktr.ee/artistrightswatchpod Please subscribe, rate and share!
On the first episode of the Artist Rights Watch, Nik Patel, David Lowery, and Chris Castle sit down with Ivors Academy Chair, Crispin Hunt to talk about the frozen mechanical royalties crisis currently playing out in the United States and how it threatens UK songwriters and indeed songwriters around the world.
Crispin gives us his invaluable analysis of how the frozen mechanicals crisis affects songwriters around the world and the highly effective #brokenrecord and #fixstreaming campaigns that Ivors Academy supports in the UK that has lead to a parliamentary inquiry and legislation introduced in the UK Parliament.
The “frozen mechanicals” crisis is rooted in a private deal between big publishers and their big label affiliates to essentially continue the freeze on the already-frozen U.S. mechanical royalty rate paid by the record companies for CDs, vinyl and permanent downloads. The private deal freezes the rate for another five years but does not even account for inflation. Increasing the royalty rate for inflation, does not actually increase songwriter buying power.
The major publishers and labels have asked the Copyright Royalty Board in the US to make their private deal the law and apply that frozen rate to everyone.
In the past, the music industry has experienced a $0.02 mechanical royalty rate that lasted for 70 years, and with the current mechanical royalty rate of $0.091 being set in 2006, advocates hope it’s not a repeat of the past.
In this Artist Rights Watch episode, we cover its numerous implications and consequences such as controlled compositions clauses, the Copyright Royalty Board, CPI and fixed increases, how the UK compares, and potential resolutions.
Below are some links for further reading on frozen mechanicals and Crispin Hunt:
Controlled Compositions Clauses and Frozen Mechanicals. Chris Castle
What Would @TaylorSwift13 and Eddie @cue Do? One Solution to the Frozen Mechanical Problem. Chris Castle
The Trichordist posts on frozen mechanicals
The Ivors Academy Joins the No Frozen Mechanicals Campaign
Year-End 2020 RIAA Revenue Statistics
By Chris Castle
We all breathed a bit easier when we heard that the $15 billion Save Our Stages legislation authored by Austin Rep. Roger Williams and Texas Senator John Cornyn had passed the Congress and was signed into law last December as part of the $2.3-trillion Consolidated Appropriations Act of 2021. SOS is administered by the Small Business Administration and allows live performance venues, movie theaters, and talent agencies to apply for relief grants if they’ve lost at least 25% of their revenue due to the pandemic up to a maximum of $10 million. Venues employing fewer than 50 full-time (also known as every music venue I know of) can apply for a share of a $2 billion of the fund to cover payroll, rent, utilities, and insurance.
The problem is that the Small Business Administration has failed to implement an application process so that venues can even apply–and months are going by. As states reopen, thriving venues are going to be a big part of the economic recover, particularly in a state like Texas. What’s even more bizarre than the SBA not having an application process in place (or bridge loans or something) is that the City of Austin has managed to distribute millions to the Austin music community while waiting for the legislation, which Rep. Williams and Senator Cornyn got through Congress in record time–which may be because Austin wants to keep the title of “Live Music Capitol of the World” when the live music business reopens.
It is very difficult to understand why the SBA is taking so long to distribute appropriated funds for federal legislation that was bipartisan and not controversial. It’s not just me–Governor Abbot’s Texas Music Office s leading the charge to light a fire under the SBA.
If you want to let you views be known, you can write to the SBA at firstname.lastname@example.org contact your local members of Congress or your state and city economic development offices.
Here’s a letter from Texas Music Office Director Brendon Anthony to the head of the SBA asking for her to expedite the applications:
February 25, 2021
Tami Perriello, Acting Administrator
U.S. Small Business Administration
409 3rd St SW
Washington, DC 20416
Dear Acting Secretary Perriello:
Thank you for all that you do in service of the SBA, on behalf of the American people. And thank you for your organization’s steadfast work assisting small businesses across the state of Texas, and beyond, during the pandemic. At the TMO, we hear firsthand from our constituents that the daily work of the regional SBA offices has provided an invaluable lifeline of resources and information, supporting the livelihoods of countless hardworking Texans.
