American Music Fairness Act

[TheBigA]

The exemption is here:
No performance = no royalty.

Lots of performances occur accidentally or incidentally. What happens when a station runs a political speech by a candidate that ends with the playing of licensed music that is heard while that person speaks? Or runs a national program that plays an excerpt of licensed song?

Because as I said, paying the minimum will be much cheaper than paying a fine.

We already live in this world on the digital side. It's very hard to avoid playing licensed music. These license holders have not been forgiving. They want what belongs to them.

 

[PTBoardOp94]

Lots of performances occur accidentally or incidentally. What happens when a station runs a political speech by a candidate that ends with the playing of licensed music that is heard while that person speaks? Or runs a national program that plays an excerpt of licensed song?

Your spot news example is fair use, under the exemption for bona fide news coverage.
The second example would change rapidly. No longer would the EIB network use The Pretenders for their theme music, because the affiliates would force it.

Because as I said, paying the minimum will be much cheaper than paying a fine.

It sounds like you're preparing to buy "protection" from the mafia.

We already live in this world on the digital side. It's very hard to avoid playing licensed music.

It's really not hard. Podcast operations have been going without licensed music for years. The good thing the AMFA would do for broadcasters is unify the rules, so training staff is simpler.

 

[TheBigA]

The one aspect of the bill that jumps out at me is it's attempting to revise the digital copyright by just expanding it to "audio." Which completely ignores the process that led to the digital copyright. The reason the digital right was granted was because it was clear that digital media could allow CD quality copies to be made. That specific point was made during the hearings. The fact that copies can be made is at the core of copyright law, and why broadcast radio has not been subject to such laws in the past. Sure some people have at one time recorded music from the radio, but the result was not a full frequency copy.

This new law ignores that distinction, and makes broadcast radio subject to the same rules and procedures as digital media. That means getting rates approved by the Copyright Royalty judges, rather than negotiated royalties, as is the case with songwriters. That process is wrong and unfair. It also ignores the fact that most broadcast radio stations already pay digital royalties for this music. Equating broadcasting with digital means radio will be paying the same royalties twice for the exact same music which is also unfair. The songwriters recognized this in their negotiations, and gave broadcasters a discount in the digital royalty. Joe Crowley said a few weeks ago that such a thing is off the table, and there would be no negotiations.

It's clear listening to the congressmen yesterday that they want the two sides to negotiate. They don't want to force anything on broadcasters, but also don't want to ignore musicians. I've laid out where I think the areas of dispute are. We'll see where things go in the next attempt of this bill in 2023.

 

[TheBigA]

Your spot news example is fair use, under the exemption for bona fide news coverage.

These are people who wanted to charge Amazon for the :10 samples of music that they offer in order for people to buy songs. They won't accept "fair use" unless it's written in the law. They will pick every nit in order to get paid.

It sounds like you're preparing to buy "protection" from the mafia.

It's up to you. Pay them now, or pay them much more later.

It's really not hard. Podcast operations have been going without licensed music for years. The good thing the AMFA would do for broadcasters is unify the rules, so training staff is simpler.

You see unifying rules as a good thing. I don't. See my post above. Digital is not the same thing as analog. They should not pay the same way. Digital broadcasters do not operate under the same rules as broadcast, so we should not be treated the same for one part, while forcing us to operate under all of the other rules, such as payola. If they want to unify things, make digital media liable for payola in the US Code. We use they public airwaves. They don't. It's not the same thing.

 

[PTBoardOp94]

These are people who wanted to charge Amazon for the :10 samples of music that they offer in order for people to buy songs. They won't accept "fair use" unless it's written in the law. They will pick every nit in order to get paid.

I have good news. Fair use is provided statutorily by United States Code Title 17, section 107. News coverage is one of several exempt purposes enshrined in the law.

The specific duration of a song which would violate fair use is left vague in the law, which is why there was an opening for the legal complaint you reference.

It's up to you. Pay them now, or pay them much more later.

