Selected Phonorecords V Objections: The Society of Composers & Lyricists

As part of our series highlighting selected objections to the NMPA-backed Phonorecords V Subpart B settlement, we turn to the filing of the Society of Composers & Lyricists (SCL), representing approximately 4,000 composers, lyricists, songwriters, and music copyright owners. SCL asks the Copyright Royalty Judges to reject the proposed settlement, arguing that it locks in an artificially low mechanical royalty base rather than genuinely preserving creators’ purchasing power. 

SCL focuses particularly on what it calls the missing inflation of 2021 and 2022. Its objection argues that carrying forward the 12¢ benchmark fails to restore those unusually inflationary years and could perpetuate the resulting shortfall through every subsequent COLA adjustment. SCL objects that the NMPA settlement carries the Phonorecords IV formula into Phonorecords V in a way that effectively creates a new frozen mechanical. Rather than carrying forward the actual inflation-adjusted 2027 penny rate (for example), the settlement retains 12¢ as the benchmark, perpetuating the very rate-freeze problem Phonorecords IV’s COLA was intended to prevent.

SCL proposes instead a physical and permanent-download rate of approximately 15.6¢ beginning in 2028, followed by annual CPI adjustments which would take into account the 2021 and 2022 rates that the PR IV rates did not take into account in coming up with the 12¢ rate. 

The filing also returns to a familiar issue from Phonorecords IV: vertical integration among the parties negotiating the settlement. SCL invokes the Judges’ own earlier warning that relationships linking major publishers and record labels can create inherent conflicts requiring scrutiny before a private agreement is transformed into rates binding the entire industry. 

SCL also challenges the continued 24¢ ringtone rate, raises concerns about bundling, and disputes the proposition that agreement among major industry organizations necessarily represents a consensus of the individual creators whose statutory royalties will be determined. 

Perhaps the filing’s central point is the simplest: an annual inflation adjustment cannot repair an incorrectly low starting point. SCL asks the Judges to reject the settlement and encourage a new negotiation that includes the views of independent creator organizations before rates are fixed for 2028–2032.

Selected Phonorecords V Comments: The Missing Record: Independent Songwriters Ask What the Phonorecords V Settlement Doesn’t Tell Us

Continuing our series highlighting objections to the proposed Phonorecords V settlement for mechanical royalties on physical and permanent downloads, our friends Helienne Lindvall, David Lowery, and Blake Morgan focus on a deceptively simple question: What is the record that allows the Copyright Royalty Judges to conclude this settlement is reasonable? Our friends do not argue that settlement is improper—or even necessarily that this settlement is unreasonable. Instead, they argue that Congress assigned the Judges, not the negotiating parties, responsibility for determining whether a private agreement provides a reasonable basis for rates imposed industry-wide. There’s just no record other than the NMPA’s settlement itself.

The comment also questions carrying the 12¢ Phonorecords IV benchmark forward through another five-year rate period simply because it remains indexed for inflation. CPI preserves the real value of the existing benchmark; it does not establish that the benchmark remains reasonable for 2028–2032. With vertically integrated companies operating on both sides of the “settlement”, the commenters argue that the missing economic record matters even more.

Selected Phonorecords V Comments

It’s that time again. It’s no secret that we are not fans of the NMPA’s “quick and cheap” settlement on the statutory mechanicl license for physical and downloads which in its own way is essentially “take this eat that” freeze with no explanation that just extends the rates we fought for in the last rate setting. (David, Helienne and Blake filed a joint comment that we’ll get to posting in coming days.). Hard as it may be to believe, there’s no real record to support the NMPA settlement aside from “quick and cheap” and “we’re big.” Don’t think that that one appears in the rules anywhere.

But it turns out we are far from being the only ones who managed to achieve escape velocity from the influence of NMPA. Today we’re highlighting another submission in the Phonorecords V Subpart B proceeding before the Copyright Royalty Board.

In these comments, Kevin M. Casini and Kaila C. Coleman argue that the proposed settlement preserves inflation adjustments but does not reconsider whether the underlying 12¢ statutory mechanical royalty remains an appropriate benchmark for the 2028–2032 rate period. They contend that changes in the music marketplace—including the resurgence of vinyl, increased catalog values, and the continuing importance of physical formats for many independent writers—warrant closer examination.

One passage that stood out:

“The Board’s obligation extends beyond determining whether a proposed settlement has support among major industry participants. The Board must determine whether the resulting rates are fair, reasonable, and consistent with the objectives of the Copyright Act.”