As Director of the Texas Music Office (TMO), a division of the Office of the Governor’s Economic Development & Tourism Office, my team and I represent the more than 210,000 constituents and their permanent jobs within the Texas music industry. We implore you to accelerate opening the application window for the U.S. Small Business Administration’s (SBA’s) Shuttered Venue Operators Grant in order to help provide a bridge to saving one of the first industries impacted by Covid -19 mitigation,and ultimately one of the last industries that will be able to fully re-open.
As of February 2020, combined, the music industry and music education in Texas directly accounted for $4.4 billion in annual earnings, and just over $ I 0.8 billion in annual economic activity. The ripple effects associated with the direct injection related to music business and music education in Texas bring the total impact to $8.8 billion in earnings and $27.3 billion in annual economic activity.
Although most music fans around the world are familiar with our state’s largest music brands like Austin City Limits Festival and the SXSW Music Conference, it’s the small venues and historic dancehalls where Texas musicians cut their teeth which are currently impacted by closure. These hallowed venues are the testing grounds for our chart-topping artists like Beyonce, Selena, Willie Nelson, George Strait, Travis Scott, and so many more.
As each week passes, we lose more and more small music venues to permanent closure. The Shuttered Venue Operators Grant will be a crucial stopgap to helping our state’s music industry survive, providing the state’s music venues a bridge to help them weather this catastrophic event
On behalf of the Texas Music Office and its constituents from all across the state, please take the necessary steps to open applications for the Shuttered Venue Operators Grant so that the Texas music industry and the thousands of individuals employed by the state’s small venues – may live to see another day, as the permanent closure of these venues would be immeasurable to our state’s economy and culture.
Director, Texas Music
Office Office of the Governor
The venues really need our help to pry loose the money from the SBA that has already been appropriated by Congress. I don’t ask for this often, but the Trichordist audience is very effective at contacting their governments. Remember, that’s email@example.com
Guest post by Chris Castle
Our sister site Artist Rights Watch fielded a Mechanical Licensing Collective Awareness Questionnaire during January targeting songwriters attending our MLC webinar. (MLC Awareness Questionnaire 1/31/21 n=120.) The purpose of the questionnaire was to give the panelists some idea of the awareness level of attendees about the issues we intended to discussed based on early responses to the survey. You can read the analysis of the responses here, but I’m going to discuss them briefly.
Of the 120 people who responded, responses suggest that approximately 70% of respondents personally handled the business and administration of their song catalogs, 50% were self-administered, and 50% administered song catalogs of 100 songs or fewer. In other words, the majority of respondents were exactly the kind of self-administered songwriters or administrators we sought to connect with and who are eligible to stand for the MLC board seats devoted to self-administered songwriters if the right insiders nominate them . We are still analyzing the geographic data, but about 16% were from California zip codes with the rest distributed across Texas, Georgia and other fly-over states predictably not represented on the MLC’s board of directors.
The basic questions about the MLC awareness we were trying to better understand were whether respondents even knew what we were asking about, and if so, how did they know. This will help understand the success of the information efforts to date by the MLC, the DLC, and the Copyright Office. We also wanted to know if respondents felt that they knew enough about the MLC to advocate for themselves with the MLC as an effectiveness metric for other educational efforts to date.
An encouraging 63% of respondents had heard of the MLC, but 22% had not. Less encouraging was 6.67% who had both heard of the MLC and successfully registered and 4.17% who had heard of it but had not been able to register.
When asked how they had heard of the MLC, respondents were asked to respond to a list of potential sources, including “other”. The largest source of information was “news media” at 27.35% and the next largest was “other”, which included a variety of sources including The Trichordist, Artist Rights Watch and MTP.
However, given the other answers, the education efforts of the MLC (including HFA), the DLC and the Copyright Office did not seem to be making much penetration into these respondents, although the Copyright Office led the pack, sometimes by a lot. This is curious because it’s not really the Copyright Office’s job and they are not being paid millions to do it.