No. The choice is: pay and use their works, or don't pay and don't use their works. You're arguing with a straw man.

You see unifying rules as a good thing. I don't. See my post above. Digital is not the same thing as analog. They should not pay the same way. Digital broadcasters do not operate under the same rules as broadcast, so we should not be treated the same for one part, while forcing us to operate under all of the other rules, such as payola. If they want to unify things, make digital media liable for payola in the US Code. We use they public airwaves. They don't. It's not the same thing.

The domain of the AMFA is copyright law. MusicFirst and their supporters do not care about regulations tied to the Communications Act because the Communications Act does not bind them.

The way to make this work would be for the NAB to get some Congress members on their side to tie revisions to the Communications Act to the AMFA. But I sense the NAB isn't willing to accept the proposed royalty, even if there were concessions within the Communications Act.

 

[TheBigA]

I sense the NAB isn't willing to accept the proposed royalty, even if there were concessions within the Communications Act.

The NAB speaks and acts as a representative of the members in the organization. I can tell you that not every radio station is a member. So there will likely be hundreds of stations that will not be a part of ANY deal the NAB makes. At least that was the situation 11 or so years ago when the NAB made a voluntary proposal to address this issue. At that time dozens of stations quit the NAB, and many more said plainly they would not accept the deal. THAT is what MusicFirst has to look forward to in negotiations.

But contrary to what you wrote above, the NAB this week wrote an editorial on this subject, and I posted it earlier in this thread,

LeGeyt Calls On Record Industry To Work With Radio On ‘Comprehensive’ Royalty Approach.

As the House Judiciary Committee considers the American Music Fairness Act this afternoon during a markup hearing, the NAB is chiding the music industry for repeatedly rebuffing radio industry efforts

www.insideradio.com

I mentioned the payola rules specifically because they are also part of the US Code, just like copyright, so it is addressable outside of the Communications Act. But this is the problem when you have a law like AMFA which is written by one side of an issue in an attempt to force the other side to accept, and why Congress won't pass a law like this without some involvement from radio.

 

[davideduardo]

No. The choice is: pay and use their works, or don't pay and don't use their works. You're arguing with a straw man.

Even if you try to avoid playing a song, it is hard to prevent. A live event cut-in, news coverage of a charity ball with an orchestra and many other cases can create accidental plays. And in the case of artist and composer, the new kid on the block is known for being extremely aggressive in his business practices.

The way to make this work would be for the NAB to get some Congress members on their side to tie revisions to the Communications Act to the AMFA. But I sense the NAB isn't willing to accept the proposed royalty, even if there were concessions within the Communications Act.

Opening the Communications Act to revision today is a dangerous idea.

It's obvious from the attitude in government towards radio digital streams that nearly nobody knows how many stations are not profitable or are very marginal. And they don't understand that it is the few big artists and their labels that get most of the artist/label fees. So allowing ignorant members of Congress who know nothing about radio to rewrite the Act is frightening.

Allowing AOC and Marjorie Tyler Green to participate in such legislation is like a movie called "Nightmare on First Street".

 

[TheBigA]

No. The choice is: pay and use their works, or don't pay and don't use their works. You're arguing with a straw man.

The problem with that logic is we have stations right now that are being sued by GMR for playing songs without a license. These stations were contacted by GMR and told they were in violation, and they continued to play unlicensed music. Now they're in court facing a huge lawsuit. So we have examples where stations are apparently willfully violating the law. I understand that we're talking about two different royalties. But I'm showing you that some stations will do things they know will put themselves in legal trouble. It's not so simple to assume that stations that want to avoid a royalty will not play music.

 

[semoochie]

Can't stations also get into trouble with the FCC for noncompliance?

 

[davideduardo]

Can't stations also get into trouble with the FCC for noncompliance?

The FCC is not the government agency that is involved with music licensing. If stations do not pay their bills or obligations, that's generally not an FCC matter unless the bill is for FCC fees.