As always, we’re featuring these comments to encourage readers to review the arguments being presented to the Copyright Royalty Judges.

Songwriters Are Being Asked to Accept Something We’ve Never Seen Before

The freeze is back.  

The first settlement in the Phonorecords V mechanical royalty proceeding is now on file (see below). A settlement is supposed to result from a “voluntary negotiation,” so the document raises a simple question: when exactly did the negotiation happen?

The parties describe “conversations” with other participants. Maybe there were conversations. But conversations are not the same thing as negotiation. A proposal presented as essentially a finished product, with little or no opportunity to influence its terms, is notification—not negotiation.

The Parties have had settlement conversations regarding the so-called Subpart B rates and terms with the other copyright owner Participants in the Proceeding (Songwriters Guild of America, World Collections, Inc., Eight Mile Music Companies, and George Johnson), who declined to join this settlement.

That distinction is crucial because this settlement would establish the statutory mechanical royalty rate for physical records and permanent downloads starting in 2028 through 2032.  Those rates affect every songwriter, including those ex-US songwriters whose songs are exploited in the US.  According to sources overseas, ex-US songwriter groups were not consulted, although it is customary for NMPA and NSAI to not engage with them even though they are a significant group (other than major mostly English language songwriters who are represented in the US by major publishers).

This means that it is likely that an alternative proposal or several alternative proposals will come to the Copyright Royalty Board in coming days from those who were not included in the NMPA’s settlement.  As the settlement itself anticipates, whatever deal the Judges end up adopting will be published as a tentative ruling allowing public comment, but that’s down the line.  Watch this space or the CRB website for Phonorecords V for more on deadlines, etc., if you want to comment.

To our knowledge, this is also the first time we’ve seen multiple competing settlements in a CRB phonorecords proceeding. Multiple settlements are common in webcasting and other CRB cases because different categories of music users—commercial broadcasters, NPR, college radio, religious broadcasters, and others—often negotiate different deals tailored to their own services. Mechanical royalty proceedings have traditionally been different. Everyone is negotiating one statutory rate that applies across the board divided into two broad categories by music user: labels (who pay for physical and downloads), and digital services like Spotify, Apple, Google, Amazon, and Meta (who pay for streaming mechanicals and control the global streaming market and some of which largely control AI models so lead the charge on AI theft for training).

The settlement itself also leaves some obvious questions unanswered.

Artificial intelligence is rapidly changing every aspect of music licensing, yet AI is not mentioned at all in the settlement. If downloads or streaming services increasingly contain AI-generated tracks that may not even qualify for copyright protection, should those recordings receive statutory licenses or royalties at all? The Copyright Office has repeatedly stated that works lacking sufficient human authorship cannot be registered for copyright to enjoy the protections of the Copyright Act, and the statutory license is part of the Copyright Act. If that principle eventually affects downloads or streaming (which we think it does right now), it is difficult to imagine that it will never influence the economics of physical or download mechanical royalties as well. That issue received no attention in the NMPA’s settlement.

Then there is another provision that deserves far more discussion.

The settlement continues the existing CPI adjustment mechanism that songwriter’s fought for in the last rate setting that increased the mechanical rate from the frozen 9.1¢ proposed by the NMPA and major labels to 12¢ plus a “Cost of Living Adjustment” (or “COLA”) thanks to the Judges rejection of the extended freeze. In other words, they did the opposite of what we recently suggested in Don’t Freeze Mechanicals Again.

Adopting a 12¢ base rate makes no sense—that’s the same rate as the Judges took as the base rate for the first year of the five year rate period starting in 2023 and then applied the COLA to that rate in subsequent years.  Of course, that 12¢ rate has been eroded by inflation every year and is now worth about 10¢ without the COLA, but songwriters negotiated and received that COLA which sustained the value of the rate. That’s how we got from 12¢ in 2023 to the current 13.1¢ rate in 2026 that will probably increase again for 2027 (our guess is somewhere in the 13.4¢ to 13.6¢ range).  Why wouldn’t you just take that highest rate achieved during the last year of the Phonorecords IV period (2027) and start applying the COLA to that in the first year of the Phonorecords V period (2028)?  Rather than go back to the arbitrary 12¢ reference rate? Huh?

On its first glance, adopting a COLA for the new rates sounds reasonable because it protects songwriters against inflation. But the formula contains no floor preventing the statutory rate from declining if cumulative CPI were ever to fall.