As a measurement of the cumulative effectiveness of the educational outreach by the MLC, DLC and Copyright Office, we asked whether respondents felt they could advocate for themselves with the MLC. 60.83% answered “no” or that they “could use some help.” This was surprising, and I would have preferred to see that number down in the single digits.
Of those who tried to register with the MLC, 15.38% of respondents successfully registered, 12.5% were told to use HFA, but 32% were “not sure” what they were told to do by the MLC. I think that it’s safe to explore whether the data indicate that the educational outreach has resulted in an abysmally low registration rate.
For whatever reason, this language has appeared on the MLC’s website in recent days:
Prior to January 1, 2021, DSPs operating under a compulsory license were required by law to account to rightsholders on a monthly basis, within 20 days after the end of each month. Starting on January 1, 2021, DSPs operating under the new blanket license will have 45 days after the end of each month to send their usage reports and royalty payments to The MLC. The MLC will then take 30 days to perform its matching functions and calculate the royalties due to each of its Members. That means that The MLC will send out royalty payments and statements to Members roughly 75 days after the end of each monthly period. Because the total duration of the new distribution process will be longer than the old process, there will be a two month gap at the beginning of 2021 between the time rightsholders receive their last monthly statements and payments from DSPs under the old process and the time when they receive their first monthly statements and payments from The MLC under the new process.
12% of respondents said that they were paid monthly and 60% of respondents were paid quarterly or “other” than monthly or quarterly.
We will be studying the responses over the coming weeks, but I had a few thought on the responses and a couple recommendations.
- I’m going to ask if ARW can field the same questionnaire periodically to see how responses vary over time. UPDATE: ARW will be fielding a new survey with a few additional questions, you can participate at this link.
- It appears that of all the media the experts are using to get their messaging out, the one making the greatest penetration for mere awareness is news media. However, respondent’s lack of confidence in their ability to register with the MLC as well as the low level of successful registrations hasn’t yet supported a conclusion that the experts’ well-funded efforts are producing greater MLC registrations or a greater understanding of how to register, or, and most importantly, actual registrations.
- There seems to be considerable confusion for whatever reason about someone else doing the registration for songwriters, be it administrator or publisher. Outside of the survey, we have anecdotal evidence that songwriters are finding that their songs are not registered with the MLC after having been assured they would be by their publishers. Because of the announced songwriter payment gap that the MLC anticipates in the first few months of its operations, songwriters may only find out they are not registered when their payments stop.
Recommendation: One technique I observed with a SoundExchange information session was that artists were able to bring their laptops to a seminar where they were literally walked through the SoundExchange registration process step by step after the informational Q&A session concluded. Even during COVID this could be accomplished using screen share.
By using this technique, the MLC could make sure that the end result of their webinars, etc., was that songwriters or publishers registered works and learned how to do so for the remainder of their catalog. Plus they knew who to call if they had any problems or further questions. This takes time, but the whole process takes time and you’re only fooling yourself if you think otherwise, to be blunt. I would say that it matters less how these people managed to waste two years in which they could have been doing this than it does to fix the problem right here, right now. Do not let them tell you that the need only arose on the License Availability Date of 1/1/21 because that is just a CYA lie.
Recommendation: The experts should make a focus of their messaging a very clear statement that if you don’t register you will not get paid. That is the harsh reality. By hiding that ball, they do everyone a disservice. Maybe an unregistered songwriter will eventually be able to claw their royalty back from the black box at some point in the future, but in the time of COVID, that claw back comes with a mortality rate.
Recommendation: No accrued but unpaid royalties for the first two or three years of the MLC’s operations should be able to be placed in the black box. Not that they wait to pay out black box for 3 years, but they cannot use any of this money for black box–ever. Like state unclaimed property offices, they hold the money forever. The reason is that there is a greater than 50% chance that the reason funds are unmatched is because of the MLC’s startup missteps, not anything the songwriter did.
