Photo credit: Robby Klein

Working together to achieve a common goal is the heart of unionism. And an important part of working together, of collaboration, is the communication that makes it all possible. In a union as large as the AFM, it’s important that musicians understand what everyone else is doing.

In these next few issues of Senza Sordino I’d like to open up the dialog about issues that should concern us, so we can offer our support to our musical colleagues who don’t have a built-in support system like we do. It’s my hope that we can showcase and discuss some of the issues and activities of the AFM and other areas of our music industry—to understand the impact on the symphonic industry and to support their efforts.

One of the issues you may have heard mentioned is the Fair Play, Fair Pay Act of 2015 (aka Fair Play, Fair Pay), a bill that would expand payment requirements for music played on the radio. For many years the AFM and other artists’ representative bodies have lobbied Congress for payment of radio broadcasts. Since the earliest days of broadcasting—in the analog age—songwriters, publishers, and record labels have received royalty payment from broadcasters for playing their music on the radio. But the artists and backup musicians, whose talents were on full display, never received a dime.

In October, 1998, Congress passed the Digital Millennium Copyright Act (DMCA). This law allowed implementation of two 1996 World Intellectual Property Organization (WIPO) treaties that were intended to shore up copyright protections. The law heightened penalties for copyright infringement on the Internet, and it provided an exemption from direct and indirect liability for Internet service providers and other intermediaries.

You could be thinking, so what? How does this impact me? Another provision of the DMCA clarified that the digital performance right created in 1995 did apply to the payment of radio broadcast/streaming royalties to both featured and non-featured artists, in addition to copyright holders. Some of our orchestras with long histories of recording have begun to see the benefit of this provision in the past few years. Following passage of this law, an organization called SoundExchange was established as an independent nonprofit collection agency that distributes digital performance royalties to featured artists and copyright holders. SoundExchange also collects royalties for non-featured artists, but another entity distributes those funds—the AFM & SAG-AFTRA Intellectual Property Rights Distribution Fund. The AFM & SAG-AFTRA Fund is administered by Dennis Dreith and is overseen by a board of trustees from the AFM and SAG-AFTRA.

SoundExchange sets the rates that Internet broadcasters and streamers must pay, and that money is then split: 50% is paid to the copyright holder; 45% is paid to the featured artist; and 5% is paid to the non-featured artists, which is split further with 2.5% to AFM musicians (the rhythm sections and orchestras accompanying the artist) and 2.5% to SAG-AFTRA members  (in most cases this would be the backup singers). The AFM & SAG-AFTRA Fund collects and distributes the royalties for these non-featured artists, but it has also been designated to distribute featured-artist royalties to symphony orchestras, because the amount of research required is enormous. For example, non-featured artists on a single Taylor Swift track are fairly easy to identify but when notice is sent to the AFM & SAG-AFTRA Fund for an orchestral recording, the Fund might only receive the following information: Beethoven Symphony #5 by the New York Philharmonic on Sony. Rosters must be researched, along with addresses and surviving beneficiaries, to assure the appropriate musicians receive payments. It’s a monumental task for Shari Hoffman, Jennie Hansen and Fund administration.

This is what is now in place for digital radio streaming royalties and we know that more and more people are getting their music from these services and moving away from traditional analog or terrestrial radio. But the older forms of radio haven’t completely disappeared, and there are a host of other issues that still need addressing. This is why Fair Play, Fair Pay is so important.

In April, 2015, the MusicFirst coalition of recording artists, labels, managers, and other industry representatives signed on to support this bill that would require all forms of terrestrial and digital radio to pay royalties to musicians for the use of their recordings. Michael Huppe, who serves as President & CEO of SoundExchange, was quoted in the LA Times, “For decades, music services have gotten away with building their business on the back of hardworking musicians, paying unfair rates—and in the case of the $17.5 billion [terrestrial] radio industry, pay nothing at all, for the music they use. It is time that we properly pay the artists who put so much hard work into creating the music at the core of these services. If it weren’t for them, these stations would be broadcasting little more than static.”

Two major issues are at the heart of this bill: to reconcile the collection and distribution of royalty payments for all broadcast materials, both domestic and foreign, and to cover material that was previously excluded if it was recorded prior to 1972. The second would have a huge impact on many of our orchestras because recordings being broadcast are from archive recordings, some of which may date back to the 1950s and ‘60s. The first, allowing for the collection and distribution of royalty payments, would have a worldwide impact.

Currently the US does not collect and distribute royalties to its own citizens, nor does it distribute royalties for the portion of foreign material broadcast in this country. Most of the rest of the world—except China, North Korea, Iran, Iraq, and Rwanda—does. In the absence of a reciprocal agreement in place to pay their musicians for material broadcast in the US, other countries may have collected royalties payable to our musicians for music broadcast in their countries, but they were not required to distribute the money to US musicians. To remedy this situation, the AFM and major recording Locals attending the 2012 WIPO conference in Beijing successfully added “no collection without distribution” to the treaty, which has already garnered in excess of $10 million from foreign collectives. But millions of dollars have been withheld from our musicians because our government has not yet passed legislation that treats us fairly for the music we produce.

Radio and Internet broadcasters have always been a powerful lobby and have been actively fighting this proposed legislation with claims that it is too expensive and will destroy businesses. Terrestrial broadcasters have taken gross advantage of musicians for decades and it is time to right this injustice. A significant influx of additional money to this country and its musicians will improve the circumstances for tens of thousands of performers, and will have a positive impact on our communities and our country. The ICSOM Governing Board fully supports Fair Play, Fair Pay. I urge you to speak with, or write to, your legislators in support of this legislation.