Deflation may be unlikely. That’s not the concern.  But the COLA could still cause rates to decline. All that has to happen is that inflation doesn’t rise at the same rate or greater from one year to the next and then the COLA-adjusted statutory rate will decline.

The point is that, for what may be the first time in the history of the statutory rate and certainly since the modern Copyright Act took effect in 1978, songwriters are being asked to accept a statutory mechanical royalty structure under which the minimum statutory rate could actually move backward, and very likely will decline.

A simple solution exists. The regulation could easily provide that each year’s rate is the greater of (1) the COLA-adjusted calculation or (2) the prior year’s rate. That would preserve the existing inflation formula while ensuring the statutory royalty never declines.

Why wasn’t that included?  Or better yet, why wasn’t an actual value based increase included since we are still digging out of two prior freezes of the statutory rate one from 1909-1978 when the rate froze at 2¢ and the other from 2006-2022 when the rate froze at 9.1¢.

That’s a fair question.

So is another one.

If we’re going to lock in the statutory mechanical royalty through 2032, shouldn’t there have been a meaningful discussion—not just among the settling parties, but across the songwriting community—about AI, future valuation, whether there should be a statutory minimum for streaming and whether the statutory minimum itself should ever be permitted to decrease?

Those conversations are coming. The only question is whether they should have happened before the settlement was filed instead of afterward.  We had hoped for a longer table with more voices.  Whether that happens remains to be seen.

9/18/25: Save the Date! @ArtistRights Institute and American University Kogod School to host Artist Rights Roundtable on AI and Copyright Sept. 18 in Washington, DC

🎙️ Artist Rights Roundtable on AI and Copyright:  Coffee with Humans and the Machines            

📍 Butler Board Room, Bender Arena, American University, 4400 Massachusetts Ave NW, Washington D.C. 20016 | 🗓️ September 18, 2025 | 🕗 8:00 a.m. – 12:00 noon

Hosted by the Artist Rights Institute & American University’s Kogod School of Business, Entertainment Business Program

🔹 Overview:

Join the Artist Rights Institute (ARI) and Kogod’s Entertainment Business Program for a timely morning roundtable on AI and copyright from the artist’s perspective. We’ll explore how emerging artificial intelligence technologies challenge authorship, licensing, and the creative economy — and what courts, lawmakers, and creators are doing in response.

☕ Coffee served starting at 8:00 a.m.
🧠 Program begins at 8:50 a.m.
🕛 Concludes by 12:00 noon — you’ll be free to have lunch with your clone.

🗂️ Program:

8:00–8:50 a.m. – Registration and Coffee

8:50–9:00 a.m. – Introductory Remarks by Dean David Marchick and ARI Director Chris Castle

9:00–10:00 a.m. – Topic 1: AI Provenance Is the Cornerstone of Legitimate AI Licensing:

Speakers:
Dr. Moiya McTier Human Artistry Campaign
Ryan Lehnning, Assistant General Counsel, International at SoundExchange
The Chatbot
Moderator Chris Castle, Artist Rights Institute

10:10–10:30 a.m. – Briefing: Current AI Litigation, Kevin Madigan, Senior Vice President, Policy and Government Affairs, Copyright Alliance

10:30–11:30 a.m. – Topic 2: Ask the AI: Can Integrity and Innovation Survive Without Artist Consent?

Speakers:
Erin McAnally, Executive Director, Songwriters of North America
Dr. Richard James Burgess, CEO A2IM
Dr. David C. Lowery, Terry College of Business, University of Georgia.

Moderator: Linda Bloss Baum, Director Business and Entertainment Program, Kogod School of Business

11:40–12:00 p.m. – Briefing: US and International AI Legislation

🎟️ Admission:

Free and open to the public. Registration required at Eventbrite. Seating is limited.

🔗 Stay Updated:

Watch Eventbrite, this space and visit ArtistRightsInstitute.org for updates and speaker announcements.

How Spotify (and others) Could Have Avoided Songwriter Lawsuits, Ask The Labels.

This is simply a story about intent. Daniel Ek is the co-founder of Spotify, he was also the CEO of u-torrent, the worlds most successful bit-torrent client. As far we know u-torrent has never secured music licenses or paid any royalties to any artists, ever.