 

[PTBoardOp94]

Even if you try to avoid playing a song, it is hard to prevent. A live event cut-in, news coverage of a charity ball with an orchestra and many other cases can create accidental plays. And in the case of artist and composer, the new kid on the block is known for being extremely aggressive in his business practices.

As I explained to BigA last night, spot news coverage is exempt by law. Also recall that in the USA when a frivolous lawsuit is filed, the plaintiff pays for the defendant's legal expenses.

So I say to the new kid: "Go ahead. Make my day."

Allowing AOC and Marjorie Tyler Green to participate in such legislation is like a movie called "Nightmare on First Street".

There are always plenty of members of Congress who are far more ideological than serious legislators. 40 years ago you could have stuck Newton Gingrich into the list, and 30 years ago Bernard Sanders. By this logic, you can oppose all legislation, permanently.

It's not so simple to assume that stations that want to avoid a royalty will not play music.

This is nihilist thinking, by which you can oppose all legislation.
"We shouldn't ban heroin, because people will use heroin anyway"

Aside from all the logical fallacies, I really do understand the problematic nature of this bill for radio from an economics perspective.

Philosophically, I'm with the musicians on this. There should have had a performance royalty from the dawn of recorded music. Just because every congress since the days of Calvin Coolidge or Herbert Hoover has whiffed on it, doesn't mean it shouldn't be fixed today.

 

[b-turner]

Someone mentioned it seemed like paying the mafia. Dealing with some of the reps from ASCAP, BMI and SESAC, it is not far removed. I worked one station that was losing money and we bought a license for our production library and bumper music (no syndicated shows) and actually had a rep say we had to send them an affidavit monthly swearing we played none of their music.

 

[Kelly A]

Someone mentioned it seemed like paying the mafia. Dealing with some of the reps from ASCAP, BMI and SESAC,

Over the years I've heard that same accusation, but unlike strong-arming from illegal activities, most of the civil actions taken against stations by ASCAP and BMI who violated the rules, have ultimately stuck.

 

[TheBigA]

This is nihilist thinking, by which you can oppose all legislation.
"We shouldn't ban heroin, because people will use heroin anyway"

There are nihilist radio owners. Ed Stoltz might be included in that list. The enemies of this bill are not iHeart and Cumulus. They are the small single station owners who will fight any law.

Philosophically, I'm with the musicians on this. There should have had a performance royalty from the dawn of recorded music. Just because every congress since the days of Calvin Coolidge or Herbert Hoover has whiffed on it, doesn't mean it shouldn't be fixed today.

The problem then wasn't congress. The problem then was the music industry. Back in the 20s & 30s, when every other country in the free world was setting up the structures and passing the laws to get these royalties, the American record labels and artists were suing radio stations, trying to prevent any airplay of their music. They didn't want to get paid. They wanted to preserve the status quo for their existing system. Then they lost every legal challenge they made. The radio industry won the right to play recorded music in 1937. The music industry never set up the structure to collect royalties (until SoundExchange was formed in the 1990s) and they never organized to campaign for this kind of royalty until the 1950s.

The NAB has already proposed a form of payment to artists. The major radio companies are already in support of this if they could get a discount on digital royalties. That's all it would take to get NAB support. That would lead to a battle within the radio industry between the big companies and the smaller single-station owners. It wouldn't be pretty. But that's how I see this playing out.

 

[davideduardo]

Philosophically, I'm with the musicians on this. There should have had a performance royalty from the dawn of recorded music. Just because every congress since the days of Calvin Coolidge or Herbert Hoover has whiffed on it, doesn't mean it shouldn't be fixed today.

That negates the quid pro quo of promotional value of airplay. While playing of music in a restaurant or store or event has little or no reciprocal value, airplay does produce value for the recording artist and label.

 

[davideduardo]

.The radio industry won the right to play recorded music in 1937. The music industry never set up the structure to collect royalties (until SoundExchange was formed in the 1990s) and they never organized to campaign for this kind of royalty until the 1950s.