By Chris Castle
I’m grateful to Texas Accountants and Lawyers for the Arts, Austin Texas Musicians and the Austin Music Foundation for hosting an information webinar next week on the impact of the new blanket mechanical license under the Music Modernization Act on independent songwriters. We will also cover the nuts and bolts of dealing with The MLC, Inc. and a unit on the Digital Licensee Coordinator.
I couldn’t be happier to have two great panelists in music publisher and song data solver Abby North and my fellow Austin music lawyer Gwen Seale.
While this panel has an Austin origin, the topics are not Austin-centric and will apply to all songwriters in the world just like the MLC does.
Please RSVP to Eventbrite if you think you might attend at this link and also take a moment to complete the anonymous 10 question MLC Awareness Questionnaire on Survey Monkey at this link. The Zoom code to join will be posted through Eventbrite.
I’ll be posting some other materials, but for those who want the more nitty gritty background, you can read this package of documents at this link.
By Chris Castle
[This post first appeared on MusicTechPolicy]
We’ve all heard rumors about how much is in the “inception to date” black box at the digital music services. The main reason that nobody knows is another example of the dismal drafting of the Music Modernization Act.
Wouldn’t you think that if the class actions against Spotify gave the insiders the leverage to negotiate the MMA giveaway that they could at least have gotten an immediate accounting from the services for how much of the songwriters’ money they’ve been holding all these years? But no, it’s sleepy time in Washington yet again. From the Land of Frozen Mechanicals they bring you more Brinksmanship 101. The retroactive black box payment is due to be made by the services to the MLC and its data vendor, HFA–remembering that HFA was also the data vendor for at least some of the services that created the black box in the first place.
However, there is some activity at the Copyright Office now about how to get this money paid. It’s at the Copyright Office because while drafting the aircraft carrier revision to the Copyright Act (aka Title I of the Music Modernization Act), the hard parts were never drafted and were left to the Copyright Office to handle through regulations. Musicians–you’ve seen this before. This is the Washington version of “we’ll fix it in the mix.” So you do have feel sympathy for the Copyright Office in the situation when all the smart people leave them twisting in the breeze.
Not that I necessarily believe this number, but for the first time the services have given a bigger than a breadbox idea of how much is in the black box. The DLC’s lawyers filed an “ex parte” letter in which they made that revelation (along with the known universe: Artist Rights Alliance Ex Parte Letter (Nov. 17, 2020), Digital Licensee Coordinator Ex Parte Letter (Nov. 17, 2020), Mechanical Licensing Collective Ex Parte Letter (Nov. 17, 2020), Music Artists Coalition Ex Parte Letter (Nov. 17, 2020), Nashville Songwriters Association International Ex Parte Letter (Nov. 17, 2020), National Music Publishers’ Association Ex Parte Letter (Nov. 17, 2020), Recording Academy & Songwriters of North America Ex Parte Letter (Nov. 17, 2020), Songwriters Guild of America et al. Ex Parte Letter (Nov. 18, 2020).)
The DLC itself is at the mercy of its members in terms of revealing this number but they claim the following in the Digital Licensee Coordinator Ex Parte Letter (Nov. 17, 2020):
DLC also provided a rough estimate of accrued royalties that are available to be transferred to the MLC, based on a limited survey of a subset of DLC members at a particular point in time, and with the crucial caveat that the precise amounts are in flux as digital music providers continue to engage in robust matching efforts. Specifically, DLC estimated that several hundred million dollars were available to be transferred to the MLC as accrued royalties, even after accounting for the derecognition of accruals based on preexisting agreements containing releases to claims for accrued royalties.
DLC also explained that the accruals that were derecognized because copyright owners were paid and provided releases were a fraction of that amount—on the order of tens of millions of dollars.
So now we know at least that much. We know there are “several hundred million” dollars at issue in the black box and we generally know where the money is. We may know that DLC members hold the money. We also know that this money has not been identified, but we at least know enough to get the nose of the camel in the tent.