Spotify could have completely avoided it’s legal issues around paying songwriters.  The company could have sought to obtain the most recent information about the publishing and songwriters for every track at the service.  The record labels providing the master recordings to Spotify are required to have this information. All Spotify (and others) had to do, was ask for it.

Here’s how it works.

For decades publishers and songwriters have been paid their share of record sales (known as “mechanicals”) by the record labels in the United States. This is a system whereby the labels collect the money from retailers and pay the publishers/songwriters their share. It has worked pretty well for decades and has not required a industry wide, central master database (public or private) to administer these licenses or make the appropriate payments.

This system has worked because each label is responsible for paying the publishers and songwriters attached to the master recordings the label is monetizing. The labels are responsible for making sure all of the publishers and writers are paid. If you are a writer or publisher and you haven’t been paid, you know where the money is – it is at the record label.

Streaming services pay the “mechanicals” at source which are determined by different formulas and rules based upon the use. For example non-interactive streaming and web radio (simulcasts and Pandora) are calculated and paid via the appropriate performing rights society like ASCAP or BMI. These publishing royalties are treated more like radio royalties.

The “mechanicals” for album sales from interactive streaming services are calculated in a different way. It is the responsibility of the streaming services to pay these royalties. CDBaby explains the system here and here. Don’t mind that these explanations are an attempt to sell musicians more CDBaby services, just focus on the information provided for a better understanding of this issue.

Every physical album and transactional download (itunes and the like) pays the “mechanical” publishing to the record label directly, who then pays the publishers and writers.  This publishing information exists as labels providing the master recordings to Spotify have this information. All Spotify (and others) have to do, is ask for it.

Record labels have collectively and effectively “crowd sourced” licensing and payments to publishers and songwriters for decades. Why can’t Spotify simply require this information from labels, when the labels deliver their masters? It’s just that simple. Period.

The simple, easy, and transparent solution to Spotify’s licensing crisis is to require record labels to provide the mechanical license information on every song delivered to Spotify. The labels already have this information.

The simple solution is for Spotify to withdraw any and all songs from the service until the label who has delivered the master recording also delivers the corresponding publisher and writer information for proper licensing and payments. Problem solved!

No need for additional databases or imagined licensing problems. Every master recording on Spotify is delivered by a record label. Every record label is required by law to pay the publishers and songwriters. This is known and readily available information by the people who are delivering the recordings to Spotify!

There is no missing information, and no unknown licenses. Why is this so F’ing hard?

This system would mean that the record labels would have to provide this information. It’s also possible that some of that information is not accurate. Labels would probably fight against any mechanism that would make them have to make any claims about the accuracy of their data, which is fine. If it’s the most update information it’s a great place to start.

Of course, we know that both sides (both labels and streamers) will reject any mechanism that introduces friction into the delivery of masters. However, with the simple intent of requiring publisher and songwriter info for every song master delivered there will no longer be a problem at the scale that currently exists.

To be completely fair to Spotify they did work to make deals with the largest organizations representing publishers and songwriters (NMPA and HFA). However those two organizations leave out a lot of participants. So back to square one. If publishing information is required upon the delivery of masters, the problem is largely solved. Invoking a variation on Occam’s Razor, the best solution is usually the most simple one.

You’d think that in the times before computers this would have been harder than it is now, but like all things Spotify you have to question the motivations of a company whose founder created the most successful bittorrent client of all time, u-torrent.

Oh, and of this writing Spotify is now claiming they have no responsibility to pay any “mechanicals” at all. Can’t make this up.

 

Digital Media Association (DiMA) Always Against Musicians

Who is DiMA? Glad you asked, the Digital Media Association. Why do we care? Well, because they are actively working against artists rights. How do we know? Three words… “Defending Against Songwriters”. Yes, DiMA is dedicated to “Defending Against Songwriters” because, you know songwriters are a force that businesses need to defend themselves against.

Wow, really? Seriously? Ok, check it out…

DimaDoubleDipSongwriters

But lets take a look below where current DiMA policy positions are directly in opposition to artists and songwriters rights.

DiMA supports Pandora buying a terrestrial radio station in an effort to lower the royalties Pandora will pay to songwriters.

DiMA is opposed to the Fair Play, Fair Pay Act that would pay performers a terrestrial radio broadcast royalty.

DiMA is opposed to The Songwriter Equity act that would allow songwriters the ability to negotiate fair market rates for their work.

DimaPOlicyAgainstArtists

Who would work with DiMA that wasn’t forced to via statutory rates and rate courts?