But we’ll in advance of that date, stations were playing gramophone recordings. In fact, the major impediment to playing recordings in the 30’s was the musicians union, which wanted radio stations and webs to have liv musicians, even at very small outlets.

The NAB has already proposed a form of payment to artists. The major radio companies are already in support of this if they could get a discount on digital royalties. That's all it would take to get NAB support. That would lead to a battle within the radio industry between the big companies and the smaller single-station owners. It wouldn't be pretty. But that's how I see this playing out.

The real issue is that smaller stations are,at best, marginally profitable and many run at a loss. The idea of another expense is frightening to those stations.

 

[TheBigA]

But we’ll in advance of that date, stations were playing gramophone recordings. In fact, the major impediment to playing recordings in the 30’s was the musicians union, which wanted radio stations and webs to have liv musicians, even at very small outlets.

The musicians union was acting on behalf of the artists. For a long time, it worked. It led to the formation of the Grand Ole Opry, the Louisiana Hayride, the WLS Barn Dance, and many other radio shows that featured live performances.

The musicians union is a signatory to this act. If the AMFA were to pass, musicians would get a 1% royalty. That's what they currently receive from digital airplay.

The real issue is that smaller stations are,at best, marginally profitable and many run at a loss. The idea of another expense is frightening to those stations.

Part of the problem is that the royalty would be based on revenues and not profits. The recording industry is familiar with procedures in which expenses always exceed revenues. That's a game they've played with their artists for years.

 

[TheBigA]

That negates the quid pro quo of promotional value of airplay. While playing of music in a restaurant or store or event has little or no reciprocal value, airplay does produce value for the recording artist and label.

The way to assess that is to compare the revenues of artists who receive airplay vs. those who don't. I'm specifically talking about currents-based radio stations, not classic formats. I get what the recording industry says about radio stations that mainly play classic hits. There is very little promotional value there. Especially those that are run with no hosts. But in formats that play a percentage of currents, there is a lot of promotional value. That's why I believe any royalty should be format specific, and not applied across the board as though all formats are equal. One way to encourage stations to hire hosts would be to say that hosted radio stations would be exempt from a royalty, while unhosted jukeboxes would have to pay.

 

[davideduardo]

The musicians union was acting on behalf of the artists. For a long time, it worked. It led to the formation of the Grand Ole Opry, the Louisiana Hayride, the WLS Barn Dance, and many other radio shows that featured live performances.

No, they were working on behalf of union musicians in every city who would play thier rendition of hit songs and standards, not whoever recorded it first.

The Opry and raw KWKH show and a variety of “big signal” station live shows originated well before the musician union got its great strength and power over radio, which was after the mid-thirties.

The musicians union is a signatory to this act. If the AMFA were to pass, musicians would get a 1% royalty. That's what they currently receive from digital airplay.

Before the later 40’s, the hits were the songs, not the artists. Every band played the current favorites, and in towns like Knoxville and Topeka and Youngstown, local bands played on the radio. In fact, much of the reason for man, many stations to originally be locate in hotels was to have easy access to the bands that played in the hotel’s ballroom.

Today, we have, usually, one singe version of a song. other than tours by the artist who made the hit, there is little in the way of covers played live the radio.

All the early legislation was intended to protect those local, live performance musicians, not the band on any of the often many recorded versions of the same song.

Part of the problem is that the royalty would be based on revenues and not profits. The recording industry is familiar with procedures in which expenses always exceed revenues. That's a game they've played with their artists for years.

But now the bulk of recorded material is owned by just a couple of labels. In the past, there wer hundreds of labels and in many cases they did not own the rights to the songs… complicated by most songs having many recorded versions on different labels.

 

[TheBigA]

No, they were working on behalf of union musicians in every city who would play thier rendition of hit songs and standards, not whoever recorded it first.

I thought this was obvious, but artists are members of the musicians union. So the union took the side of the artists, such as Paul Whiteman, in legal fights against radio. Otherwise the artists would have no representation.